Supreme Court of Canada –  1 S.C.R. 688
Gladue is a leading case in aboriginal criminality. It must apply when sentencing an Aboriginal offender: judges have to consider his historical and social context in order to make their decision.
What are the considerations to be taken into account when sentencing an Aboriginal offender?
The judge must take into account systemic of historical factors in the offender’s life. He must also consider the different kinds of sanctions and sentencing procedures available and called upon because of his aboriginal heritage. The fact that he lives in the city does not prevent the application of such an evaluation (unanimous decision).
Between: Jamie Tanis Gladue
And: the British Columbia Crown
Interveners: Canada, Alberta and Aboriginal Legal Services of Toronto Inc.
On September 3, 1996, Parliament passed the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, which introduced a series of amendments (special consideration for Aboriginal offenders and conditional sentences) as part of an important reform of the sentencing regime in Canadian criminal law (Bill C-41, 1996). The conditional sentence of imprisonment was seen as an alternative for non-dangerous and Aboriginal offenders (Ikonomov, 2005: 297-298). With this new legislation, the federal government wanted to decrease the number of prison sentences and to promote restorative justice principles in sentencing (Wells, 2000).
On September 16, 1996, Gladue, a Cree woman from British Columbia (Nanaimo), was charged with manslaughter for the alleged killing of her common-law husband, Reuben Beaver, the year before. She had been living with him since the age of 17 and had one child already and was pregnant with the second one. There was a history of abuse toward Gladue by Beaver. During a fight in which Gladue accused Beaver of infidelity and he did not deny it, she advanced towards him with a large kitchen knife and stabbed him. After an alcohol test was administered by the police, it was determined that Gladue had blood alcohol content between 0.155 and 0.165 g per litre of blood.
In 1997, Gladue entered a plea of guilty to the charges. Between the stabbing and the sentencing, Gladue entered a counseling and rehabilitation program for alcohol and drug abuse. She passed Grade 10 and started Grade 11. It was also discovered that she had a hyperthyroid condition, which made her highly sensitive to emotional situations. She expressed remorse at the sentencing hearing.
Gladue: The Court must recognize the weight and object of the Criminal Code disposition on Aboriginal peoples and decide not to imprison her.
The Crown: The sentence was appropriate despite considerations of the offender’s Aboriginal culture.
British Columbia Supreme Court (1997): Because of the particular circumstances of the case, a suspended sentence or a conditional sentence of imprisonment is not suitable. Gladue’s Aboriginal status does not produce “special circumstances” that permits an alternative sentence. Since the offence was serious and the woman was not living in an Aboriginal community, an imprisonment of three years is satisfactory.
British Columbia Court of Appeal (1997): Affirmed the lower court’s decision, but determined that the sentencing judge had misinterpreted the Criminal Code in claiming that it did not apply since the accused lived off-reserve.
Lamer, L’Heureux-Dubé, Gonthier, Cory, Iacobucci, Bastarache, Binnie
Section 718.2 (e) of the Criminal Code asks the trial judge to seek a sanction other than imprisonment for Aboriginal offenders when circumstances allow it. It was enacted to correct the overrepresentation of Aboriginal offenders in Canadian prisons. For each case involving an Aboriginal offender, this criterion has to be considered as well as the other criteria and factors set out in the Criminal Code when evaluating the appropriate sentence to be given. Section 718.2 (e) of the Criminal Code is applied to every Aboriginal offender whether he or she lives in a community or not.
In order to evaluate the situation correctly, a trial judge must take into account the systemic and historical factors that led to the trial of the Aboriginal offender in this case and the different types of sentencing procedures and sanctions suited in light of the offender’s Aboriginal ascendancy. However, section 718.2 (e)’s scope should not be interpreted as necessarily reducing the prison sentence of Aboriginal offenders. The sentence must always be delivered in the interest of justice, the accused and society.
Here, the lower courts were mistaken in their interpretation of section 718.2 (e) of the Criminal Code since they excluded Aboriginal offenders living off-reserve for its application and did not consider systemic factors which could have played a part in Gladue’s resorting to violence. Even though their errors would usually justify a new sentencing hearing, Gladue had already been granted full parole after six months of incarceration. In light of these circumstances, it is not in the interest of justice to order a new sentencing hearing.
