If an offender qualifies for one of these methods, there are a number of Gladue impact factors a court will examine in deciding when to apply a restorative justice remedy. In addition, there are some other considerations regarding the offender and the community that will be used in the decision.
First, a Gladue analysis is optional and the offender can at any time waive the option to have the Gladue impact factors in their personal history considered in court. To have these impact factors and a restorative justice remedy considered, an offender must:
- Self-Identify as an Aboriginal
- Agree to undergo a restorative justice remedy and to comply with conditions imposed as part of such a remedy
If the offender decides to pursue a Gladue analysis, they will ask the court to consider the impact factors that have affected their personal history.
- A court will recognize the adverse impact factors that affect Aboriginals in general but an offender must show how some of these are present in their personal lives and have contributed to bringing them before the court
- These impact factors could include discrimination, institutional or personal abuse, dislocation from culture or family, substance abuse, and more
There are other considerations that the court will weigh in deciding an appropriate sentence and whether to apply a restorative justice remedy.
- The offender must be willing to take responsibility in full for their wrongful conduct and the consequences thereof
- The offender must wish to address the underlying impact factors that helped to cause that conduct so future offences can be avoided
This desire to avoid re-offending will reduce the threat to the public and may encourage a court to apply a restorative sentence to help the offender rehabilitate, even if the offence was serious: R. v. J.W.D. (2001) B.C.P.C. 0058
In addition, the community and family support available for the offender, as well as the community perception of the offence may be considered, especially in smaller communities where the offence may have a more dramatic effect:R. v. Homer (2003) B.C.C.A. 15.
- Community and family support for the offender will often indicate a greater chance that rehabilitation will succeed
- The specific approach to justice taken by the community will at times be considered to see if they will accept a restorative justice remedy as just: R. v. Mackinaw(2004) B.C.P.C. 0119; Proulx, supra, 106-7
- The views of the victim will also be considered –if they are willing to take part in a restorative process, are strongly against it, or impartial
A proposal is often presented in court outlining these views and the resources (treatment programs, counselling sessions, etc.) the community can make available for a restorative justice process. If no established programs are in place, the court will often need to be convinced that the community is both willing and capable of carrying out a sufficiently rigorous and effective deterring and healing process: R. v. Morris (2004) B.C.C.A. 305; R. v. Williams(2004) B.C.P.C. 0459.