For the third time, Ontario’s Court of Appeal has revisited the role of Gladue Reports and Gladue principles and their application to Criminal Code Review Boards as they review the situation of unfit and Not Criminally Responsible accused persons before them.

In Mitchell (Re), 2023 ONCA 229, most recently, the Court reviewed an Ontario Review Board’s Decision to transfer an NCR accused to maximum secure detention and upheld the Board’s disposition as reasonable.

The Judgment can be found here:

https://coadecisions.ontariocourts.ca/coa/coa/en/item/21346/index.do

However, the Court also noted that the Board’s consideration of Gladue principles was inadequate.

From the Judgment – with emphasis added by me:

(2)          The Board’s consideration of Gladue principles was inadequate

[18]        Although we conclude that the Board’s decision to detain the appellant in a maximum security setting is reasonable, we note that the Board’s consideration of the Gladue Report, and Gladue principles generally, was inadequate.

[19]        The Board referred to the Gladue Report several times in its reasons and acknowledged that the appellant “had an unfortunate childhood”. The Board wrote that it had reviewed “attempts by the hospital social worker to facilitate support for [the appellant] from local native services that had been to no avail since [the appellant] had declined involvement in this regard”; and later that “[the appellant] was primarily raised by his mother, who is not Indigenous, and had very little contact with his father.”

[20]        The Board’s reasons do not engage with enough detail on this point to discern what relevance the appellant’s indigeneity, family history (including residential schools), and the appellant’s difficult upbringing, had for the Board. Further, while it is not clear why the Board thought it noteworthy that the appellant’s mother is not Indigenous and that he has had little contact with his father, if it was to attenuate the need to consider Gladue principles, the Board would have fell into error: see R. v. Kehoe, 2023 BCCA 2, at paras. 52-57. Gladue principles seek to address precisely the kind of disconnection and related lack of positive social structures found in this case.

[21]        As in sentencing, taking into consideration Gladue principles does not mandate a different result or favoured treatment for Indigenous people. What is required is a “different method of analysis”, which guards against the discrimination that “as experience demonstrates, will occur where decision-makers fail to advert to the specific and particular problems faced by [Indigenous] Canadians in our system of justice”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59; United States of America v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496, at para. 63; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at paras. 58-59.

[22]        In the context of the Board’s process, this different method of analysis requires adjudicators to pay particular attention to the unique circumstances of Indigenous people detained in psychiatric facilities, and how those circumstances affect the four statutory criteria to be considered by the Board under the Criminal Code, R.S.C., 1985, c. C-46.

[23]        Pursuant to s. 672.54 the Board is to consider the following four criteria when making a disposition: i) the need to protect the public from dangerous persons, ii) the mental condition of the accused, iii) the reintegration of the accused into society, and iv) the other needs of the accused. In Sim (Re) (2005), 78 O.R. (3d) 183, at para. 16, this court confirmed that Gladue principles apply to proceedings before the ORB, though the court raised some question with respect to the application of Gladue principles to the first and second criteria (i.e., public protection and mental condition of accused). In Faichney (Re), 2022 ONCA 300, at para. 24, Paciocco J.A. clarified that Sim, when read in context, did not suggest that Gladue principles are irrelevant to the first and second statutory criteria. Rather, while Gladue principles may “more commonly inform statutory factors three and four” (reintegration into society and other needs of the accused), they may be relevant to all four factors and the Board should rely on as full a record as possible.