En 2022, les droits et revendications autochtones se retrouvent parfois à la une. Par contre, peu d’individus connaissent les droits qu’un individu autochtone a dans le système de justice canadien. Suite à l’article 718.2 (e) mis en place dans le but de diminuer le haut taux d’incarcération de ces peuples, les rapports Gladue ont été élaborés spécifiquement pour les individus autochtones. Ces rapports sont présentés au juge lors de la détermination de la peine. À l’aide d’une analyse inspirée de la théorisation ancrée, cette thèse avance plusieurs pistes de réponse à la question suivante: Comment les rapports Gladue permettent-ils d’aborder les conséquences du Settler Colonialism? De ce fait, le Settler Colonialism permet de réaliser que les conséquences de la colonisation sont encore présentes dans plusieurs sphères de la société, incluant le système de justice. Les analyses des entretiens nous ont permis de constater que les rapports Gladue semblent avoir des impacts lors de la détermination de la peine, mais permettent aussi à l’individu autochtone de faire une réflexion de soi, lors du processus de rédaction du rapport. Par contre, l’analyse des données nous a aussi permis de réaliser plusieurs problématiques, telles que le manque de ressources pour les individus autochtones et le manque d’accessibilité de ces rapports. Ainsi, le taux élevé des individus autochtones incarcérés ne peut se voir diminuer, s’il n’y a pas d’autres investissements pour appuyer ces rapports. En d’autres termes, d’autres outils, autant au niveau de la prévention que dans le système de justice, doivent être disponibles pour les contrevenants autochtones.

This thesis argues that the honour of the Crown and the reconciliation agenda are engaged in the sentencing of Aboriginal offenders, given grossly disproportionate Aboriginal incarceration rates and their underlying causes, including socio-economic problems, community breakdown and cultural dislocation that arise at least partly from the history of Crown-Aboriginal interaction. Such an interpretation facilitates a new relationship between the Crown and Aboriginal peoples and will contribute to the rehabilitation of the rule of law. I address not only the underlying legal questions pertaining to the engagement of the honour of the Crown and the reconciliation agenda in sentencing Aboriginal offenders, but also interrogatories relating to the role of morality in the law and the rule of law for Aboriginal peoples in the sentencing context. Fundamentally, the honour of the Crown and reconciliation principles are interpreted and applied such that the sentencing of Aboriginal offenders can accommodate and attempt to ameliorate colonialist history. This distinctive history produces a legal requirement of reconciliation and honour-based governance if the rule of law is to be a reality for Aboriginal peoples in Canada. Section 718.2(e) of the Criminal Code and Gladue analysis provide a vehicle for the courts to inject the honour of the Crown into the sentencing of Aboriginal offenders, albeit at one remove. However, the honour of the Crown requires a vigorous Gladue type analysis by judges sentencing Aboriginal offenders regardless of the existence of section 718.2(e). Canada must be prepared to accept responsibility and directly address some of the fallout in the criminal justice system from the history of Crown / Aboriginal relations. The honour of the Crown requires a different sentencing approach for Aboriginal offenders independent of section 718.2(e) and reconciliation is an interpretive normative principle underlying the sentencing of Aboriginal offenders, shaping the honour of the Crown and infusing the rule of law for Aboriginal peoples. Aboriginal offender rehabilitation needs to go hand in hand with the rehabiltation of the rule of law for Aboriginal peoples as a pivotal component of reconciliation. / Thesis (Master, Law) -- Queen's University, 2012-04-23 18:41:36.57

ABSTRACT This thesis explores the R. v. Gladue (1999) decision and whether it is applicable to federal corrections and parole release. I outline a Cree relational approach—wahkotowin—that can be employed as a Gladue method of analysis to help us understand Cree history through a kinship relational lens. In Chapter 1, I share an overview of the teachings of wahkotowin, as taught by knowledge keeper and respected author Maria Campbell. With the help of her circle teachings diagrams, I outline our relationships and obligations to one another. I also outline the shattering of wahkotowin through imposed colonial and present-day policies, programs, and legislation, and the resulting inherited intergenerational trauma. Chapter 2 locates my personal story, exploring family and community history, and its connection with First Nations and Métis history on the prairies. Chapter 3 reviews the Supreme Court of Canada’s R. v. Gladue and R. v. Ipeelee (2012) decisions, the duty to properly consider the unique social history of Aboriginal peoples, and the applicability of Gladue to section 84 of the Corrections and Conditional Release Act. Chapter 4 outlines the qualitative data, including interviews with legal experts working with Aboriginal Legal Services of Toronto and the Gladue Court. The data explore best practices of interviewing, researching, and report writing necessary for obtaining Gladue evidence. In Chapter 5, I propose a Gladue-through-wahkotowin approach that explores how Gladue’s duty to consider social history evidence can be expanded to all phases of the criminal justice system, from sentencing to parole release, and can include a Cree relationship-based way of interviewing an offender, carrying out in-depth family and community interviews, attaining oral and documentary historical research, and applying a broad Indigenous approach to interviewing and the writing of Gladue Reports.

