Exploring Gladue: What is new with Gladue?

The evolution of Gladue principles has reshaped how the Canadian justice system addresses the over-representation of Indigenous peoples in the penal system, extending beyond sentencing to impact various stages of legal proceedings. Initially designed to provide a more informed and compassionate approach to sentencing, Gladue principles have introduced both progress and challenges as they become integral to other aspects of the justice system.

How Did Gladue Principles Evolve to Impact Bail Decisions?

The application of Gladue principles, traditionally associated with sentencing, has undergone a significant evolution. Originally intended to address the over-representation of Indigenous peoples in the penal system during sentencing, these principles are now being adapted to the bail stage, reflecting a growing awareness of the unique challenges faced by Indigenous accused individuals.

The pivotal moment in this evolution came with the Ontario Court of Appeal case R. v. Robinson (2009). For the first time, the court recognized that Gladue principles were not confined to sentencing but should also inform bail decisions. The court adjusted the application of Gladue principles to consider both the unique systemic factors influencing the accused's background and the types of release plans that would be appropriate given their Indigenous heritage (R. v. Robinson, [2009] O.J. No. 1284 (OCA)).

However, the court's decision in Robinson was not without its challenges. A critical flaw was its presumption of guilt by referring to the accused as the "offender," which contradicted the presumption of innocence central to bail proceedings (R. v. Robinson, [2009] O.J. No. 1284 (OCA)). This presumption highlighted the difficulties in applying Gladue principles at the bail stage, where the primary concern is not sentencing but ensuring that conditions are met for a fair release.

Further reinforcing the importance of Gladue principles at bail hearings, R. v. Papequash (2021) clarified that failing to consider these principles constitutes a serious legal error. The court emphasized that simply acknowledging Gladue principles without integrating them meaningfully into bail decisions is insufficient (R. v. Papequash, 2021 ONSC 727).

In 2019, the Criminal Code of Canada was amended to explicitly require courts to give particular attention to the circumstances of Indigenous accused and other vulnerable populations during bail decisions. This legislative change was a step forward in recognizing the need for a tailored approach to bail that accounts for systemic disadvantages (Criminal Code of Canada, RSC 1970, c 50, s 493.2).

Despite these advances, applying Gladue principles at the bail stage has introduced new challenges. One unintentional consequence is the tendency for legal professionals—prosecutors, defense lawyers, and judges—to focus on rehabilitating the accused rather than adhering to the principles of bail. The Supreme Court of Canada has stressed that bail conditions should not be used for rehabilitation or punishment. For instance, in R. v. Antic (2017), the court clarified that bail conditions must address specific statutory criteria and should not aim to alter the accused’s behavior or penalize them (R. v. Antic, 2017 SCC 27).

Moreover, there is concern that Gladue’s application might lead to overly burdensome bail conditions. Evidence suggests that accused individuals, especially those from marginalized backgrounds, are often subject to excessive conditions that may not be directly related to the statutory grounds for detention. In R. v. Zora (2020), the Supreme Court highlighted that such conditions contribute to a cycle of incarceration, particularly affecting the most vulnerable populations. The imposition of restrictive bail conditions can lead to frequent breaches and further strain on an already overloaded justice system (R. v. Zora, 2020 SCC 14).

The most pressing challenge is that Gladue principles, which mitigate moral culpability during sentencing, do not naturally fit with the bail stage, where the focus is on risk assessment and ensuring compliance with statutory requirements. Cases like R. v. McCrady (2016) and R. v. Sledz (2017) illustrate efforts to integrate Gladue principles into bail decisions. The courts have recognized that Gladue factors must be considered to address systemic discrimination and the over-representation of Indigenous peoples in remand. They have underscored the need to evaluate each case individually and avoid contributing to the problem of over-incarceration (R. v. McCrady, [2016] ONSC 1591; R. v. Sledz, 2017 ONCJ 151).

What Issues Are Hindering the Success of Gladue Reports in the Justice System?

