Gladue Factors and Extent of Impact on the Sentencing of Dangerous Offenders
Updated: Oct 9
Author: Frost Jiwa
Manitoba’s Court of Appeal recently affirmed a trial judge’s sentencing decision involving consideration of Gladue factors in the case of dangerous offenders. In R. v Dumas, the accused was given concurrent indeterminate sentences on two cases of sexual assault.[1] Dumas, an Indigenous man, appealed his sentence and argued that the trial judge erred in applying relevant Gladue factors which would have led the judge to hand down a 20-year determinate sentence and a subsequent 10-year long-term supervision order.[2] The Court of Appeal dismissed the appeal and found that the trial judge had adequately balanced relevant Gladue factors with the situation.[3]
In relation to sentencing, section 718(2)(e) of Canada’s Criminal Code[4] states:“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.”[5]
R. v Gladue[6] further clarifies this provision and identifies Gladue factors which judges should consider when sentencing an individual of Indigenous descent. Looking at the trial judge’s decision, we see multiple Gladue factors involved in Dumas’ case. Among other details, Dumas grew up in an abusive household, his grandparents were shot and killed while he was living with them, and he had been subjected to residential schools.[7] He had been sexually abused multiple times as a child and has experienced substance abuse.[8] These factors clearly demonstrate a distressing childhood and historic disadvantage, which would need to be taken into account by the trial judge when sentencing Dumas.
To consider alongside the Gladue factors present in this case is Dumas’ troubling criminal record, which included 75 prior convictions with nine of those convictions being in relation to sexual offences.[9] Expert witnesses on both sides reported that Dumas would continue to pose a high risk to the public and was very likely to consistently reoffend over the course of his lifetime.[10] Furthermore, the court-ordered expert was of the opinion that the condition which made him particularly a risk to youth and children and which made him likely to reoffend multiple times throughout his lifetime was a condition that occurred at birth.[11] If Dumas was born with a condition that made him a child sex offender, this might make Gladue factors less applicable because he would have arguable committed these offences without a historic disadvantage. However, it is also arguable that historic disadvantage and Dumas’ life experiences likely exacerbated any pre-existing conditions that he may have had.
Further, the historic disadvantage of his parents and previous generations may have increased Dumas’ chances of ending up with this condition. As such, while a congenital condition may mean that historical disadvantage was unnecessary for the offences to have occurred, historic disadvantage likely still played a role in the extent to which he committed such offences and thus Gladue factors should still be strongly considered to ensure that the most restorative measures are contemplated.
That said, I sympathize with the decision of the Court of Appeal and the trial judge in the case of Dumas. While Gladue factors were prevalent in this case and did need to be seriously deliberated over, in my view the trial judge did spend appropriate time reviewing Gladue factors as they applied to Dumas.[12] However, Dumas was found to be a dangerous offender who would very likely reoffend.[13] Gladue factors and s.718(2)(e) of the Criminal Code are for the purpose of using restorative measures for Indigenous peoples wherever possible. In Dumas’ case, removing Dumas indeterminately from the public was necessary for public safety because evidence strongly suggested that Dumas would continue to be a risk to the public for an indeterminate time. As stated by the trial judge and reiterated by the Court of Appeal, caselaw demonstrates that Gladue factors must be considered with protection of the public being of great importance.[14]
It would not have been reasonable to give him a sentence that would allow him to interact with the public where he was determined to be likely to commit another sexual offence. This is particularly the case when he was prone to assault children and youth, more vulnerable members of society. Dumas also committed some of these offences to other Indigenous individuals.[15] It does not seem to be in accordance with the purpose of restorative measures for Indigenous individuals to allow a dangerous offender who has a very high risk of reoffending to maintain access to Indigenous communities where he will likely harm the most vulnerable members of these communities. Additionally, section 761 (1) of the Criminal Code provides for a review of indeterminate sentences every seven years.[16] Dumas’s indeterminate sentence does not necessarily provide Dumas with a life sentence as he might feel is the case and as his counsel.[17] In fact, it could lead to him being granted parole in the event that he is later found to no longer be a risk to the public. As such, should he take measures to drastically improve his ability to be in community with others and his compliance to the law, he may find himself in a better place than he would have been with the determinate sentence for which he appealed.
Gladue factors must be seriously considered in sentencing, and restorative measures should precede imprisonment, particularly for Indigenous offenders, wherever possible. The Court of Appeal felt that while still taking into account the Gladue factors present in Dumas’ case and acknowledging the significant impact these factors have on Dumas as an individual, the trial judge made the correct decision in handing down an indeterminate sentence based on the significant risks that Dumas posed to the public. Considering the nature of his offences and his troubling history of past offences, upholding the indeterminate sentence appears proportionate given the circumstances even whilst accounting for Dumas’ life history and historic disadvantages.
Legislation
Criminal Code, RSC 1985, c C-46.
Jurisprudence
R. v Dumas, 2020 MBCA 28.
R. v Dumas, 2018 MBQB 49.
R. v Gladue, [1999] 1 S.C.R. 688.
Endnotes:
[1] R. v Dumas, 2020 MBCA 28 at para 1 [Dumas 2020].
[2] Ibid at para 1-2; R. v Dumas, 2018 MBQB 49 at para 8 [Dumas 2018].
[3] Dumas 2020 supra note 1 at para 3.
[4] Criminal Code, RSC 1985, c C-46.
[5] Ibid, s 718(2)(e).
[6] R. v Gladue, [1999] 1 S.C.R. 688 [Gladue].
[7] Dumas 2018, supra note 2 at para 9.
[8] Ibid at para 10.
[9] Dumas 2020, supra note 1 at para 5.
[10] Ibid at para 6-7.
[11] Ibid at para 6.17 Dumas 2018, supra note 2 at para 66.
[12] Dumas 2018, supra note 2 at para 8-13.
[13] Dumas 2018, supra note 2 at para 48-49.
[14] Dumas 2020, supra note 1 at para 5.
[15] Dumas 2018, supra note 2 at para 19.
[16] Criminal Code, supra note 4, s. 761(1).
[17] Dumas 2018, supra note 2 at para 66.
