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Gladue: Beyond Myth 107
The reality is that even for less serious offences, including those involving the
administration of justice or property crime, Gladue is not factoring into the many
decisions where it could have the most impact. 114 Underlying the many cases
where Gladue has arguably not made a difference is a lack of resources – to
prepare Gladue reports, to investigate options for the accused, and to make
appropriate submissions to the court, as well as resources in the community to
actually provide relevant programs and supports to the accused and to victims.
The race to incarcerate flies in the face of reason and limits the availability of
alternatives to incarceration – both in terms of new statutory limits on discretion
in sentencing and in terms of the diversion of scarce resources that could
otherwise be directed to community-based programs that can actually work, which
leads to the next myth.
V.
MYTH #3: ABORIGINAL OVER-REPRESENTATION IS AN
INTRACTABLE PROBLEM THAT IS TOO COMPLEX TO BE DEALT WITH
THROUGH GLADUE
There are a number of components to this myth. One is the idea that
sentencing is too late in the game to effect change. However, the courts and policy
makers in various jurisdictions have, in fact, applied Gladue principles to other
stages in the criminal justice system – notably bail 115 (where Aboriginal people are
more likely than non-Aboriginal accused to be denied bail 116 ), but also
corrections 117 and other proceedings where an Aboriginal person’s liberty is at
stake, such as Mental Health Review Board decisions for individuals found not
criminally responsible on account of mental disorder 118 and parole ineligibility
decisions. 119 The Ontario courts have taken the lead in this regard and others
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“Exceptionalism and Deputization under Today’s NDP: Neo-liberalism, the Third Way, and
Crime Control in Manitoba,” (2011) 26:1 CJLS 113.
See e.g. R v Hall, supra note 29; R v CF, 2005 MBQB 227, 197 Man R (2d) 183. As Kent Roach
has noted, the cases that get reported and appealed tend to be those involving serious charges, so
the public record does not fully reflect the extent to which Gladue is not being applied.
See e.g. R v Robinson, 2009 ONCA 205, 95 OR (3d) 309; and R v Neshawabin, 2008 CanLII
73617, 2008 CarswellOnt 8598 (WL Can) (ON SC).
Gladue, supra note 5 at para 65; AJI Report, supra note 1.
For example, the Correctional Service of Canada has directed that all CSC staff should consider
all decisions affecting Aboriginal persons in custody in accordance with “Gladue principles”;
Correctional Service of Canada, Commissioner’s Directive 702 – Aboriginal Offenders (Ottawa:
Correctional Service of Canada, 2008).
R v Sim (2005), 78 OR (3d) 183, 201 CCC (3d) 482 (ON CA).
R v Jensen, 74 OR (3d) 561, 195 CCC (3d) 14 (ON CA).