Aboriginal Youth Justice: The Over Incarceration Crisis and the Role of Gladue Principles at Bail

• Main Author: Husein, Safiyah K, Miss
• Format: Text
• Language: unknown
• Published: Scholarship at UWindsor 2017
• Subjects: Canada; First Nations
• Online Access: https://scholar.uwindsor.ca/uwilldiscover/2017/session10/2

There is a crisis in Canada involving our criminal justice system: the over incarceration of Aboriginal people. The situation is even starker when it comes to Aboriginal youth. Parliament and the courts have recognized this issue and taken steps to remedy this phenomenon through legislation and interpretation of relevant provisions. Section 718.2(e) of the Criminal Code was introduced as an amendment to provisions on sentencing, urging judges to consider the unique circumstances of Aboriginal people. R v Gladue, a 1999 case by the Supreme Court of Canada, interpreted section 718.2(e), providing more clarity on how exactly to recognize the history of colonization and displacement that First Nations communities experienced and consider the unique circumstances of Aboriginal people that factor into their interactions with the justice system. These considerations came to be known as Gladue principles. This research involves the application of Gladue principles at the bail stage for Aboriginal youth. While there has been some research conducted around the application of Gladue factors at bail for adults, there is very limited research and conflicting messages by the courts when it comes to Gladue principles for youth bail decisions. This research examined reported youth bail cases involving an Aboriginal accused and documented if and how Gladue principles were applied in each case. The research has shown that cases involving Aboriginal youth have not consistently applied Gladue principles to bail decisions. This is likely, at least in part, because of the Youth Criminal Justice Act (YCJA), which places emphasis on alternatives to imprisonment for youth involved with the justice system. Although presenting alternatives to custody is part of the aims of a Gladue analysis, it is argued in the research that relying on the YCJA alone does not satisfy the factors involved in a Gladue principles application, and therefore, Gladue should be applied consistently to youth bail cases. This paper aims to present justification ...