This dissertation explores the promise of bail-oriented interventions vis-à-vis the overrepresentation of Indigenous peoples in Canadian prisons. While this research project argues that the bail system's underlying risk logic is inherently discriminatory against Indigenous peoples, it is proposed that specialized courts for Indigenous peoples - Gladue Courts - may be well-positioned to overcome systemic barriers to Indigenous peoples' release on bail. This research explores the extent to which two Toronto Gladue Courts have been able to produce equitable bail outcomes, as well as potential downstream effects of these outcomes, utilizing two unique and complementary longitudinal datasets from the Ontario Ministry of the Attorney General which span from 2006 to 2017. Analyses examine i) bail case characteristics, ii) bail processing and court processing measures, and iii) final case outcomes and sentences for Indigenous peoples' bail cases which were processed in these Gladue Courts compared to (predominantly non-Indigenous people's) bail cases processed in the conventional bail courts of these same courthouses. Study findings suggest that while these two bail populations shared many similarities, charges against the administration of justice were particularly widespread among Gladue bail cases. While Gladue Courts appeared largely successful in producing substantively equitable bail outcomes, the impact of these courts is limited by Gladue bail cases' disproportionate early guilty pleas and waiving of the right to bail. Despite the apparent successes of Gladue Courts with regards to bail, Indigenous peoples in Gladue bail cases continued to be disproportionately convicted and sentenced to custody compared to their conventional bail counterparts. Study findings are considered within the wider context of settler colonialism and Indigenous peoples' overincarceration and possible targeted solutions to this phenomenon are discussed.

This study explores the differences (and similarities) between sentencing reform and the legal practices of criminal defence lawyers. This research specifically focuses on Section 718.2 (e) of the Criminal Code, which is aimed at reducing the use of imprisonment for Aboriginal offenders and the application of the section in the Supreme Court’s 1999 decision R .v. Gladue. It investigates whether or not the section and/or Gladue has affected the legal practices of criminal defence lawyers and if so, how. The practice of lawyers, in this study, is conceptualized as structured action. The agency of lawyers is thus constrained and enabled by both macro and micro processes. These include traditional legal ideology, managerial/organizational ideology, presuppositions surrounding Aboriginality as well as the broader socio-political context of neo-liberalism and neo-conservativism. How the practices of defence lawyers either reflect or contradict the section and Gladue is examined through the oral narratives of lawyers—obtained through in-depth semi-structured interviews with twelve defence lawyers. The findings of this analysis show that the vast majority of lawyers were not integrating the section or Gladue in their defence strategies. This suggests that efforts to remedy the issue of Aboriginal over-incarceration need to be aware of the complexity of criminal justice processes, the agency of lawyers and the broader social and political context. / October 2008

This study explores the differences (and similarities) between sentencing reform and the legal practices of criminal defence lawyers. This research specifically focuses on Section 718.2 (e) of the Criminal Code, which is aimed at reducing the use of imprisonment for Aboriginal offenders and the application of the section in the Supreme Court’s 1999 decision R .v. Gladue. It investigates whether or not the section and/or Gladue has affected the legal practices of criminal defence lawyers and if so, how. The practice of lawyers, in this study, is conceptualized as structured action. The agency of lawyers is thus constrained and enabled by both macro and micro processes. These include traditional legal ideology, managerial/organizational ideology, presuppositions surrounding Aboriginality as well as the broader socio-political context of neo-liberalism and neo-conservativism. How the practices of defence lawyers either reflect or contradict the section and Gladue is examined through the oral narratives of lawyers—obtained through in-depth semi-structured interviews with twelve defence lawyers. The findings of this analysis show that the vast majority of lawyers were not integrating the section or Gladue in their defence strategies. This suggests that efforts to remedy the issue of Aboriginal over-incarceration need to be aware of the complexity of criminal justice processes, the agency of lawyers and the broader social and political context.

This study explores the differences (and similarities) between sentencing reform and the legal practices of criminal defence lawyers. This research specifically focuses on Section 718.2 (e) of the Criminal Code, which is aimed at reducing the use of imprisonment for Aboriginal offenders and the application of the section in the Supreme Court’s 1999 decision R .v. Gladue. It investigates whether or not the section and/or Gladue has affected the legal practices of criminal defence lawyers and if so, how. The practice of lawyers, in this study, is conceptualized as structured action. The agency of lawyers is thus constrained and enabled by both macro and micro processes. These include traditional legal ideology, managerial/organizational ideology, presuppositions surrounding Aboriginality as well as the broader socio-political context of neo-liberalism and neo-conservativism. How the practices of defence lawyers either reflect or contradict the section and Gladue is examined through the oral narratives of lawyers—obtained through in-depth semi-structured interviews with twelve defence lawyers. The findings of this analysis show that the vast majority of lawyers were not integrating the section or Gladue in their defence strategies. This suggests that efforts to remedy the issue of Aboriginal over-incarceration need to be aware of the complexity of criminal justice processes, the agency of lawyers and the broader social and political context.

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