The Gladue case is considered to be groundbreaking since it was the first Supreme Court decision pertaining to the sentencing reform of the Criminal Code that took place in 1996, and it highlighted the problem of the overrepresentation of Aboriginal offenders in the criminal justice system. It was the first Supreme Court decision where the concept of “restorative justice” was invoked along with the imperative of taking it into account each time an Aboriginal offender is involved (Archibald, 2005: 251).
In the months after the Gladue ruling, lower courts began to deal with the issue of the disproportionate jailing of Aboriginal offenders by following the guidelines issued by the Supreme Court in cases where the convicted individuals did not have long criminal records. The use of shorter jail sentences or conditional sentences (probation) was favoured (Quigley, 2000: 322)
It has been close to fifteen years since the sentencing principles were codified and the incarceration rate, for both Aboriginal and non-Aboriginal offenders alike, has not decreased substantially (Ikonomov, 2005: 313). Criminologists are skeptical about the effectiveness of the restorative justice process because it has not ended the overrepresentation of Aboriginal offenders in Canadian prisons (Quigley, 2009).The most recent data from Statistics Canada shows that even though Aboriginal people represent 4.3% of Canada’s population, they account for about 18% of our jail population (numbers verified in August 2013). Since 2001, the number of Aboriginal prisoners in federal prisons has gone up by 56% (Campion-Smith, 2013).
In 2013, the Department of Justice published a report of the application of Gladue (April and Orsi, 2013). Even though it concludes that many judges apply the Gladue criteria across the country, a lot of them are ill informed about the availability and the nature of Gladue reports that should be presented on the accused’s history. It also appears as though the money available for the production of these reports is very limited.
In 2013, Canada’s Correctional Investigator Howard Sapers asked the federal government to address this social crisis as soon as possible. He concluded that Aboriginal peoples are more likely to spend a large portion of their sentence behind bars (Campion-Smith, 2013).
R. v. Wells,  1 R.C.S. 207
April Sébastien and Mylène Magrinelli Orsi. 2013. Gladue Practices in the Provinces and Territories. Department of Justice Canada.
Archibald Bruce P. 2005. Coordinating Canada’s Restorative and Inclusionary Models of Criminal Justice: The Legal Profession and the Exercice of Discretion under a Reflexive Rule of Law, Canadian Criminal Law Review 9: 215-260.
Campbell Mary E. 1999. Case Comment: R. v. Gladue, Canadian Criminal Law Review, 237-241.
Campion-Smith Bruce. 2013. « Prison watchdog calls soaring aboriginal population in jail a ‘critical situation’ », Toronto Star. Online http://www.thestar.com/news/canada/2013/03/07/prison_watchdog_calls_soaring_aboriginal_population_in_jail_a_critical_situation.html
CBC News. 2009. Father of girls who froze to death gets three years in prison, CBC News – Saskatchewan, March 6, 2009. On-line. http://www.cbc.ca/ canada/saskatchewan/story/2009/03/06/sk-pauchay-sentence.html. Retrieved on May 19, 2009.
Coolican Lori. 2009. Father of frozen toddlers makes tearful plea for freedom, National Post, March 4, 2009. On-line. http://www.nationalpost.com/related/topics/ story.html?id=1352918. Retrieved on May 19, 2010.
Ikonomov Daniel. 2005. The Evolution of Conditional Sentencing and the Potential for Developing a System of Intermediate Sanctions, Canadian Criminal Law Review 9: 295-314.
O’Marra Alfred J.C. 2006. The Impact of Inquests on the Criminal Justice System in Ontario: A Decade of Change, Canadian Criminal Law Review 10: 117-173.
Quigley Tim. 2000. Has the Role of Judges in Sentencing Changed…or Should it?, Canadian Criminal Law Review 5: 317-338.
Quigley Tim. 2009. Pessimistic Reflections on Aboriginal Sentencing in Canada, Criminal Reports 6: 135.