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Difference between revisions of "Resolving Criminal Matters Prior to Trial (1:VI)"
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Resolving Criminal Matters Prior to Trial (1:VI) (view source)
Revision as of 13:17, 25 August 2022
, 13:17, 25 August 2022→E. Sentencing hearing
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The judge also must consider any pretrial time spent in custody as a result of the charges and will usually credit such time towards the proper sentence at a ratio of 1.5 days credited for every 1 day spent in pretrial custody. | The judge also must consider any pretrial time spent in custody as a result of the charges and will usually credit such time towards the proper sentence at a ratio of 1.5 days credited for every 1 day spent in pretrial custody. | ||
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! style="font-style: italic;text-align: left;" | Gladue Reports | |||
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| For cases where the offender is Indigenous, reference must be made to section 718(e) of the Criminal Code and the principles laid out in '''[https://www.canlii.org/en/ca/scc/doc/1999/1999canlii679/1999canlii679.html?searchUrlHash=AAAAAQAKciB2IGdsYWR1ZQAAAAAB&resultIndex=1 R v Gladue]''', [1999] 1 SCR 688. Section 718(e) of the '''[https://laws-lois.justice.gc.ca/eng/acts/c-46/ Criminal Code]''', which states that judges must pay attention to the circumstances of Aboriginal offenders, was implemented in 1996 in an attempt to address the over representation of Indigenous Peoples within Canadian prisons. R v Gladue followed shortly after, in 1999, and established that when making decisions in cases with Indigenous offenders a judge must consider Gladue principles. This means that a judge must consider the personal and unique circumstances of the accused as well as the particular hardships they have faced, resilience they have shown and ways to support them that would address their challenges. The judge should consider their life experience and what has happened to them, their friends, family and community. The Supreme Court in R v Gladue outlined specifically that sentencing judges must pay attention to: | |||
1. The unique systemic or background factors which may have played a part in bringing the particular Indigenous person before the courts; and | |||
2. The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the person because of his or her particular Indigenous heritage or connection. | |||
The Crown Counsel, defence counsel and the Indigenous individual must give the judge the information they need to make an assessment based on Gladue principles. This can be done through a Gladue report, which is a report that lays out a holistic profile of an Indigenous individual and how they have come to be before the court. These reports are based on interviews with the individual, friends, family and community members as well as information about their family background and the effect of colonization. A Gladue report is different than a Pre-Sentencing Report and should be prepared by someone with experience preparing these reports and insight into Indigenous communities. The BC First Nations Justice Council, who have provincial responsibility for Gladue services, offers the opportunity to request a Gladue report from a rooster of experienced Gladue report writers: https://bcfnjc.com/information-for-the-public/. | |||
It is important to note that, even if there is no Gladue report present, lawyers still have an obligation to bring information relevant to Gladue principles before the court in every case and judges have an obligation, not just to reference those principles, but provide an explanation of how they applied them when it comes to sentencing. Gladue principles apply to all offenses under the Criminal Code. | |||
For further information on Gladue principles and reports see the Gladue Report Guide published by the Legal Services Society in collaboration with the BC First Nations Justice Council: https://pubsdb.lss.bc.ca/pdfs/pubs/Gladue-Report-Guide-eng.pdf. | |||
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== F. Types of sentences == | == F. Types of sentences == | ||
