Gladue Practices in the Provinces and Territories

1. Executive Summary

This study is intended to provide a status report on policies and practices in the provinces and territories that reflect the principles set out in the Supreme Court decision in R. v. Gladue regarding:

  1. specialized courts for Aboriginal accused;
  2. training and awareness activities for judges, probation officers, courtworkers and duty counsel;
  3. procedures for sentencing, bail and parole hearings when a case involves an Aboriginal offender; and
  4. community justice programs and resources for Aboriginal offenders. A questionnaire was sent to key informants who had been identified in 11 jurisdictions and the Parole Board of Canada. In total, 16 questionnaires were collected. The responses were compiled and analyzed so as to highlight the participants’ opinions on the key challenges, issues and successes that various sectors of the criminal justice system have experienced in dealing with Aboriginal accused/offenders.

It is important to point out that this research is based on the perceptions of the participants and that the results of this research are not to be construed as the official position of the federal, provincial or territorial governments on the issues raised.  

Overall, initiatives and programs that comply with the Gladue decision were identified in all the jurisdictions that took part in the study. Specialized courts for Aboriginal persons seem to be one of the most exemplary initiatives in terms of applying the Gladue decision. In total, 19 specialized courts (whether or not they deal exclusively with cases involving Aboriginal persons) were listed in eight jurisdictions. Gladue training and awareness activities for justice system officials, including judges, are provided in roughly half of the participating jurisdictions. However, one of the participants questioned the quality of the training. Most jurisdictions stated that bail and parole decision‑making processes involving Aboriginal persons are informed by Gladue type information. Community justice programs appear to exist in the majority of jurisdictions. However, one of the participants observed that inadequate information sharing, coordination, integration and communication between the various stakeholders in the justice system and the persons in charge of community justice and health programs (e.g. substance abuse and mental health treatments) may prove to be a significant obstacle to the effectiveness of these programs. Another participant pointed that the need for more effective information sharing must also be balanced with privacy and confidentiality considerations. In addition, establishing partnerships between non‑governmental organizations (NGOs) and the justice system seems to be an approach that a number of jurisdictions have adopted to jointly identify solutions to the situation experienced by Aboriginal persons in the justice system. Last, legal aid programs may also play an important role in applying Gladue principles as shown by certain exemplary practices established by Legal Aid Ontario.

It may be noteworthy to mention that while the research did not include caselaw review of the various interpretations of Gladue by the provincial and territorial judiciaries, the approach taken in different provinces and territories with respect to the implementation of Gladue like policies and practices has likely been influenced by the way each provincial and territorial appellate court has interpreted Gladue.

2. Introduction

During 2010, the Research and Statistics Division (RSD) of the Department of Justice Canada prepared a literature review whose objectives were to define the key challenges raised in the literature regarding the application of section 718.2(e) of the Criminal Code and the Gladue decision, and to identify the legal initiatives and the programs consistent with that decision that have been implemented in various Canadian provinces and territories.Footnote 1

The review found that there was no documentation providing a status report on the initiatives that reflect the principles in the Gladue decision and that are currently in place in the provinces and territories.

In light of that finding, this exploratory study aims to determine to what extent the various sectors of the justice system in the provinces and territories have implemented policies and initiatives consistent with Gladue.

3. Objective

The objective of this study is to prepare a status report on provincial and territorial policies and practices that reflect the principles set out in Gladue regarding the following:

  • specialized courts for Aboriginal accused;
  • training and awareness initiatives for judges with respect to Gladue and Aboriginal people in Canada, and for probation officers, courtworkers and duty counsel on the preparation of sentencing reports;
  • procedures for sentencing, bail and parole hearings when a case involves an Aboriginal offender;
  • community justice programs and resources for Aboriginal offenders.

4. Methodology

With a view to identify possible research participants, the RSD asked Aboriginal Law and Strategic Policy and the Aboriginal Courtwork Program to draw up a list of key informants working in the area of Aboriginal justice policies and representing each of the provinces and territories. A key informant from the Parole Board of Canada was also identified and contacted. The key informants had to be able to provide information on the policies and practices in place in various sectors of the justice system that comply with Gladue principles. The researchers contacted these individuals by e‑mail and invited them to participate in the study by completing the questionnaire either electronically or by telephone.

The questionnaire (see appendices) contained multiple choice and open-ended questions and was divided into four sections:

  1. the existence of specialized courts for Aboriginal accused/offenders;
  2. sentencing procedures when a case involves an Aboriginal offender;
  3. bail and parole hearings; and
  4. other programs designed to assist Aboriginal persons throughout the justice process.

The responses were compiled and analyzed so as to highlight the participants’ opinions on the key challenges, issues and successes that various sectors of the criminal justice system have experienced in dealing with Aboriginal accused/offenders.

In conjunction with this research, we conducted a brief survey with the key informants on how legal aid programs apply the Gladue provisions. Unfortunately, the participation rate for the legal aid survey was low, and we are unable to draw any conclusions on the issues addressed in the survey. Nevertheless, section 5.5.3 of the report presents some exemplary practices of Legal Aid Ontario (LAO) at the time of this brief survey.

4.1 Participants

This research relied on the participation of representatives from 11 jurisdictions.Footnote 2 In some jurisdictions, two or more professionals participated, which enabled us to collect a total of 16 questionnaires. The respondents worked in areas involving Aboriginal justice policies and in one of the following sectors:

  • justice and criminal prosecutions;
  • public safety;
  • legal services;
  • correctional services;
  • court support services;
  • community‑based programs and policies.

In addition, a representative from the National Parole Board of Canada responded to the questionnaire only with respect to the questions that deal with paroling Aboriginal offenders.

5. Limitations of the study

The study is limited in particular because key informants did not necessarily have full knowledge in all areas where Gladue has implications. For example, on a number of occasions, some participants stated that they were not familiar with the subject covered in certain questions.

Moreover, the criteria used in the definition of “specialized court for Aboriginal accused/offenders” in this research were developed as a result of the literature review on the application of the Gladue decision. Since it is quite recent, this definition had not yet been validated when the interviews were conducted. Thus, the list of specialized courts provided (see section 6.1) remains a preliminary list of courts that, according to the participants, could be considered “specialized courts for Aboriginal accused/offenders”. The list should not be used for statistical purposes, and we recognize that it may either over- or underestimate the number of these courts. However, we believe it is useful in the process of developing criteria to define what is meant by “specialized courts for Aboriginal accused/offenders” although further consultations with the jurisdictions will be required to refine the definitional criteria for this type of court.

The study is based on the perceptions of the participants and is not the official position of the federal, provincial or territorial governments on the issues raised. Most of the results are based on one response per jurisdiction, so it is possible that there is some missing information about how the principles of Gladue are being applied in each jurisdiction.

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