Sentencing Indigenous Offenders: From Gladue to the Present and Beyond

• Author: Kent Roach and Jonathan Rudin
• Pages: 226-249

226

CHAPTER TWELVE

Sentencing Indigenous Ofenders:

From Gladue to the Present and

Beyond

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.