The Application of Gladue to Bail: Problems, Challenges, and Potential

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.