OCA Overturns Misplaced Gladue “Overemphasis”

Image: T. Voekler

Image: T. Voekler

In a decision that re-examines the application of Gladue principles, the Ontario Court of Appeal set aside a lower court’s sentence in a sexual interference case.

Finding that the trial judge “overemphasized” Gladue principles in sentencing an aboriginal man who had a sexual relationship with a friend of his daughter, the court suggested three years would be an appropriate sentence.

The trial judge had sentenced Dennis Bauer to eight months — a sentence the crown on appeal called “manifestly unfit.” The appeal justices agreed, finding the initial sentence an “unjustifiable departure” from the usual range in such a case.

Gladue rights apply to aboriginal defendants, under section 718.2 (e) of the Criminal Code. In sentencing, Gladue principles mean that courts must take into consideration an offender’s native background. Gladue Reports assist the court in applying the principles.

The Crown had appealed Dennis Bauer’s sentence, arguing that the Gladue principles were applied more extensively than necessary. The appeals court agreed, Nov. 14.

Factors Must Connect to Offender and Offence

The court found that “While the sentencing judge did correctly state the Gladue principles, he failed to ‘tie them in some way’ to the offender and the offence and in so doing, underemphasized the respondent’s moral culpability for this offence.” According to Legal Feeds, the appeal court found that there must be a nexus between Gladue factors and the offence.

In Bauer’s case, no evidence showed that his background diminished his moral culpability, the appeal court ruled. Bauer had little participation in his aboriginal culture and grew up off-reserve, never attended a residential school and did not endure any sexual abuse, discrimination, or forced displacement.

In Alberta, the appeal court made a similar ruling in June. The court increased the sentence for an offender, finding that his trial judge had applied “unspecified credit” to the respondent’s maternal aboriginal heritage, despite the accused’s “middle-class” upbringing.

Related Information

Gladue Plays Role in Conduct Hearings – SCOPE article on LSUC hearing decision.

Gladue Primer, from Legal Services Society, B.C., 2011.

R. v. Gladue, [1999] 1 S.C.R. 688.

National Magazine article, “Fifteen years after Gladue, what progress?” – C.C. Barnett and B. William Sundhu.

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