R v Gladue

In 1995, the federal government introduced major changes to the sentencing provisions of the Criminal Code. As part of that review, the package included amendments that responded to the over-representation of Indigenous peoples in the correctional systems of Canada. At that time, Indigenous peoples amounted to approximately 18% of the total of incarcerated individuals, but were only 3% of the total population of Canada, an over-representation of more than 5 times their total population.^[1]

The amendments included a new provision setting out general sentencing principles. The relevant provision was the new s. 718.2(1)(e):

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

...

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.^[2]

On September 16, 1995, Jamie Tanis Gladue, a young Indigenous woman, was celebrating her birthday with some friends in Nanaimo, British Columbia. She suspected that her boyfriend was having an affair with her older sister. Following a confrontation, her boyfriend repeatedly insulted Gladue, at which point she stabbed him in the chest. He died. At the time of the stabbing, Gladue had a blood alcohol level of between 155 and 165 milligrams of alcohol in 100 millilitres of blood.^[3]

Gladue was originally charged with second degree murder, but pled guilty to manslaughter, with the consent of the Crown prosecutor, on the basis that there was evidence of provocation. The main issue was the appropriate sentence to be imposed. She was sentenced to three years imprisonment.^[4]

At Gladue's sentencing hearing, the sentencing judge took into account both aggravating and mitigating factors, including the absence of any serious criminal history. However, the sentencing judge did not take into account any factors specifically relating to Gladue's Indigenous background.^[3] The sentencing judge also held that s. 718.2(e) did not apply to Indigenous people who were off-reserve. The British Columbia Court of Appeal disagreed with the sentencing judge on that point, but by a 2-1 judgment, upheld the sentence.^[4] Both the sentencing judge and the majority of the Court of Appeal held that the offence was a serious one, and that a three year sentence was appropriate in any event, even if the Indigenous background were taken into account.^[4]

The Supreme Court upheld the sentence of three years, but reviewed the factors which should be considered in the new sentencing provision, s. 718.2(e). Justices Cory and Iacobucci held that the courts below erred in taking an overly narrow approach of s. 718.2(e). The purpose of this provision is to address the historical and current problem with the severe over-representation of Indigenous people within the criminal justice system.

Gladue was not on reserve land at the time of the offence and therefore the sentencing judge held that s. 718.2(e) did not apply. The Supreme Court held that was a mistake by the sentencing court. The Court held that s. 718.2(e) applies to "all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area".^[3]

Following the Supreme Court decision, sentencing courts began requiring pre-sentencing reports for aboriginal offenders, to specifically report on the factors which the Supreme Court held were required by s. 718.2(e), which Parliament had enacted in an attempt to lower the severe over-representation of Indigenous people within the Canadian criminal justice system. These reports became known as Gladue reports. Some of the items included in Gladue reports include the tragic history, cultural oppression, poverty, abuse suffered and residential school attendance of the Indigenous offender.^[5]

• Gladue court
• Gladue report
• Healing lodge
• Indigenous Peoples and the Canadian Criminal Justice System
• List of Supreme Court of Canada cases (Lamer Court)
• R v Ipeelee
• R v Wells