Appeal court offers guidance on applying Gladue principles

In a decision that re-examines the application of the Gladue principles, the Ontario Court of Appeal set aside a lower court’s decision in a sexual interference case yesterday, finding that the trial judge “overemphasized” the principles in his sentencing ruling.

The Gladue principles, applied in the context of aboriginal offenders, take into consideration the defendants’ difficult life circumstances due to their native background. The principles are also meant to address the overrepresentation of aboriginals in the prison system.

Dennis Bauer, an aboriginal man, was found guilty of a sexual relationship with a 14-year-old girl who was a friend of his daughter’s. The trial judge sentenced him to eight months in prison.

The Crown appealed the sentence, arguing that the Gladue principles were applied more extensively than necessary in the case. In a decision Thursday, the province’s top court agreed.

“While the sentencing judge did correctly state the Gladue principles, he failed to ‘tie them in some way’ to the offender and the offence and in so doing, underemphasized the respondent’s moral culpability for this offence,” the court said

“While an aboriginal offender need not establish a direct causal link between his circumstances and the offence, the Gladue factors need to be tied in some way to the offender and the offence.”

The appeal court, which decided a three-year sentence was a better fit, said the trial judge did not determine how Bauer’s aboriginal background relates in some way to his crime.

In Bauer’s case, there was no evidence that his background diminished his moral culpability, the appeal court ruled.

According to the decision, Bauer’s participation in his aboriginal culture was limited and he grew up off-reserve with parents who were married for more than 45 years.

“The respondent never attended a residential school and there is no evidence he experienced any sexual abuse, discrimination, or forced displacement,” the court said.

“In the circumstances, the judge’s emphasis on addressing the impact of residential schools, displacement from communities, and higher incidents of suicide, substance abuse and incarceration among aboriginal people was misplaced in this case.”

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