Gladue factors consistently applied

The Canadian Bar Association is concerned that a recent article (‘Gladue reports need to be done’: lone writer calls for creation of Saskatchewan network, March 5) may create the misimpression that “Gladue factors” are not being consistently applied by Saskatchewan judges, when applicable.

The Parliament of Canada, in Section 718.2 of the Criminal Code, has set out several principles which judges must consider when sentencing an offender. One of these principles states: “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” In its judgment of R. v. Gladue and in subsequent judgments, the Supreme Court of Canada has provided direction on how this legislation should be applied.

Saskatchewan judges are well-informed and appropriately apply criminal sentencing principles, including application of Gladue factors. They are assisted in doing so by receiving submissions from Crown prosecutors and defence lawyers, and at times, by pre-sentence reports which routinely address Gladue factors for Indigenous offenders.

While it is uncommon for such reports to focus solely upon Gladue factors, global pre-sentence reports canvass Gladue factors, in addition to other sentencing principles.

In any individual case where judges are concerned that Gladue factors have not been sufficiently addressed by a pre-sentence report or plea agreement, they can and do ask counsel or the offender to provide further information relevant to those factors.

Saskatchewan’s public should feel confident that sentencing principles, including consideration of Gladue factors, are being consistently and appropriately applied by Saskatchewan judges. Evatt Merchant, president, CBA-Saskatchewan