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Gladue factors must be applied in determining extradition cases

September 21, 2012

Minister of Justice required to consider the Gladue factors when deciding whether to order the surrender for extradition of an Aboriginal person

Are the “Gladue factors” used to assess sentencing for Indigenous offenders applicable in to extradition?  The Ontario Court of Appeal has said “yes”.


In R. v. Gladue, the Supreme Court of Canada observed that “[y]ears of dislocation and economic development have translated, for many aboriginals, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation”. The Court recognized that these conditions, along with racism and bias, had contributed to the grossly disproportionate incidence of crime and incarceration amongst Aboriginal peoples, which it described as a “crisis” in the criminal justice system.

Consequently, the Supreme Court held, judges should use a different framework of analysis for sentencing Aboriginal offenders, taking into consideration “the distinct situation of aboriginal peoples in Canada” including the unique systemic or background factors which may have played a part in bringing a particular Aboriginal offender before the courts and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.

In this case, the issue was whether the Gladue factors were relevant in the context of extradition and, in particular, whether the Minister of Justice was required to consider the Gladue factors in determining whether surrendering an accused Aboriginal person to be prosecuted in the United States.

The accused, Zachary Leonard, was a Canadian citizen and a member of the Rainy River First Nations. The United States sought his extradition to face trial on a charge of drug trafficking. The Minister of Justice gave his authority to proceed with the extradition. If extradited, Leonard would face a likely sentence of between 15 and 19 years imprisonment. He could be prosecuted for the offence in Canada, where he would face a much lower sentence (given his peripheral involvement in the offence, lack of criminal record, Aboriginal status and the significant rehabilitative steps taken since his arrest).

The Court of Appeal’s decision

The Court of Appeal held that the Minister of Justice is required to consider the Gladue factors when deciding whether to order the surrender for extradition of an Aboriginal person, and that the Minister had failed to do so in connection with Leonard, who the Court found had “suffered from the litany of disadvantages that the Supreme Court of Canada has attributed to Canada’s sorry history of discrimination and neglect in relation to Aboriginal peoples.”

Accordingly, the Court quashed the Minister of Justice’s surrender order. A majority of the Court further concluded that it would be contrary to the principles of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms to surrender “this young, Aboriginal first offender to face a lengthy, crushing sentence in the United States that would almost certainly sever his ties to his family and Aboriginal culture and community with which he so closely identifies”. Consequently, the majority of the Court declined to send the matter back to the Minister for reconsideration.

Click here to read the Court’s decision.


Jessica Orkin

Practice Areas

Aboriginal Law, Appeals & Judicial Review, Constitutional Law, Criminal Law