The Gladue Analysis: Shedding Light on Appropriate Procedures and Sanctions

Abstract

This paper intends to give practical tools to legal actors to better implement the second part of the s 718.2(e) of the Criminal Code analysis for sentencing Indigenous people, as first laid out in the Gladue case of the Supreme Court of Canada. Following this, when sentencing an Indigenous person, judges have to pay attention to “the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection”. Drawing from case law, research and the work of Commissions and Public Inquiries in Canada, the author intends to provide practical tools to legal actors to support them in fully engaging with it. The paper identifies and describes three elements that must be considered by courts in this analysis: (1) the community’s perspectives, needs and alternatives to incarceration, (2) The Aboriginal Perspective, which was interpreted as including the "laws, practices, customs and traditions of the group” and (3) Culturally sensitive, appropriate and responsive sentences addressing the “underlying cause of the criminal conduct”. Its main focus is on Indigenous law and providing practical and clear ways for judges and legal actors to consider it.

The content of this paper was first developed for Legal Aid BC’s Best Practices Guide for Writing Gladue Reports and Understanding Gladue Principles, with the intent to support Gladue writers in providing more information to courts with regard to this part of the Gladue analysis and support anyone who is interested in better understanding Gladue principles. This paper should support legal actors in better engaging with it.

Keywords: Gladue, Indigenous law, Ipeelee, Criminal Law