Indigenous Bar Association Calls for Recognition of Gladue Sentencing Provisions

by ahnationtalk on November 19, 20151729 Views



At a recent bail hearing heard in Ottawa, Ontario, Christopher Jacko, from Wikwemikong First Nation asked the court to take judicial notice of the Gladue sentencing principals in considering what sentence to impose. Justice of the Peace Louisette Girault provided the following response:

“Quite frankly, the Gladue thing, I am well aware of, you know, Aboriginal and, you know, some people do have for sure a harder life but in your particular case you are not the only one with that… at the end of the day you have got to look at yourself in the mirror and you have got to say, “What is it that I can do to change this?

The Justice of the Peace’s response is disturbing in that it runs afoul of a statutory duty, imposed by s. 718.2(e) of the Criminal Code and the Supreme Court of Canada (SCC) in R. v. Gladue, [1999] 1 S.C.R. 688, to consider the unique circumstances of Aboriginal offenders when considering sentencing provisions. Gladue requires Courts to consider the very issues Mr. Jacko raised before JP Girault “in a manner that emphasizes the goal of restorative justice.” JP Girault’s comments obstruct the mandated goals of restorative justice which are integral to the rule of law in this field. Gladue was reaffirmed over a decade later by the Supreme Court of Canada again in the joint release of the Ladue and Ipeelee decisions.

“Justice Girault’s comments call into question the Supreme Court’s instructions to address factors such as poverty and residential school abuse when considering Indigenous peoples and represents a continuing failure to address the historical circumstances of Indigenous peoples on the part of Canada’s justice system,” says Koren Lightning-Earle, President of the Indigenous Bar Association.

This flawed reasoning, by a provincially appointed Justice of the Peace, calls the integrity of the courts into question. Justice Girault’s views stand in stark opposition to the recent recommendations from the Truth and Reconciliation Commission Summary Report, which calls for, “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country. In order for that to happen, there has to be awareness of the past, acknowledgement of the harm that has been inflicted, atonement for the causes, and action to change behaviour.”

Recently an Alberta Federal Court Judge Camp was put under review by the Canadian Judicial Council for comments he made about a sexual assault during a trial. He is undergoing sensitivity training and while under review will avoid cases involving sexual assault. Similar conditions should be placed on Justice Girault, until effective intercultural training is taken she should not preside over any more cases involving Indigenous peoples.

In the spirit of advancing reconciliation and upholding the Criminal Code, the directions of the Supreme Court of Canada and the Truth and Reconciliation’s Calls to Action, the Indigenous Bar Association calls upon the Courts to fully appreciate and implement the sentencing provisions as set out in the Gladue principle and ensure these principles are considered in every case involving an Aboriginal offender. We call upon the Province of Ontario to provide effective intercultural training for all judges and justices of the peace. The Indigenous Bar Association would be pleased to assist Ontario with implementing effective intercultural training.

FOR MORE INFORMATION: contact Koren Lightning-Earle, President of the Indigenous Bar Association at: or at 780.721.2345 or Scott Robertson at or 705-325-0520. Visit our website at


Send To Friend Email Print Story

Comments are closed.

NationTalk Partners & Sponsors Learn More