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Legal Information/ Legal Briefs

Legal Briefs

Until 2010, these legal briefs provide examples of judgments pertaining to everyday situations. Beginning in 2012, they deal with various topics of general interest, such as rental issues, family law, human rights, civil liability, insurance, dealings between spouses and social aid. They are intended to inform and to prevent undesirable situations.


 


Legal Briefs 2020

  Month
Number
Legal brief
August - September
 7
Sentencing, aboriginal offenders and Gladue reportsThis hypelink opens a PDF file in a new window.
Criminal law is based on the premise that criminal liability only follows from voluntary conduct. In this regard, the sentence, which is the legal consequence of the crime for which a person is responsible, must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 

The analytical framework applicable to sentencing for Aboriginal offenders is not a "race-based discount", but, rather, one that considers the degree of responsibility, as affected by background and systemic factors. Proportionality is an essential condition of a just sanction.[1] When sentencing an Aboriginal offender, the Court must consider certain elements: first, the systemic and background factors that affect an individual's life path and, second, the alternative sentences other than imprisonment that would serve to achieve the same penological goals. While the first bear on the moral blameworthiness of the offender with a view to a proportionate, fair and just sentence, the second acknowledge a different view of justice and the way in which it is administered.[2]

One of the indispensable tools for sentencing is the Gladue report, which is designed to paint a portrait of an Aboriginal offender's life path, beginning with his family's history and that of his community. These reports also focus on systemic and background factors that have affected the individual. The Gladue report makes it possible to tailor the sentence to the degree of responsibility. From a practical point of view, the preparation of a Gladuereport, like the presentence report, is requested by asking the court at the sentencing phase. 

The Supreme Court of Canada has acknowledged that: 
“there is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system. […] Statements regarding the extent and severity of this problem are disturbingly common. […] The Canadian criminal justice system has failed Aboriginal peoples of Canada — First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural — in all territorial and governmental jurisdictions. The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice.[3]

The Supreme Court of Canada has also stated that:
The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community. (R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433, para 74).

The court must therefore assess whether a program or measure can be implemented to achieve the same purpose. Such an approach focuses on re-establishing harmony within a community and on the principles of restorative justice. (R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433, para 59). 

In conclusion, the sentencing of an Aboriginal offender must consider his degree of moral blameworthiness in order to be proportionate and, therefore, just. From a practical standpoint, the tool that allows the court to take systemic factors into account is the Gladue report. 

________________________
[1] R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433, para 37. 
[2] R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433, paras. 73-74. 
[3] R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688, paras. 61-64. 









Legal brief *
August - September  2020
Number  7
Text prepared by   Me Jean-Pierre Fundaro
 
* The information set out in this document is not a legal interpretation.
The masculine is used to designate persons solely in order to simplify the text.
June - July
 6
George owns a house and has money in his bank account. Is he financially eligible for legal aid?This hypelink opens a PDF file in a new window.
George is married to Theresa and they have four minor children. George works as a part-time employee for a transportation company. Theresa is a teacher and also works part-time. They have a combined annual gross income of $39,200. George and Theresa own their family residence, which has a value of $ more
May
 05
What have the courts ruled about Covid-19, shared custody, rights of access and the return to school? This hypelink opens a PDF file in a new window.
The Covid-19 pandemic has turned the daily lives of the entire Québec population upside down, especially that of blended and separated families. This situation has brought its share of concerns and questions to parents of children in shared custody as well as parents whose children have access right more
April
 4
Is a summer day camp required to integrate a disabled child in the camp? This hypelink opens a PDF file in a new window.
Patrick and Marie-Pierre want to enroll their disabled child in the summer day camp offered in their municipality. Their child must take medication during the day, which he cannot administer on his own. He also needs hygienic care. Can the day camp refuse to register him based on these reasons? more
March
 3
Do pictograms have the force of law?This hypelink opens a PDF file in a new window.
When a person disobeys a pictogram (a drawing) that indicates that persons have to hold the handrail of an escalator at a metro station, the person does not, in all cases, commit an offence under a by-law. 

A woman was arrested by a police officer emplo more
February
 2
Are minors eligible to legal aid?This hypelink opens a PDF file in a new window.
Minors (under 18 years of age) who need legal representation may be eligible for legal aid. Just make an appointment with a legal aid lawyer to have their admissibility checked. 

Financial eligibility 

The following factors are taken into ac more
January
 1
HAS or SARPA, which applies to me?This hypelink opens a PDF file in a new window.

The Homologation Assistance Service is intented for parties residing in Quebec who wish, for whatever reason, to modify arrangements pertaining to child custody or access rights or support involving a child or spouse (or former spouse), where the par
more
 
© Commission des services juridiques Création: Diane Laurin - 2017