- First created in 2001, Gladue court is a specialized court intended to address the over-representation of Aboriginal people in Canada’s criminal justice system.
- The Supreme Court of Canada decision of R v. Gladue, [1999] 1 S.C.R. 688 initiated the inception of Gladue Court.
- According to section 718.2(e), every court in Canada is required to be a Gladue court, and must take into account Gladue sentencing principles when an Aboriginal person's liberty is at stake.
- In some jurisdictions there are specialized Gladue courts that deal only with Aboriginal accused.
- For example, in Toronto the first Gladue court was held at Old City Hall, subsequent Toronto locations have since been created.
- The existence of Gladue Court is a step towards recognizing the cultural genocide perpetrated against Aboriginal people by the Canadian Government, starting in the colonial era and arguably carrying on until today.
- Gladue court's existence is a step in actualizing the reparations that have been promised to Aboriginal people.
- Aboriginal people are the most over-represented population in Canada’s criminal justice system.
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The following statistics cited in R v Ipeelee demonstrate overrepresentation of Aboriginal people:
- In 1988, aboriginal persons were only 2 percent of the national population but 10 percent of federal inmates
- In some provinces, 32 percent of the federal inmates were aboriginal persons
- In one province, 60 percent of the provincial inmates were aboriginal persons
- Gladue court attempts to account for the ramifications of residential schools, racist governmental policies and laws, and how these and other government imposed factors contributed to the disproportionately high rates of incarceration for Aboriginal people.
- In 1996, Section 718.2(e) of the Canadian Criminal code was changed to mandate that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”.
- Prior to R. v. Gladue this applied only to Aboriginal people living on reservations according to traditional Aboriginal heritage, following R. v. Gladue these principles can apply to any Aboriginal person.
- The Gladue Factors to be considered include:
- family circumstances
- support network
- residential schools
- unemployment
- lack of educational opportunities
- dislocation from aboriginal communities, loneliness and community fragmentation
- family involvement in criminal environment
- loss of identity, culture and ancestral knowledge
- substance abuse
- poverty
- racism
- abuse
- witness to violence
- As well, where the crime is relatively minor, the court should consider Aboriginal-based sentencing principles such as restorative justice.
- Community members and the victim are incorporated in determining a fit sentence for an Aboriginal accused person.
- When considering the Gladue Principle, the court is not at liberty to impose a sentence outside the legally acceptable range.
- This means that if there is a minimum sentence of imprisonment for a particular criminal offence, the court cannot use the Gladue Principle to impose a sentence lower than the minimum for that offence.
- A Glaude report is typically ordered prior to sentencing. It is a type of pre-sentecning and bail hearing report that a Canadian court can request when considering sentencing an offender of Aboriginal background.
- Its's contents inform the court of the accused's circumstances in a Gladue context.
