Gladue factors must be before the Court before incarceration? Likely yes

R. v. Mainville, 2011 ONCA 383 is a useful decision (released today) emphasising the need for Gladue factors to be put before the Court. The case may be read as requiring Gladue information at all times prior to a term of incarceration. It may be that, where a joint submission as to sentence includes jail, the factors are not required. That said, the better approach is to ensure Gladue is properly put to the Court whenever there is a sentencing relating to a First Nations accused:

[1]              In our view, this appeal must be allowed. The trial judge made errors in principle which requires this court's intervention. Most importantly, although the appellant is aboriginal there was virtually no information that addressed the Gladue factors. Particularly if the trial judge intended not to accede to the position of the parties that there be a non-custodial sentence, he should have obtained the information that would be in a Gladue report. The material before us shows that the appellant's aboriginal background and the impact of residential schools on her father, her and her community have been significant. As well, the fresh evidence shows that the use of oxycontin, which was the cause of the offence in this case, is pervasive in the community and has devastated that community.