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Criminal - Gladue (Indigenous Defendant)

. R. v. R.S.

In R. v. R.S. (Ont CA, 2023) the Court of Appeal considers the leading indigenous case of Gladue, here in a sentencing appeal context:
[34] Gladue prescribes a method that must be followed when determining a fit sentence for Indigenous offenders, regardless of the seriousness of a particular offence: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 59, 84-86. But as the sentencing judge noted, Gladue does not establish a “race-based discount”: see also Ipeelee, at para. 75. The overarching purpose remains achieving a proportionate sentence for Indigenous offenders.
. Mitchell (Re)

In Mitchell (Re) (Ont CA, 2023) the Court of Appeal considered the Ontario Review Board's Gladue (indigenous defendant) treatment:
(2) The Board’s consideration of Gladue principles was inadequate

[18] Although we conclude that the Board’s decision to detain the appellant in a maximum security setting is reasonable, we note that the Board’s consideration of the Gladue Report, and Gladue principles generally, was inadequate.

[19] The Board referred to the Gladue Report several times in its reasons and acknowledged that the appellant “had an unfortunate childhood”. The Board wrote that it had reviewed “attempts by the hospital social worker to facilitate support for [the appellant] from local native services that had been to no avail since [the appellant] had declined involvement in this regard”; and later that “[the appellant] was primarily raised by his mother, who is not Indigenous, and had very little contact with his father.”

[20] The Board’s reasons do not engage with enough detail on this point to discern what relevance the appellant’s indigeneity, family history (including residential schools), and the appellant’s difficult upbringing, had for the Board. Further, while it is not clear why the Board thought it noteworthy that the appellant’s mother is not Indigenous and that he has had little contact with his father, if it was to attenuate the need to consider Gladue principles, the Board would have fell into error: see R. v. Kehoe, 2023 BCCA 2, at paras. 52-57. Gladue principles seek to address precisely the kind of disconnection and related lack of positive social structures found in this case.

[21] As in sentencing, taking into consideration Gladue principles does not mandate a different result or favoured treatment for Indigenous people. What is required is a “different method of analysis”, which guards against the discrimination that “as experience demonstrates, will occur where decision-makers fail to advert to the specific and particular problems faced by [Indigenous] Canadians in our system of justice”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59; United States of America v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496, at para. 63; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at paras. 58-59.

[22] In the context of the Board’s process, this different method of analysis requires adjudicators to pay particular attention to the unique circumstances of Indigenous people detained in psychiatric facilities, and how those circumstances affect the four statutory criteria to be considered by the Board under the Criminal Code, R.S.C., 1985, c. C-46.

[23] Pursuant to s. 672.54 the Board is to consider the following four criteria when making a disposition: i) the need to protect the public from dangerous persons, ii) the mental condition of the accused, iii) the reintegration of the accused into society, and iv) the other needs of the accused. In Sim (Re) (2005), 2005 CanLII 37586 (ON CA), 78 O.R. (3d) 183, at para. 16, this court confirmed that Gladue principles apply to proceedings before the ORB, though the court raised some question with respect to the application of Gladue principles to the first and second criteria (i.e., public protection and mental condition of accused). In Faichney (Re), 2022 ONCA 300, at para. 24, Paciocco J.A. clarified that Sim, when read in context, did not suggest that Gladue principles are irrelevant to the first and second statutory criteria. Rather, while Gladue principles may “more commonly inform statutory factors three and four” (reintegration into society and other needs of the accused), they may be relevant to all four factors and the Board should rely on as full a record as possible.

[24] All of that said, this court’s task is to consider whether the Board’s disposition was reasonable. While improper or inadequate consideration of Gladue may result in an unreasonable decision, we are satisfied that the Board’s disposition here remained reasonable.


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