Gladue and bail, consent and medical malpractice, and banishment


This week on Legally Speaking with Michael Mulligan:

In 1999 the Supreme Court of Canada, in a case called Gladue, set out principles to be considered when indigenous people are involved in the criminal justice system. Judges were directed to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.

Despite the admonishments from the Supreme Court of Canada, the overrepresentation of aboriginal people in jail has continued to increase.

Aboriginal people make up slightly less than 5% of the Canadian population. In 2001, 17.59% of people in federal penitentiaries were aboriginal. By 2020, this percentage had increased to 30.04%.

A recent Ontario decision is discussed on the show. The judge in the case overturned a lower court decision to detain an aboriginal person while they awaited trial. The judge made clear that it’s a serious error of law not to consider Gladue principles at a bail hearing.

Despite being charged with several serious offences, the judge concluded that the aboriginal person should be released pending trial taking into account their background which included enduring a horrible childhood marked by physical and sexual abuse, as well as discrimination at being a two-spirited person.

The judge considered the recent opportunity the person had for housing and viewed their background in the context of trauma, and mental illness, including fetal alcohol syndrome, ADD, PTSD, anxiety, depression, and alcohol and drug addiction.

The decision is an important reminder of why it’s important to pay careful attention to the circumstances of aboriginal people involved in the justice system, at all stages of proceedings.

In order to ensure that judges are aware of Gladue considerations, it would be wise to ensure that inquiries are made at an early stage to determine if someone identifies as aboriginal.

Court files that involve an allegation of violence in an intimate relationship are indicated with a letter “K” so that consideration can be given to special factors that can arise in cases of that kind. A similar system could be adopted, perhaps by adding a letter “G” when an accused person is aboriginal.

Particularly, given the increased use of video and audio connections in response to COVID-19, making an inquiry to determine if the accused is aboriginal would be a wise practice.

Also discussed on the show is a case involving an unsuccessful claim for medical malpractice after a surgical wisdom tooth extraction resulted in permanent, debilitating, facial pain.

While the plaintiff agreed that the doctor had used reasonable care in conducting the procedure, her claim was based on the fact that the doctor had not warned her of the rare possibility of such permanent and debilitating pain.

While it was common ground that no such warning was provided, the claim was still not successful because the trial judge, and the Court of Appeal, concluded that even with such a warning the plaintiff would have proceeded with the surgery.

The legal test is whether a reasonable person would still have agreed to the medical procedure if they were advised of the risk. In this case, the plaintiff had terrible pain from her wisdom tooth, before the surgery and nothing else was able to alleviate this.

Finally, on the show, the BC Court of Appeal confirms that absent extraordinary circumstances judges cannot impose probationary conditions that banish people from a community. In the case being considered a condition that required someone to stay 100km away from a home they had broken into was reduced to 100 meters.


Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.