September 30th 2021 marked the first annual National Truth and Reconciliation Day in Canada. Courts, amongst other businesses and services were closed, to give Canadians time to reflect on our history with Indigenous people. On this day, it is important to reflect on the overrepresentation of Indigenous people in the Canadian Criminal Justice System (CJS).

In the 1990s Canada began recognizing this overrepresentation and making strides to address it. In 1995, s.718.2(e) of the Criminal Code was enacted, reading: (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.”

This section was then considered by the court in R v Gladue in which the Supreme Court of Canada officially recognized the overrepresentation of Indigenous people in the Canadian CJS as well as the role systematic discrimination and marginalization plays in this overrepresentation. Gladue held that in sentencing, “the judge must consider:
The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and
The types of sentencing proceeders and sanctions which may be appropriate int he circumstances for the offender because of his or her particular aboriginal heritage or connection.”

Gladue has also been found to apply at the bail stage and courts must consider the types of release plans, and control procedures that would be appropriate in the circumstances of the accused, giving consideration to their personal aboriginal connections (R v Robinson, 2009 ONCA 205). In 2019, Bill C-75 also brought s.493.2 CC into effect which states that in making a decision in regards to bail a peace officer, justice or judge shall give particular attention to the circumstances of
a) Aboriginal accused; and
b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.

Recent case law has shown strides to continue to address the overrepresentation of Indigenous people in the Canadian CJS. A Corbett application is a defence application where upon success, the court prohibits the use of the accused’s criminal record in cross-examination by the Crown (R v Corbett, [1988] 1 SCR 670.) In R v King, 2019 ONSC 6851, the accused brought a Corbett application to have his criminal record edited and asked the court to consider Gladue type principles and arguing these principles extend beyond sentencing. The accused submitted that, as an Indigenous person, he has experienced discrimination throughout his lifetime and consequently, fears discrimination may impact the jury’s consideration of his full criminal record. The court accepted these arguments, and “reformulated the Corbett test to include, in the appropriate circumstances, disadvantages and systemic discrimination facing an Indigenous person in society as it relates to an analysis of probative value and prejudicial effect. However, there must be more than just the mere status of an Indigenous person as an accused to invoke this additional consideration. In other words, the mere fact that an accused is Indigenous is not enough to trigger the expansion of the Corbett factors.”

The team at DeMelo law encourages you to reflect on Canada and the CJS’s history with Indigenous People this month.