Gladue - Effect

Effects of Gladue Factors

Although most offences can potentially qualify for a restorative justice remedy, this may not always be found appropriate even when Gladue factors are present.  The more serious and violent the offence, the more likely it willbe that an analysis of sentencing principles will demand a similar result for Aboriginal and non-Aboriginal offenders, including prison terms of similar lengths, in spite of Gladue factors present in the personal history of the offender.

This is because the need to denounce the offence and deter future offenders and the need to protect the public will be greater than can be met by available restorative justice processes and will outweigh the value of rehabilitating the offender: R. v. Wells, [2000] 1 S.C.R. 207.  Also, if restorative justice processes have failed to work for an offender in the past, it is less likely that they will be used again in place of a more conventional sentence.

In every case the appropriate sentence will be different depending on the details of the offence, the offender, the community involved, and the victim.  Even those with an extensive criminal history may qualify for an alternativesentence under the appropriate circumstances, especially if it is believed this will pose no serious risk to the public:R. v. W.J.L., (2005) B.C.P.C. 0572.  Sometimes serious, violent offences may also qualify: R. v. Reid, (2002) B.C.C.A. 268.