Gladue Prinicples (Application to Quasi-Criminal)

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Date Retrieved:	2025-08-20
CLNP Page ID:	2524
Page Categories:	Legal Principles, Provincial Offences
Citation:	Gladue Prinicples (Application to Quasi-Criminal), CLNP 2524, <https://rvt.link/g8>, retrieved on 2025-08-20
Editor:	MKent
Last Updated:	2025/08/19

Provincial Offences Act, R.S.O. 1990, c. P.33

Submissions as to sentence

57 (1) Where a defendant who appears is convicted of an offence, the court shall give the prosecutor and the defendant’s representative an opportunity to make submissions as to sentence and, where the defendant has no representative, the court shall ask the defendant if he or she has anything to say before sentence is passed. 2006, c. 21, Sched. C, s. 131 (12).

Omission to comply

(2) The omission to comply with subsection (1) does not affect the validity of the proceeding. R.S.O. 1990, c. P.33, s. 57 (2).

Inquiries by court

(3) Where a defendant is convicted of an offence, the court may make such inquiries, on oath or otherwise, of and concerning the defendant as it considers desirable, including the defendant’s economic circumstances, but the defendant shall not be compelled to answer.

R. v. Karau, 2014 ONCJ 207 (CanLII)

[1] Mr. Karau is Aboriginal and a member of the Lac Des Milles Lac First Nation. He was found guilty of driving while suspended contrary to s.53 (1) of the Highway Traffic Act. The Crown is seeking a sentence of 30 to 60 days in custody, while the defence argues on the basis of Gladue, that there should not be incarceration. The record of the Defendant as filed shows 20 prior convictions for the same offence, making incarceration a possible disposition. The application of Gladue principles is appropriate in these circumstances.

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[3] The duty of a sentencing justice is to ensure that the information available for consideration by the court is sufficient to comply with the principles set out in Gladue. This duty exists when incarceration is to be considered for an Aboriginal person.

R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688

93 Let us see if a general summary can be made of what has been discussed in these reasons.

1. Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence.

2. Section 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.

3. Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision’s remedial purpose real force.

4. Section 718.2(e) must be read and considered in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. All principles and factors set out in Part XXIII must be taken into consideration in determining the fit sentence. Attention should be paid to the fact that Part XXIII, through ss. 718, 718.2(e), and 742.1, among other provisions, has placed a new emphasis upon decreasing the use of incarceration.

5. Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. However, the effect of s. 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.

6. Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider:

(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

(B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

7. In order to undertake these considerations the trial judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. In the usual course of events, additional case‑specific information will come from counsel and from a pre‑sentence report which takes into account the factors set out in #6, which in turn may come from representations of the relevant aboriginal community which will usually be that of the offender. The offender may waive the gathering of that information.

8. If there is no alternative to incarceration the length of the term must be carefully considered.

9. Section 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed.

10. The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved.

11. Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term “community” must be defined broadly so as to include any network of support and interaction that might be available, including in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.

12. Based on the foregoing, the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non‑aboriginal offender for the same offence.

13. It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non‑aboriginal.

R. v. Henry, 2016 ONCJ 146 (CanLII)

16. Although it was not put in issue, I am satisfied that the principles in R. v. Gladue apply to matters such as these pursuant to the Provincial Offences Act. That said, the over-riding focus of the Gladue principles focusses on the over-incarceration of aboriginal offenders. This case does not involve a request for custody and as such, the primary focus of the Gladue principles is not triggered. Notwithstanding, Ms. Dover argues that I must consider the context and circumstances that bring this offender to Court.

17. In that regard, I am aware that the “drive suspended” conviction does allow for both monetary and custodial dispositions and as such, at least the possibility of custody is open for the Court to consider, the position of the Crown notwithstanding. However, I agree that custody is not appropriate or required in this case, regardless the status of the offender as a member of the First Nations community.

Gibbon v. Justice of the Peace Review Council, 2023 ONSC 5797 (CanLII)

[1] By unanimous decision, a panel of the respondent Review Council found that the Applicant failed to meet the standards expected of her as a justice of the peace (the “Merits Decision”).[1] Subsequently, the panel held a hearing into the appropriate disposition for this misconduct. The respondent sought a recommendation that the Applicant be removed from office. The Applicant argued that a less severe disposition is available and warranted when her misconduct is seen through the lens of the factors set out in the Supreme Court of Canada’s decision in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688 and subsequent jurisprudence applying Gladue. Both the majority and the minority accepted that Gladue principles should be applied, but they reached different conclusions after applying Gladue principles to the circumstances of this case.

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[3] The Applicant is indigenous. The central issue in this application is whether the Applicant’s indigeneity was taken into account reasonably in the majority Disposition Decision.

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[47] Issues of racism and the continuing impact of Canada’s colonial history on indigenous communities will not vanish overnight by appointing a few indigenous jurists. The commitment to reconciliation must be much deeper to effect real change. But taking positive and decisive steps to shape a judiciary that reflects the communities it serves is much more than a symbolic gesture. Justice Bertha Wilson, in her watershed article more than thirty years ago, wrote as follows:

If women lawyers and women judges through their differing perspectives on life can bring a new humanity to bear on the decision-making process, perhaps they will make a difference. Perhaps they will succeed in infusing the law with an understanding of what it means to be fully human. (Justice Bertha Wilson, “Will Woman Judges Really Make A Difference?” Osgoode Hall Law Journal 28.3 (1990): 507-522, at 522)

The same may be said for indigenous jurists in a contemporary context where the established need for real reconciliation is rightly a national priority. I would not hesitate to conclude that appointing and retaining indigenous jurists should be taken into account as part of a Gladue analysis when considering disposition in judicial misconduct proceedings.

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[51] The majority wrestled with the principles in Gladue and concluded that a recommendation to remove the Applicant was required to maintain public confidence in the administration of justice. On the basis of the majority’s findings – which were available to them on the record – this conclusion was manifestly reasonable.