Context

In 1995, Jamie Tanis Gladue, a 19-year-old Cree woman, stabbed and killed her common-law husband, Reuben Beaver, in Nanaimo, British Columbia. Gladue was intoxicated — her blood-alcohol level was approximately double the legal limit for operating a motor vehicle in the province — and had suspected her husband of infidelity at a party earlier in the evening. Beaver confirmed his infidelity and insulted Gladue during an argument upon returning to their townhouse. Gladue fatally stabbed Beaver in the chest after chasing him from the home with a knife.

Gladue was charged with second-degree murder but pleaded guilty to manslaughter. The trial judge heard that she had demonstrated remorse, and that while on bail she had attended counselling for substance abuse and completed Grade 10. Since she was not living on a reserve at the time of the murder, the judge ruled that section 718.2 (e) of the Criminal Code did not apply in her case. This section states that a court must consider

all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

The judge sentenced Gladue to three years in prison.

Supreme Court of Canada Ruling

Gladue appealed the sentencing decision to the British Columbia Court of Appeal, which upheld the original sentence as adequate but felt it necessary to clarify section 718.2 (e) of the Criminal Code as interpreted by the trial judge.

The Supreme Court decision explained that the intent of the Criminal Code provision, introduced in Parliament in 1994, is to alleviate the higher rate of incarceration for Indigenous offenders and to implement restorative justice — an approach that views crime as harm done to people and that seeks to rehabilitate offenders through reconciliation with victims and the community.

Instead of incarceration, a judge may recommend restorative justice practices, which must be agreed to by the offender and be based in their community beliefs. Such restorative justice practices may involve the use of a healing circle, where community members, the accused and the victim — should they wish to participate — discuss and implement methods to redress the actions of the offender.

The resulting approach may help to heal historic injustices, such as residential schools and economic dislocation, that have had societal repercussions (see Social Conditions of Indigenous Peoples and Economic Conditions of Indigenous Peoples.) Therefore, as the court explained, such sentencing is by its nature remedial (i.e., corrective.)

The court also noted that such restorative justice practices do not constitute a rejection of Criminal Code sentencing methods, and that Indigenous communities may themselves choose appropriate actions (removing the offender from the community, for example) where deemed appropriate.

The Supreme Court was clear in its ruling that judges may not, as in Gladue’s case, excuse an Indigenous offender from consideration based on residence. A judge must consider an Indigenous community in a broad sense, including urban or more widely spread communities and networks of support.

Ultimately, the court upheld Jamie Gladue’s sentence of three-years imprisonment and noted that she had received parole after six months under controlled-release provisions.

Gladue and the Ipeelee Case

In 2012, the Supreme Court reaffirmed and expanded on the principles laid out in the Gladue ruling in the case of R. v. Ipeelee. Indigenous appellants Manasie Ipeelee and Frank Ralph Ladue had breached long-term supervision orders (LTSO), and their case consequently centered on the determination of a just sentence for their crimes. The Supreme Court stated that

the sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.

Gladue Reports and Rights

The Gladue case led to the development of “Gladue reports,” which are personal histories prepared by or on behalf of offenders that outline mitigating factors for judges to consider in sentencing; and “Gladue rights,” which entitle an offender to such considerations. All persons who self-identify as Indigenous, including First Nations, Métis and Inuit, have Gladue rights and may prepare a Gladue report for consideration during sentencing. Such a report might outline how a particular offender has been marginalized or otherwise affected as a result of their upbringing.

The Gladue case also helped to establish “Gladue courts,” which are legal systems that are tailored to Indigenous peoples. Gladue court judges, for example, specialize in matters concerning Indigenous peoples.

Not all Indigenous offenders benefit from alternative sentencing decisions based on Gladue rights, as their application is at the discretion of the judge. Therefore, alternative sentencing is not automatic, and sentences for serious crimes are more likely to be the same as for non-Indigenous offenders.

While Gladue reports are now standard in Ontario, Alberta, British Columbia, Manitoba and Nova Scotia, other provinces lag behind. In 2014, judicial commentators noted that Gladue reports were virtually non-existent in Saskatchewan, and called on the judicial community to adopt the practice. However, a Saskatchewan judge responded that while the reports are not often prepared, the relevant details are made available, and judges do often apply restorative justice principles in cases of Indigenous offenders.