R. v. Gladue: Sentencing Indigenous People Fairly
Section 718.2(e) of the Criminal Code tells judges to consider all reasonable alternatives to jail, with particular attention to the circumstances of Aboriginal offenders. In R. v. Gladue, [1999] 1 S.C.R. 688, the Supreme Court of Canada explained what that means, and in R. v. Ipeelee, 2012 SCC 13, it confirmed and strengthened those principles.
- Judges must consider the unique systemic and background factors that may have brought an Indigenous person before the court.
- They must also consider sentencing procedures and sanctions that may be appropriate because of the person's Indigenous heritage or connection.
- The person does not have to prove a direct causal link between their background and the offence (Ipeelee).
- These principles apply to every Indigenous person, including for serious offences.
The case
Jamie Tanis Gladue, a young Cree woman, pleaded guilty to manslaughter. At sentencing, the judge did not apply section 718.2(e) because she was living off-reserve. The Supreme Court held that section 718.2(e) applies to all Aboriginal people, wherever they live, and is a direction to address the overrepresentation of Indigenous people in prison. Her sentence itself was not changed, as she had already been released.
Gladue in practice
- A Gladue report, prepared by a trained writer, tells the court about the person's history, family, community, and the effects of colonialism, residential schools and other systemic factors.
- Some Ontario courts have specialized Indigenous Peoples' or Gladue courts.
- The same principles inform bail decisions.
- Restorative justice and community-based programs may be considered as alternatives.
Licensed paralegals in Ontario can defend provincial offences, such as Highway Traffic Act charges, and some less serious summary conviction criminal matters permitted by the Law Society. More serious criminal charges need a criminal lawyer.
Photos from Pexels: A law book beside the scales of justice on a wooden desk · Law books on a library shelf.
This article is general information for people in Ontario, not legal advice. Rules, forms and deadlines change, and every situation is different. Check the current rule or speak to a licensed legal professional before you act.
Not sure where you stand? A licensed paralegal can look at your documents and tell you your options.
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