Sentencing Indigenous Offenders: From Gladue to the Present and Beyond

AuthorKent Roach and Jonathan Rudin
Sentencing Indigenous Ofenders:
From Gladue to the Present and
Kent Roach and Jonathan Rudin
In , Parliament passed Bill C-, which provided a signicant and
comprehensive revision of the laws on sentencing. Included in the Bill
was what became section .(e) of the Criminal Code. e section
directed judges to look for alternatives to incarceration for all oend-
ers and “with particular attention to the circumstances of Aboriginal
oenders.” e inclusion of a specic reference to Aboriginal oenders
resulted from several commissions of inquiry, studies, and government
reviews that identied the overrepresentation of Indigenous people in
prison as a problem.
In , the Supreme Court of Canada had its rst opportunity
to look at this particular provision in the landmark decision of R v
Gladue. Gladue was the Supreme Court’s rst foray into the restorative
purposes of sentencing, also added to the Criminal Code in . As
An Act to amend the Criminal Code (Sentencing) and other Acts in consequence thereof,
st Sess, th Parl (proclaimed in force  September ), SC , c  [Bill C-].
RSC , c C- [Criminal Code].
[]  SCR  [Gladue]. The authors represented or were involved with the inter-
vention of Aboriginal Legal Services in this case.
Sentencing Indigenous Offenders: From Gladue to the Present and Beyond | 227
such, it inuenced the Court’s approach to conditional sentences,
rst provided in the Criminal Code in . Gladue, combined with
the Supreme Court’s even more strongly worded rearmation of the
need for dierent information and dierent sentencing methods for
Indigenous oenders in the  R v Ipeelee decision, was a much-
needed but alas easily forgotten recognition of the multi-generational
harms that colonialism has inicted on Indigenous people and the need
to follow principles of substantive equality that avoid the injustice of
treating the most disadvantaged in the same way as the advantaged.
e substantive equality underpinnings of Gladue help explain why it
has been extended from sentencing to many other critical aspects of
the criminal justice system, including bail, aspects of the trial process,
and extradition despite the more limited wording of section .(e).
is chapter explores the impact of the Gladue decision. It begins
by looking at how the decision has been interpreted and implemented
in courts at all levels in Canada. Unlike other decisions of the Supreme
Court, Gladue lent itself to a number of judicial interpretations,
although there appears now to be some consistency in the application
of the principles arising from the case. e chapter then explores the
steps taken outside of court decisions to see how the spirit of Gladue has
taken hold. Unlike some other decisions of the Supreme Court, Gladue
was not self-executing. Although the Court expected the sentencing of
Indigenous oenders to involve a dierent process, the decision did not
spell out how that would occur. is section will look at some of the
challenges in implementing Gladue and some of the initiatives that
have been developed in this regard. Finally, the chapter examines the
successes and failures in eorts to turn the rhetoric of Gladue into real-
ity and draws some conclusions about the way forward. We will sug-
gest that, while Gladue will continue to face challenges in the future, it
remains an important foundation for both decolonizing criminal justice
and ensuring greater respect for substantive equality in the Canadian
criminal justice system.
R v Proulx, []  SCR .
[]  SCR  [Ipeelee]. Rudin represented Aboriginal Legal Services of Toronto in
this case, and Roach represented British Columbia Civil Liberties Association.

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