One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal

Criminal Law Quarterly, Vol. 54, pp. 470-505, 2009

36 Pages Posted: 23 Jul 2010

See all articles by Kent Roach

Kent Roach

University of Toronto - Faculty of Law

Date Written: 2009

Abstract

This paper provides an outline of the appellate jurisprudence interpreting and applying the Supreme Court of Canada’s jurisprudence in Gladue. The decision interpreting the instruction in s. 718.2(e) of the Criminal Code for judges to consider reasonable alternatives to imprisonment “for all offenders, with particular attention to the circumstances of aboriginal offenders” inspired both intense hope and intense controversy. The acceptance of Gladue, as well as its failure to reduce Aboriginal overrepresentation, begs the question of how Gladue is applied in courts throughout the country. The first part of this article briefly outlines how the Supreme Court interpreted s. 718.2(e) in Gladue and in the subsequent case of Wells. The second part of this paper examines reported sentence appeals taken by the Crown from the sentencing judgments in which the trial judge has applied Gladue. The third part of this article examines appeals by the accused alleging that the trial judge has erred in applying s. 718.2(e) and Gladue. The fourth part of this article examines decisions that deal with the scope of Gladue, and in particular whether it applies to non-sentencing proceedings such as bail, contempt and dangerous offender proceedings. If Gladue remains an important step forward in recognizing the failures of the justice system with respect to Aboriginal people, its implementation at a national level represents two disappointing steps back: the failure to reduce Aboriginal overrepresentation and the focus on the seriousness of the offence.

Keywords: Gladue, Wells, imprisonment, s. 718.2(e), Aboriginal offender, overrepresentation, sentence appeal

Suggested Citation

Roach, Kent, One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal (2009). Criminal Law Quarterly, Vol. 54, pp. 470-505, 2009, Available at SSRN: https://ssrn.com/abstract=1646683

Kent Roach (Contact Author)

University of Toronto - Faculty of Law ( email )

Toronto, Ontario M5S 1A1
Canada
416-946-5645 (Phone)
416-978-2648 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
520
Abstract Views
1,955
rank
69,366
PlumX Metrics