The Ontario Court of Appeal in United States v Leonard: The Expansion of Gladue and the Role of “Aboriginality” in the Law
October 2nd, 2012
Back in March 2012, TheCourt.ca highlighted an interesting case being heard by the Ontario Court of Appeal (“ONCA”). The decision in United States v Leonard, 2012 ONCA 622 [Leonard] was released on September 21, 2012. It is significant in its application of the R v Gladue,  1 SCR 688 [Gladue] principles to situations involving Aboriginal defendants outside of sentencing.
Detailed facts of the case can found here. Added to the proceedings is another defendant, Rejean Gionet, an Aboriginal man from the Ginogaming First Nation. Both Gionet and Zachary Leonard face trafficking charges in the United States. The Minister of Justice signed separate extradition surrender orders for them to face trial in the United States, where their Aboriginal ancestry will not be taken into account in sentencing and the mandatory minimums for the crimes committed will be drastically longer than the sentences they would face in Canada.
Also similar is both men’s pasts. As Sharpe JA notes in paragraph 7 of his majority judgment, the Applicants have both “suffered from the litany of disadvantages that the Supreme Court of Canada (“SCC”) has attributed to Canada’s sorry history of discrimination and neglect in relation to Aboriginal peoples.” Members of both Leonard and Gionet’s families were survivors of the residential school system; both came from homes torn apart by addiction and both battled drug and alcohol abuse from a young age.
The Applicant’s made claims that the extradition surrender orders breached their ss. 6(1) and 7 Charter rights. In assessing these rights, the Minister found that he would apply the Gladue principles to their s. 7 claim. However, these principles did not apply to their s. 6(1) claim. In the Minister’s surrender decision for Mr. Leonard, he found that it would be “unfair” for him to “escape a trial on the offence alleged against him on the basis that he is an Aboriginal defendant…when accused persons in Canada must generally face prosecution regardless of their heritage….” The Minister reasoned in the same way in Mr. Gionet’s surrender order.
The issue at stake in this case is whether the Minister erred in law by failing to give adequate consideration to the Applicant’s Aboriginal status and the principles found in Gladue in relation to their ss. 6(1) and 7 Charter claims.
The answer to this question was more than a simple “yes” or “no.” The strongly worded decision is essentially an indictment of the Minister’s failure to take into account even the most “basic” Charter principles. In addition, the ONCA lambasts the Minister’s reasoning as “seriously flawed,” “circular” and lacking in rationale.
Sharpe JA begins his analysis of the Minister’s surrender decisions with the Applicant’s argument that the Minister failed to apply the proper legal test when considering the Gladue principles in relation to the Applicant’s section 7 rights claims.
The Gladue principles were articulated in Gladue as a response to s. 718(2)(e) of the Criminal Code, RSC, 1985, c C-46, which provides a mechanism for judges to take into account a defendant’s Aboriginal heritage in the sentencing process.
The legal error in the Minister’s analysis rests on the statement that the applicant’s should not be able to “escape trial” on the basis of their Aboriginal heritage, as this would be “unfair” to other accused persons. As Sharpe JA articulates, this proposition reveals two significant errors of law.
The first is that Gladue “stands for the proposition that insisting that Aboriginal defendants be treated as if they were exactly the same as non-Aboriginal defendants will only perpetuate the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of Aboriginals in our prisons.” In other words, the Minister is resting his Gladue analysis on an idea of “formal equality,” whereby everyone is treated the same, regardless of their differences. The alternative is “substantive equality.” Substantive equality does not link equality with identical treatment. Substantive equality is the approach the SCC has advocated for in R v Kapp,  2 SCR 483. Sharpe JA points out that the SCC “soundly rejected” the formal equality framework in both Gladue and later in R v Ipeelee,  1 SCR 433 [Ipeelee]. Therefore, the Minister’s reliance on this line of thinking is seriously flawed.
The second significant error of law in the Minister’s reasoning is its “either-or” logic: either to surrender the Applicants to the United States to face trial there or allow them to escape prosecution entirely. This “false dichotomy” constitutes an error in law, as there is no reason the Applicants could not be tried in Canada for their crimes. As Sharpe JA writes, a decision that is based on such a false dichotomy cannot be reasonable. Reasonableness is the required standard of review for decisions based on ministerial discretion. Thus, the Minister’s surrender orders cannot be valid based on the Applicant’s s. 7 argument. The Court still has to examine the s. 6(1) based argument.
United States of America v Cotroni; United States of America v El Zein,  1 SCR 1469 [Cotroni] established that, when a Canadian citizen is extradited, there is a prima facie violation of their s. 6(1) Charter right to remain in Canada. However, this infringement can often be justified under s. 1 of the Charter. Two of the factors in what is known as the “Cotroni assessment” include the nationality and residence of the accused and the severity of the sentence the accused is likely to receive in each jurisdiction. The Minister stated that the Gladue principles were not relevant to the Cotroni analysis. As Sharpe JA confirms, the two factors mentioned above require a consideration of individual circumstances; in this case, the severity of the sentence is especially relevant. Sharpe JA clearly states that the proper exercise of prosecutorial discretion in the Applicants’ cases would take this difference into consideration, thereby fully taking into account the Gladue principles.
The ONCA ultimately decided to set aside the surrender orders and not remit the orders to the Minister for reconsideration. In an unusual episode of judicial activism, Sharpe JA states that “it would be ‘pointless’ to remit the matter to the Minister for reconsideration. I can see no possibility that the Minister could marshal reasons to support surrender….” MacPherson JA dissents in so far as he would remit the surrender orders to the Minister for reconsideration.
The Role of “Aboriginality” in the Law
Leonard clearly holds that the Gladue principles can apply to situations beyond sentencing. In fact, Sharpe JA states that the Gladue principles should apply in a multitude of situations where Aboriginal people generally “interact with the justice system.” While this is undoubtedly a success for those who understand the effects of the deeply entrenched discrimination that Aboriginal people face in Canada, Sharpe JA spends a considerable amount of time in the decision justifying why differential treatment leads to greater equality in Canada.
The decision in Gladue came out in 1999 and stated that “[t]he fact that a court is called upon to take into consideration the unique circumstances surrounding these different parties is not unfair to non-aboriginal people.” In fact, the purpose of Gladue was to ensure that Aboriginal offenders would be treated “fairly by taking into account their difference.” 13 years later in Ipeelee the SCC was forced to reiterate that “the Gladue approach does not amount to reverse discrimination but is, rather, ‘an acknowledgement that to achieve real equity, sometimes different people must be treated differently’.”
The fact that these principles must be repeated in nearly every case involving Aboriginal defendants not only reflects the judicial system’s struggle with the concept of substantive equality, but also gives insight into the discrimination against Aboriginal peoples in Canada that still pervades the public consciousness. For this reason, decisions such as Leonard are necessary to further solidify the reality that Canada’s past has deeply affected the past, present and future of Canada’s Aboriginal population and that differential treatment will be necessary in order to right historical wrongs.[filed: Aboriginal Law]