What is Gladue?
In 1999, an Aboriginal woman named Jamie Gladue had her landmark case heard by the Supreme Court of Canada. As a result of this, the court said that there are far too many Aboriginal people being sent to jail. The court also recognized that Aboriginal people face systemic racism in Canada and in particular within the criminal justice system.
From this decision, S. 718.2(e) of the Criminal Code provided that when judges are considering detaining an Aboriginal person at the Bail, Sentencing or Appeal stages, he or she must follow the legal principles laid out under the application of the Gladue analysis and must consider all appropriate options other than jail. Subsequent case-law has further extended the application of Gladue to both parole eligibility, and Dangerous/Long-term Offender Hearings.
If you self-identify as an Aboriginal person; meaning status/non-status; First Nations; Métis or Inuit, regardless of your age and life/social or economic circumstances, you have the legal right to exercise your Gladue rights prior to any determination of your case. These rights can only be waived by you and must be accounted for by the police, lawyers and the Judge. Your lawyer should do everything to ensure your rights are respected and an expert's Gladue Report provided to the Court on your behalf.
Kulus Consulting is a specialized company offering Court-recognized expert Gladue Reports. While we have extensive experience in dealing with individuals charged with a wide range of criminal offences, we offer specialized expertise in dealing with clients charged with crimes of violence, sexual assault and homicide.
As an Aboriginal Professional Service, Kulus Consulting and Development endeavours to provide a wide range of available services suited to the unique needs of the client. Private Counsel and prospective clients are invited to contact us to discuss rates and flexible payment options. In addition, as an accredited service provider for the BC Legal Services Society, Kulus welcomes Legal Aid referrals.
Gladue Reports and Why You Require an Expert to Represent Your Interests
In R. v. Labrador (http://aboriginallegal.ca/docs/Labrador.pdf) the Judge had both a Gladue and PSR. In 2004, Mr. Justice Sheppard noted the differences (in content and intent of the these documents) and preferred the Gladue report to the PSR as being more reflective of the principles espoused in S. 718.2(e). As such, he sentenced according to the Gladue rather than the PSR's recommendations.
This is also the case in R. v. Kakekagamic ((45), (46), and (55)) (http://www.ontariocourts.on.ca/decisions/2006/august/C43843.htm) which clarified the judicial requirements required for a Gladue analysis.
Most recently in the Ontario Court of Appeal: R v. Nahmabin (http://www.ontariocourts.on.ca/decisions/2010/november/2010ONCA0737.pdf) held that the trial judge erred in not looking into the accused’s aboriginal background in circumstances where the defence counsel did not request a Gladue Report.
While S. 721 of the Criminal Code certainly directs Probation Officers to provide PSR’s to the Court, this is separate and apart from the intent, structure, professional expertise and training required to complete a Gladue Report. They remain two distinctly separate documents and were never intended to be in a consolidated report for purposes of Judicial Interim Release (Bail) or Pre-Sentence.
Within a PSR, Corrections Branch/Probation provides a section labelled "Sentencing considerations for Aboriginal Offenders” ~ THIS IS NOT A GLADUE REPORT ~ despite what Corrections or the Court may have commonly come to understand or utilize. A Gladue Report is an Expert’s Report provided on your behalf to the Court by your lawyer for purposes of Bail, Sentencing or Appeal.
R v Bodaly (2010 BCCA 9) clearly noted the deficiencies of Corrections’ reports in not fully addressing the required elements of a proper Gladue analysis.
R. v. Linklater (http://aboriginallegal.ca/docs/Linklater.pdf) reiterated this point clearly and further pointed for the need for Aboriginal resources, with the result at sentencing being that the subject was ordered supervised by the Aboriginal community rather than Corrections staff.
Corrections Branch reliance upon criminogenic risk-based assessments have been found to be questionable in their validity in relation to Aboriginal people (T. Rugge) and equally incompatible with the interests and values of restorative justice contained in Gladue…one is about the actuarial risk assessment and targeting of an individual’s risk to reoffend, the other about a comprehensive and holistic understanding of the individual and their role in a restorative healing plan…two totally different conceptual logic models.