Towards Accountability and Fairness for Aboriginal People: The Recognition of Gladue as a Principle of Fundamental Justice That Applies to Prosecutors

Abstract

The Gladue decision can be considered a landmark decision by the Supreme Court of Canada that recognized for the first time important duties that are imparted to judges when sentencing Aboriginal offenders. This piece argues that while Gladue remains a partial response to the problem of Aboriginal overrepresentation in Canadian prisons, expanding its application to other state agencies is a necessary measure to facilitate its remedial aim. Indeed, as an important way forward, this piece argues that the Gladue principle and ethos should be expanded beyond the sentencing stage to apply to all state agencies that can potentially affect the freedom interests of Aboriginal people, particularly in the criminal justice system. Hence, to ensure greater protection and facilitate accountability, it suggests that this principle should be recognized as a principle of fundamental justice under s. 7 of the Charter. As part of this argument, this analysis specifically focuses on the rationales, applicability and implementation of this principle to prosecutors.

Note: Reproduced by permission of Thomson Reuters Canada Limited.

Keywords: Sentencing; Aboriginal; Gladue; Charter; Principle of Fundamental Justice