Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System

1. Introduction

Since the 1970’s, the overrepresentation of IndigenousFootnote 1 persons in Canada’s criminal justice system has been a critical concern among policy-makers, academia, and Indigenous communities. Numerous government and academic studies on this subject illustrate the extent of the problem.

As part of the amendments to the Criminal Code introduced in 1996, Parliament enacted section 718.2(e), a remedial provision aimed at alleviating Indigenous over-incarceration through sentencing. In April 1999, the Supreme Court of Canada interpreted s. 718.2(e) for the first time in R v Gladue (“Gladue”), a decision in which an Indigenous woman was sentenced to imprisonment for the manslaughter of her common-law spouse.

The Supreme Court’s decision in Gladue had important ramifications for justice system participants and stakeholders. To achieve the purpose and maintain the principles set out in Gladue, a number of programs were established, funded by the federal and provincial governments.

Various critiques and concerns about the application of Gladue were subsequently raised. In 2012, the Supreme Court in R v Ipeelee (“Ipeelee”) reaffirmed its commitment to the principles enunciated in Gladue, addressed a number of critiques, and clarified concerns.

Despite the Court’s commitment, as well as increasing availability of Gladue-related programming, the over-incarceration of Indigenous peoples remains a persistent, growing, and urgent issue for the Canadian criminal justice system. The justice system, as it relates to Indigenous peoples, continues to be in a state of crisis (Iacobucci 2013; Gladue para 64).

1.1 Objectives

In view of the implications of the Gladue and Ipeelee decisions for Canada’s criminal justice system, this paper was designed to meet the following objectives:

  1. to provide a brief statistical overview on the overrepresentation of Indigenous persons in the Canadian correctional system, a summary of the legislative reforms that led to s. 718.2(e), and an overview of the court’s interpretation in Gladue and Ipeelee;
  2. to analyze the key issues in the literature regarding the application of s. 718.2(e), and the Gladue and Ipeelee decisions in sentencing Indigenous individuals;
  3. to describe the justice system initiatives and programs that have been put in place to support the application of s. 718.2(e) in Canadian provinces and territories;
  4. to summarize the studies on the experiences of members of the court system and Indigenous accused who have participated in Indigenous justice system initiatives.

1.2 Methodology

A first draft of this report was completed in 2011. The first draft summarized literature from 1999 to 2010 found in databasesFootnote 2 using the keywords Gladue, Aboriginal Justice, Aboriginal Court, indigenous populations, indigenous justice, indigenous court, criminal justice, Aboriginal offender. Websites of the federal, provincial, and territorial governments as well as their partners were also examined to identify model programs in Indigenous justice.

Since the Ipeelee decision in 2012 addressed critiques and concerns following Gladue, the first draft of this report has since been updated, as issues raised in much of the prior literature has been clarified by the Supreme Court. The update includes literature from 2010—2016,Footnote 3 notably focusing on commentary and critique following Ipeelee, and practical challenges to the implementation of Gladue principles. The latter is informed by the experiences of the Indigenous Justice Program, which funds and supports Gladue-related programming across Canada.

This report is structured in four sections. The first is a brief statistical overview of the overrepresentation of Indigenous persons in the criminal justice system, and of the legislative reform leading to s. 718.2(e) and of the Gladue and Ipeelee decisions. The second section discusses key issues in the application of s. 718.2(e). The third section features initiatives and model programs which provide sentencing processes, sanctions, and rehabilitation programs which are meant to reflect Gladue principles. The final section highlights experiences of accused persons and justice system actors with Gladue and with Indigenous Justice initiatives and programs.