In “Twenty-Five Years of Gladue: Indigenous ‘Over-Incarceration’ & the Failure of the Criminal Justice System on the Grand River” (King & Hill, 2024), the authors explore several significant issues impacting the Gladue process and its effectiveness. According to the report, Gladue processes have shown potential for positive outcomes, but they face substantial challenges. One example highlighted is a participant from the BRISC workshop who experienced a transformative change through a restorative approach enabled by Gladue. This participant's success contrasts with the broader issue where many Indigenous offenders, especially those involved in minor crimes, struggle to access or even be aware of restorative diversion programs due to resource limitations and an overwhelmed criminal justice system (King & Hill, 2024, p. 13).

Next, there is a critical shortage of resources dedicated to Gladue practices and rehabilitation efforts. The process for confirming Indigenous identity within the justice system is problematic, as offenders are often asked if they are Indigenous with minimal verification. This has led to instances of identity fraud, where non-Indigenous individuals exploit Gladue principles to avoid incarceration. This exploitation puts additional strain on Gladue writers and contributes to delays and backlogs in the system. Efforts to address these issues, such as the introduction of “No Gladue Reports” for unverified claims, are still developing and face significant challenges due to the judges' limited ability to assess genuine Indigeneity (King & Hill, 2024, p. 15).

Additionally, the rise of self-identification and identity fraud has become a serious concern. The lack of a thorough verification process for Indigenous identity has allowed non-Indigenous individuals to exploit Gladue principles. This problem exacerbates the workload for Gladue writers and leads to frustrations within the justice system. The current ad hoc approaches to managing identity fraud and Gladue processes highlight a broader issue of inadequate policy and oversight, which leaves genuine Indigenous individuals at a disadvantage when seeking support (King & Hill, 2024, p. 16).

According to the report, the Gladue process often appears to prioritize offenders over victims, leading to dissatisfaction among victims and their families. Many Indigenous communities feel that the Gladue process, while intended to reduce incarceration, fails to provide adequate support and justice for victims. The lack of resources and support for victims, especially when offenders are reintegrated into the community, contributes to a sense of injustice and re-traumatization for those affected by violent crimes. (King & Hill, 2024, p. 17).

Lastly, the broader issue is the failure of the Gladue process to address systemic challenges within the criminal justice system effectively. Despite its potential, Gladue has not significantly alleviated over-incarceration or provided sufficient support for victims. The report concludes with a call for a reevaluation of the justice system, emphasizing the need for compassionate, community-led solutions that move beyond the existing colonial frameworks. (King & Hill, 2024, p. 18).

In reflecting on this report, I believe it’s crucial to address the role of the justice system in determining Indigenous identity. In my eyes, the justice system, including judges, Crown attorneys, and defense counsel, is not ideally positioned to gatekeep or make determinations about who is Indigenous. These professionals should adopt a stance of inclusivity and acceptance, allowing those who identify as Indigenous to access Gladue principles without undue scrutiny.

From my perspective, this approach places significant responsibility on specialized resources, such as Gladue writers and Indigenous justice programs, to navigate and verify claims of Indigenous identity. This responsibility is a practical necessity rather than a perfect solution, given the complexities surrounding Indigenous identity. Due to the impacts of colonization, many Indigenous people face challenges in proving their heritage or community connections. This issue arises from the historical and ongoing disruptions to Indigenous ways of life and record-keeping, which can make it difficult for individuals to provide traditional forms of proof.

The question then becomes: Does the inability to provide such proof mean that individuals are no longer accepted as Indigenous? This is a delicate issue, as Indigenous identity is multifaceted and deeply personal. Historically, Indigenous communities have had their own methods for recognizing and confirming membership, based on cultural connections and community ties. These methods were disrupted by colonization, leading to the current challenges within both community-based programs and the justice system.

I cannot answer this question definitively; it is for Indigenous communities and their programs to address. They are best positioned to navigate the nuances of identity and determine the standards for inclusion and support.

But, its something to think about.