Saturday, February 23, 2013

Gladue Factors beyond sentencing

The Gladue factors may have other effects, even though they are only directly applied to sentencing in the Criminal Code.  SinceGladue sets out principles intended to address the "crisis on the Canadian criminal justice system" that the horrendous over-incarceration of Aboriginals represents: (Gladue, supra, par. 64), some have suggested that a court should consider such principles in other situations that have the capacity to improve this situation.

The Ontario Court of Appeal has held that Gladue principles apply in other situations where the court is engaged with the issue of an Aboriginal's freedom, including a review hearing for an offenderfound not criminally responsible by reason of mental disability under s.672.54 of the Criminal CodeR. v. Sim, (October 20, 2005) C43385; 78 O.R. (3d) 183.

In British Columbia, the Gladue analysis has been applied to situations where the court is setting the period of parole ineligibility that accompanies some sentences given that this may affect the amount of time an Aboriginal spends in prison: R. v. Pelletier, (2004) B.C.C.A. 264.  It has been argued that these principles should apply to regular parole eligibility hearings as well. 

Some British Columbia courts have also held that Gladue principles should be considered in bail hearings.  The rationale for this has been that it is a logical and necessary extension of Gladue, especially in situations where the time spent in remand while awaiting trial may exceed whatever prison term is eventually given under a Gladue analysis and so pre-empt any possibilty of a restorative remedy.  R. v. R.R.B., (2004) B.C.P.C. 0566 held, without deciding, that Gladue principles should apply in such situations for youth offenders.  Also see: R. v. Wesley, Vancouver Registry, File No. 138695-2-DC for a Provincial Court decision that holds Gladue should apply to all bail hearings regardless of age.

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