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Section 718.2(e) of the Criminal Code directs sentencing judges to exercise restraint in the use of incarceration ‘with particular attention to the circumstances of Aboriginal offenders.’ In R v Gladue, the Supreme Court of Canada interpreted this as a remedial provision aiming to reduce the incarceration of Indigenous people. That has made it appear to be a failure by its own lights. Yet to write off section 718.2(e) and the Gladue principles would be to fail properly to understand their moral foundations and structure. Judges are called upon to reduce the incarceration of Indigenous people neither by working backwards from prison demographic targets nor merely by combating implicit bias. Rather, Gladue requires judges to open their minds to hitherto unappreciated reasons that many Indigenous offenders should be afforded mitigation, restorative justice, and community-based accountability. One reason, we argue, relates to the unfair criminogenic disadvantages disproportionately faced by Indigenous offenders. Another reason is that the Canadian state’s complicity in such disadvantages calls into question its legitimate authority and its standing to blame Indigenous offenders. In sum, Gladue calls upon our courts to widen the horizon of fairness in their treatment of Indigenous people. This matters for its own sake in each and every case, whether or not it brings about an appreciable reduction in Indigenous incarceration in the aggregate. Our reconstruction of Gladue not only rescues it from cynical dismissals but also helps to solve the central doctrinal puzzles surrounding it: how Indigenous offenders’ unique life circumstances must be connected to their offences to be mitigating; how Gladue principles should apply differently to more and less serious offences; how a variant of Gladue principles should be extended to members of other disadvantaged groups such as Black Canadians; and how judges should weigh the interests of Indigenous victims when sentencing Indigenous offenders.
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Aboriginal representation in Canadian correctional institutions has increased rapidly over the past decade. We calculated “years of life lost to incarceration” for Aboriginal and non-Aboriginal Canadians.
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In this article, practices of Canadian electoral management bodies at federal provincial and territorial levels are examined, especially those methods designed to assist electors with disabilities with voting. Different models of disability co-exist within and around electoral rules, procedures, practices and overall systems. Electoral arrangements in Canada incorporate three distinct models of disability: an individualistic-biomedical approach to disability, a functional model of disability, and a social model of disability. These models have distinctive implications for addressing barriers and making access and inclusion real for voters with disabilities. Electoral reforms address different broad categories of impairments: electors with permanent disabilities, serious illness or infirmity; electors with physical mobility issues; electors with hearing challenges; electors with visual impairments; and, electors with any significant disability, whether chronic or episodic in nature, visible or invisible in appearance. Changes to election processes are shifting the mix of disability models embedded in electoral systems, away from individual and medical conceptions and toward functional and contextual notions of disability.
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2022 CanLIIDocs 1167
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The authors argue that civil procedure sanctions and traditional common law procedural remedies are often insufficient or unavailable to deter tortfeasors from intentionally destroying evidence related to their wrongdoing and to compensate victim-plaintiffs. They explain why a civil cause of action is appropriate and necessary to address this serious threat to the viability of the court's fact finding process and ability to properly compensate injured persons.
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Spoliation in the context of civil litigation occurs when a party intentionally destroys, mutilates, alters, or conceals evidence, typically documents, that are relevant to litigation. Spoliation has become easier than ever with the advent and rise of electronically stored information. This article gives a brief overview of the history of spoliation and criteria required to trigger the need to preserve documents relevant to litigation. Following this overview, the article identifies the issues with the current remedies for spoliation in Canada and points to the advances the United States has made to address this pressing issue. The article concludes with recommendations for further research into spoliation in Canada.
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Proportionality: Constitutional Rights and their Limitation is the most comprehensive and authoritative account of the vast literature on proportionality and would be indispensable to anyone interested in the field. Barak evaluates several justifications for the use of proportionality and several defences of proportionality against its critics. This review article concentrates on one such defence: viewing proportionality as a structured and analytically coherent set of tests requiring the government to provide reasons and justifications for all of its actions. We identify several prominent recent writers, Barak among them, who represent a shift in the literature on proportionality towards a justification-based approach, and assess their rationales for the duty of the government to give justifications and provide reasons for its actions. However, we claim that those rationales do not necessarily support proportionality and that a more categorical approach, such as ‘exclusionary reasons,’ follows just as much from the ideas underlying justification and provides a better anchor for proportionality.
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