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

6. Conclusion

This report has examined legislative, judicial, policy, and community efforts at addressing the overrepresentation of Indigenous offenders in the Canadian criminal justice system. Section 2 provided a brief statistical overview of the overrepresentation of Indigenous offenders, as well as a summary of Gladue, Ipeelee, and commentary in the aftermath of Ipeelee. Section 3 reviewed the literature surrounding overrepresentation, focusing on the practical challenges to the application of Gladue principles; criticism of the approach taken by judicial interpretation of s. 718.2(e); as well as other considerations such as offenders with fetal alcohol spectrum disorder and the application of Gladue to bail. Section 4 featured initiatives aimed at the implementation of Gladue principles – these programs aim to provide more restorative and culturally appropriate sentencing processes, sanctions, as well as rehabilitation programs. The final section highlighted the experiences of accused persons, judges, and defense counsel, noting that more comprehensive work about the experiences of justice system participants is required.

Indigenous overrepresentation is complex, with roots in factors such as the ongoing legacy of colonialism and systemic discrimination in the criminal justice system. While sentencing judges work at the frontlines of the criminal justice system, changing sentencing principles alone will not be a sufficient response, as was acknowledged by the Supreme Court in Gladue. The creation of Gladue Courts and other alternative justice programs for Indigenous offenders demonstrate the importance of extra-judicial solutions. At the Department of Justice Canada, the Aboriginal Justice Directorate (AJD) supports Indigenous community-based justice programs which offer alternatives to mainstream criminal justice processes. The AJD’s key objectives are to assist Indigenous peoples in assuming greater responsibility for the administration of justice in their communities; to incorporate Indigenous values within the Canadian justice system; and to reduce the rate of victimization, crime, and incarceration among Indigenous communities. AJD programs take a restorative approach, offer unique services based on the justice-related priorities of the communities in which they are situated, and are designed to reflect Indigenous cultures and values. Many AJD funding recipients incorporate Gladue in their everyday work. As this report has demonstrated, consistency in funding and the ongoing evaluation of these programs will be crucial in ensuring that Indigenous persons have access to a culturally appropriate criminal justice system across Canada.

Efforts to implement Gladue principles and reduce overrepresentation going forward should also be informed by the call by both the Truth and Reconciliation Commission and the United Nations Declaration on the Rights of Indigenous Peoples for the “recognition, revitalization, and full integration and implementation” of Indigenous legal tradition in Canada. While one view of s. 718.2(e) and Gladue-related initiatives is that their eventual success in eliminating overrepresentation would mean that they are no longer required, they should instead be thought of as a first step towards greater Indigenous self-determination in the criminal justice system.