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<p><span>Research in clinical law, critical legal studies, and therapeutic jurisprudence has spotlighted serious challenges that clients face whe
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In a new push for ‘lawfare’, pro-Israel groups are weaponizing the courts to silence criticism of Israel
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In a new push for ‘lawfare’, pro-Israel groups are weaponizing the courts to silence criticism of Israel
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A co-founder of Idle No More was put on trial for ‘trespassing’ on her family’s ancestral lands. Canada has much to learn about institutionalizing respectful relationships with Indigenous peoples.
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The crisis of a failing system of judicial interim release disproportionately disadvantages Aboriginal accused persons. Rather than ameliorating this crisis, the principles articulated in R v Gladue and re-affirmed in R v Ipeelee are being interpreted at the bail phase in a manner that exacerbates the problem. A review of Gladue bail jurisprudence reveals the ways in which Aboriginal people in Canada are improperly being sentenced via bail proceedings. The courts have failed to identify the relevant legal principles that should animate bail. Instead, judicial interim release is being utilized as a diagnostic tool and Aboriginal people are inappropriately being subjected to “treatment” via the over-use of sureties and conditions of release. The relevant systemic factors are not properly considered and should play a far greater role in the assessment of risk and the interpretation of Gladue. The paper concludes with a proposal for how Gladue can more appropriately be interpreted and applied in the context of judicial interim release, including an alternate understanding of what systemic factors should animate Gladue bail proceedings.
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This paper argues that the principles articulated by the Supreme Court of Canada in R. v. Gladue and re-iterated in R. v. Ipeelee are being interpreted and implemented at the bail phase in a manner that exacerbates, rather than ameliorates the systemic failures of the criminal justice system in its dealings with Aboriginal people. Aboriginal people are grossly over-represented in Canadian prisons including those being detained in remand custody. It is now settled that the principles expressed in Gladue are applicable outside of the context of sentencing and in many jurisdictions have been found to be applicable to judicial interim release proceedings. Reviewing the existing bail jurisprudence involving Aboriginal accused persons, I uncover the ways that Gladue is being applied and misapplied. I also consider how the current crisis in the bail system in Canada disproportionately impacts Aboriginal people and how judicial consideration of Gladue and bail has not alleviated this crisis. The paper concludes with a proposal for a more robust framework for the interpretation of Gladue in judicial interim release proceedings.
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Author / Editor
- Jillian Rogin
- Gemma Smyth (4)
- Joshua Sealy-Harrington (2)
- Reem Bahdi (1)
- Sylvia Mcadam (1)
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