AuthorDenis-Boileau, Marie-Andree

What is important to recognize is that, for many if not most aboriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communities. R v Gladue, [1999] 1 SCR 688 at para 73 All Canadians need to understand the difference between Indigenous law and Aboriginal law. Long before Europeans came to North America, Indigenous peoples, like all societies, had political systems and laws that governed behaviour within their own communities and their relationships with other nations. Indigenous law is diverse; each Indigenous nation across the country has its own laws and legal traditions. Aboriginal law is the body of law that exists within the Canadian legal system. Final Report of the Truth and Reconciliation Commission of Canada, vol 6, p 45 TABLE OF CONTENTS Introduction 539 I. Putting the pieces in places: case Law Elements A. First Element: Community's Perspective, Needs, and Alternatives to Incarceration 546 B. Second element: "Aboriginal Perspective" and Indigenous law 557 1. Preliminary Notes on Indigenous Law 558 2. Getting Information on Indigenous Law as Legal Actors 569 3. The Relationship Between Restorative Justice and Indigenous Law 585 4. Using Indigenous Law in a Canadian Criminal Law sentencing Decision 591 5. Risks Associated with the Use of Indigenous Law by a Canadian Judge 601 C. Third Element: Culturally Sensitive, Appropriate, and Responsive Sentences Addressing the Underlying Cause of Criminal Conduct 609 II. Power Imbalance and Gender Inequalities 611 III. Second Set of Circumstances and the Effectiveness of the Sentence 619 Conclusion: Looking Forward 622 INTRODUCTION

In 1996, the Parliament of Canada enacted subsection 718.2(e) of the Criminal Code, a principle of sentencing that is a remedial provision aimed at alleviating Indigenous over-incarceration. (1) This section was discussed in detail by the Supreme Court of Canada (SCC) for the first time in 1999 in R v Gladue. (2) The Gladue case laid out a method of analysis which sentencing judges must use in determining a fit sentence for Indigenous people. (3) It called judges to pay particular attention to the circumstances of Indigenous people before them because those circumstances are unique and different from those of non-Indigenous people. (4) In order to do so, the Court stated that when sentencing an Indigenous person, a judge must consider:

(1) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

(2) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. (5)

These will be referred throughout this article as the "first set of circumstances" and the "second set of circumstances" respectively. (6)

This article engages in depth with the second set of circumstances. In its first and core part, it starts by laying out and detailing each of the three elements that we found to be included in that second set of circumstances, based on an analysis of case law: (1) the community's perspectives, needs, and alternatives to incarceration (7); (2) the Aboriginal Perspective, which was interpreted as including the "laws, practices, customs and traditions of the group" (8); and (3) culturally sensitive, appropriate, and responsive sentences addressing the "underlying cause of the criminal conduct" (9). A substantive part of this paper aims to lay out a clear and practical roadmap to support judges and lawyers in considering Indigenous law (as part of the Aboriginal Perspective).

In its second part, it discusses some considerations to have in mind regarding power imbalance and gender inequality.

In its third part, it reminds how, according to the Supreme Court of Canada, considering the second set of circumstances--and thus considering "sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection" (10)--is about having sentences that are effective and that achieve their goals of preventing crimes and making societies safer.

This paper then concludes by drawing some examples from the current state of law in Canada and its history to look forward to better relations between Indigenous people and the Canadian Criminal Legal Systems.


The content of this paper was first developed for Legal Aid BC's Best Practices Guide for Writing Gladue Reports and Understanding Gladue Principles, (11) with the intent to support Gladue writers in providing more information to courts with regard to the second set of circumstances, but also support anyone who wishes to better understand the Gladue principles. The Guide also gives specifics on how this second set of circumstances can be considered at the bail stage and many other detailed information on Gladue reports and principles.

We included in-depth information on the second set of circumstances as there was criticism that it was absent from Gladue reports, (12) and also since it has been shown to be absent from Gladue analysis in case law. In 2018, I copublished with now Dean Marie-Eve Sylvestre an article named Ipeelee and the Duty to Resist, (13) In this article, we took a critical look at subsection 718.2(e) of the Criminal Code and how courts have interpreted it after the Ipeelee case from a legal pluralism standpoint. We made a thorough analysis of 635 decisions rendered after Ipeelee by trial and appellate courts between 2012 and 2015. Despite the clear message sent by the SCC in Ipeelee stating that it is mandatory for legal actors to follow the analysis first laid out in the Gladue case, we found that the majority of legal actors were still not following the methods, or applying the principles, almost 20 years after the Gladue case.

In the analysis we conducted and published in the Ipeelee and the Duty to Resist paper, we found that only 20% of the cases (127 out of 635) which were analyzed made a satisfactory analysis (14) of the first set of circumstances.

The second set of circumstances was even less considered in the case law: judges tried to consider it in only 7 decisions out of the 635 sampled. (15) This part of the Gladue analysis was practically non-existent in the case law.

We investigated the hurdles which could explain such resistance from courts. We found that there were practical and systemic hurdles such as: the scarcity of resources to obtain Gladue reports, (16) the lack of information on appropriate circumstances and sanctions in these reports, (17)--and more importantly--the lack of resources to implement such appropriate procedures and sanctions, and the lack of resources to get information on Indigenous communities and Indigenous legal orders. (18)

We also found that there were cognitive and epistemological hurdles at play:

Cognitive and epistemological hurdles, within the meaning defined by Bachelard, also stand in the judges' way. In his work entitled La formation de l'esprit scientifique, Bachelard explains that there are several 'intellectual habits' that obstruct scientific activity and creation. Hence, the ideas used most often tend to become 'unduly valuable' and to create obstacles to their renewal. In this respect, several authors have shown the extent to which judges find it difficult to conceive of a sentence in anything other than punitive terms, and in connection with classical sentencing theories (retribution, deterrence, denunciation and rehabilitation in secure custody), which amount to what Pires calls modern penal rationality. (19) This paper intends to give legal actors practical support and tools, while considering the lack of resources they face, to take into account the second set of circumstances and overcome some of these hurdles. It intends to provide legal actors with some insights to support them in engaging intellectually with Indigenous law to conceive sentences differently and come to more efficient sentencing results.

Further, this paper fills a gap in literature, as literature specific to the second set of circumstances is almost non-existent. (20) More specifically, it can be used by practitioners as a complement to Jonathan Rudin's important work in his book Indigenous People and the Criminal Justice System: A Practitioner's Handbook. (21) This book offers an expansive view of issues relating to Indigenous peoples and the criminal justice system to provide practitioners with a deeper understanding of this area of law. The book also suggests a non-exhaustive list of resources on Indigenous law and Indigenous legal traditions. (22) However, the book doesn't provide much guidance with respect to how it ought to be incorporated into sentencing. This article provides such guidance.


    The Supreme Court of Canada stated that the second set of circumstances--the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection--is concerned with the effectiveness of the sentence. (23) Indeed, it points out that for many Indigenous people, "the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communities." (24) Citing the Royal Commission on Aboriginal People (RCAP), the court indicated that the "'crushing failure' of the Canadian criminal justice system vis-a-vis Aboriginal peoples is due to 'the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice.'" (25)


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