Gladue Practices in the Provinces and Territories

7. Conclusion

While the research did not include, as part of its scope, a caselaw review of the various interpretations of Gladue by the provincial and territorial judiciaries, it is noteworthy to point to the work of Kent Roach in this areaFootnote 16 and recognise that the approach taken in different provinces and territories with respect to the implementation of Gladue like policies and practices has likely been influenced by the way each provincial and territorial appellate court has interpreted Gladue.

Despite the limitations already noted, this research is a first status report on current practices in the provinces and territories that reflect the principles set out in Gladue. The information obtained through the questionnaire that was developed for this study provides a general perspective of the challenges and possibilities involved in adapting the justice system to the circumstances of Canadian Aboriginal peoples and identifies some approaches for future research. The analyses conducted were based on the respondents’ knowledge and points of view led to the following findings:

  • Overall, initiatives and programs that comply with the Gladue decision were identified in all jurisdictions that participated in the study. Some of these initiatives and programs should be explored further and may even serve as models for other jurisdictions.

  • The specialised courts identified in this study courts are one of the most exemplary initiatives in the application of the Gladue decision in the sense that they appear to have implemented processes that enable them to ensure that information about an Aboriginal accused’s/offender’s background and the kinds of non‑custodial sentences available to Aboriginal accused/offenders are incorporated systematically into the bail and sentencing decision‑making procedures  hence allowing  the court to prepare decisions in keeping with the directive of the Supreme Court in Gladue as well as those working in these courts (e.g. defence lawyers, Crown attorneys/prosecutors and judges) are knowledgeable of the range of programs and services available to Aboriginal people.  Although the definition of this type of court needs to be further refined, the number of specialized courts identified in this study provides examples of the judicial system’s ability to adapt to the needs of Aboriginal persons. In total, 19 specialized courts for Aboriginal accused (whether or not they deal exclusively with cases involving Aboriginal accused) were listed in seven provinces and territories.

  • Gladue training and awareness activities for justice system officials, including judges, are provided in about half the jurisdictions. The quality of the training particularly on preparing pre‑sentence or independent sentencing reports was, however, questioned by one of the participants. In his view, one of the major weaknesses of the training provided in his jurisdiction is that the trainers do not always have an extensive knowledge of Aboriginal culture and background. Since the other participants did not refer to the quality of the training provided, this is an individual point of view that is relevant, however, insofar as the quality of training services should certainly be evaluated to ensure that their objectives are being met.

  • A number of participants highlighted the relevance and importance of Gladue type information in the sentencing process of Aboriginal offenders. Pre‑sentence reports are the method most often used to provide Gladue type information to the court.Footnote 17 In five jurisdictions, independent reports (or Gladue reports) are an alternative method sometimes used to convey this information. According to one participant, independent reports are more adapted to the reality and the problems experienced by Aboriginal persons and, therefore propose more realistic and appropriate conditions than pre‑sentence reports. For another participant, the costs associated with preparing this type of report, the time required and the need to make court staff aware of the usefulness of these independent reports are real obstacles to their more generalized use.

  • Less than half the jurisdictions reported that sentencing recommendations made by the Crown are systematically informed by the kinds of non‑custodial measures available to Aboriginal offenders. In addition, in two jurisdictions there appear to be formal administrative policies/directives requesting that Crown attorneys/prosecutors systematically submit Gladue type information to the court.Footnote 18

  • Seven jurisdictions stated that there were partnerships between some of their courts and NGOs. These NGOs are, for the most part, considered Aboriginal NGOs. Moreover, according to the participants, in most jurisdictions these NGOs are responsible for ensuring that Gladue type information is incorporated systematically into the sentencing process. They are also involved in preparing independent sentencing reports, in the decision‑making processes regarding bail and parole for Aboriginal persons, and in implementing various community justice and aftercare programs. The major challenge raised appears to be establishing and maintaining an effective channel of communication between the justice system and the NGOs. The data suggests that sometimes institutions tend to work in silos, which seems to hinder the efficient operation of the court process.

  • Most jurisdictions reported that bail decision‑making processes are informed by Gladue type information. However, the participants noted that it may be difficult to collect quality information within the time frame required for bail hearings. Additionally, communication between the Crown and Aboriginal communities that are a long way from urban centres seems to present a significant challenge. In this sense, Ontario has established a pilot project in some regions, the Bail Consultation Program, to ensure that Aboriginal accused in remote communities are not transported for bail hearings without consideration being given to other forms of release that could respond to the offence committed while keeping the accused in his or her community. Because of this pilot program, police officers can assess directly with a Crown attorney the possibility of an alternative sentence before the individual is transported from his or her community. This program also aims to improve the relationship between the Crown and Aboriginal police.

  • Parole decision‑making processes also appear to be informed by Gladue type information in most of the participating jurisdictions. 

  • Although there are community justice programs in most jurisdictions, one of the participants commented that one of the major problems is inadequate information sharing, coordination, integration and communication among the various stakeholders in the justice system and those responsible for providing community justice and health programs (e.g. substance abuse treatments, mental health, etc.) This defect, which seems to be one of the key challenges of Aboriginal justice, undoubtedly affects the consistency and effectiveness of the delivery of services for Aboriginal individuals who must make their way through the system. Another challenge that was raised is the inability sometimes observed in some communities to take responsibility for providing services and community justice programs. Last, it should be mentioned that legal aid programs may also play an important role in applying Gladue principles in their jurisdiction as demonstrated by certain exemplary practices put in place by Legal Aid Ontario.

8. Areas for Future Justice Research

Establishing partnerships between non-governmental organizations (NGOs) and the justice system appears to be an approach that a number of jurisdictions have adopted in an attempt to find solutions to the situation experienced by Aboriginal persons in the Canadian justice system. In fact, partnerships between NGOs and the justice system seem to be an interesting option for bringing the justice system and Aboriginal communities closer together. It is possible that this rapprochement could encourage the adoption of approaches that are sensitive to Aboriginal circumstances and needs within the justice system. Although analyzing these partnerships was not a goal of this research, the participants' remarks suggest that the effectiveness of these partnerships may vary. By analyzing the conditions and characteristics of the partnerships that seem to show some success (e.g. the Mi'kmaw Legal Support Network) could make it easier to understand the challenges faced by those jurisdictions as well as the preferred solutions for better integrating the justice system with communities. This information could be useful to jurisdictions that continue to seek the integration of services provided to Aboriginal individuals involved in the justice system. Likewise, a study on the trajectory of Aboriginal persons in the justice system, including their trajectory of using services, could provide a better understanding of the factors preventing the effective delivery of services already provided. In addition, this understanding would not only improve existing services (if required) but would also facilitate the creation of new programs or governance structures that would assist in bringing the justice system and Aboriginal communities closer together.

Date modified: