Indigenous Justice: But when will we be heard? (Gladue principles)

By Boris Villatoro

February 24, 2023

Introduction

While making up only 3% of the national population, 26% of male prisoners are persons of Indigenous

descent. Yet, in spite of these statistics the legal tools are available to counteract this trend but they remain

underutilised. The legal tool is one’s ability to have their hearing with Gladue principle considerations.

However, not all Indigenous persons are provided the proper knowledge to successfully apply the

principles to their case. 

Indeed, this week there were two high-profile sentencing appeals in Ontario based on Gladue wherein a

few Indigenous men had their appeal denied and another where an Indigenous man had his acquittal

upheld. So how do courts justify their decisions to differentially judge persons under Gladue?

Analysis

Gladue principles refer to a 1995 amendment to s. 718.2(e) of the Criminal Code of Canada. The

amendment allowed for Indigenous persons to have their background history considered in a court’s

sentencing decisions. Yet, in order to have one’s matter heard, a defendant cannot simply state that they

want to have Gladue principles apply, they must first file a valid Gladue report. 

The process of creating a Gladue report is oftentimes lengthy and technical as it must pass a series of

checklist items expected by the court to not only prove its relevance but also that you are deserving of

having Gladue principles apply. The creation of a Gladue report can thus serve as a substantial barrier for

any applicant defendant as it is individually based on the lived experience of the applicant and the details

of their case. As such, the ability to have one’s case fully considered can often depend on the capacity of a

legal practitioner to successfully link the story of the accused to the rationale for their appeal. 

Recalling the aforementioned recent appeals cases, the counsel of a man accused of second-degree murder

was able to convince the court of the validity of his Gladue principles. Herein, the court coincided with the

defence that the jury ought to be prevented from hearing of the man’s violence past as it can play into

stereotypical portrayals of Indigenous persons. In part this was understood to be true due to the ability of

the counsel to link his history with alcoholism to his violent actions.

Meanwhile, in the drug-trafficking case, the defence counsel was unable to raise substantial links between

the abandonment suffered by the accused and the severity of their act. These men are now sentenced to

five years in a carceral institution. 

Conclusion 

Herein, the construction of a Gladue report may be highly technical, professional, and time-consuming.

However, the results may be life-changing for any prospective individual faced with the difficulty of being

accused of a criminal act. Herein it is vital that every step of the situation be taken into deep consideration

and it is vital to discuss with a criminal law expert to allow you to successfully have your matter understood.