Commentary on R v. Gladue

Jonathan Rudin, LL.B., LL.M.

Program Director

Aboriginal Legal Services of Toronto

416.408.3967 ext. 26

May 21, 1999

On April 23, 1999, the Supreme Court of Canada (referred to as "the Court" throughout this note) released its decision in R v. Gladue - a decision that could have far-reaching implications for the way in which Aboriginal offenders are sentenced by the courts. At the same time, the decision presents real challenges for defence counsel and Aboriginal justice service providers in terms of the work that they must do in order to make the decision meaningful for their clients. The case raises many issues, both theoretical and practical. In this brief note, I will concentrate on the some of the significant aspects of the decision as they relate specifically to the sentencing of Aboriginal offenders.(1)


The decision deals with the interpretation of s. 718.2 (e) of the Criminal Code of Canada. The section, which was part of a comprehensive series of amendments made in 1996 to the sentencing law in Canada, states:

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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

The Court states that the 1996 amendments represent a change in the way judges should approach the sentencing process (para. 33). The first part of s. 718.2 (e) directs judges to look at alternatives to jail for all offenders. In doing so, the judge will look at the circumstances of the particular offender before the court as well as the circumstances surrounding the offence with which the person is charged. The Court notes that Canada sentences more people to jail per capita than all but one or two other countries in the Western world. In making this observation, the Court is clearly indicating its concern with this trend (para 52).

The Court's Findings Regarding Aboriginal People and the Criminal Justice System

With respect to the over-incarceration of Aboriginal people, the Court states:

If overreliance upon incarceration is a problem with the general population, it is of much greater concern in the sentencing of aboriginal Canadians. (para. 58)

The Court then goes to on to restate its finding in R v. Williams that the discrimination faced by Aboriginal people in Canada extends to the legal realm:

[t]here is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system. (para. 61).

The Court goes further than it did in Williams, however, by endorsing conclusions reached by the Aboriginal Justice Inquiry of Manitoba and the Royal Commission on Aboriginal Peoples. In particular, the Court accepts the first conclusion of the Royal Commission's report on criminal law - "Bridging the Cultural Divide" that:

The Canadian criminal justice system has failed the Aboriginal peoples of Canada -- First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural -- in all territorial and governmental jurisdictions. The principal reason for this crushing failure is 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. (para. 62)

The Court also makes this very significant finding with regard to Aboriginal people and the prison system:

... as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be "rehabilitated" thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions. (para. 68)

After reviewing many of the studies on Aboriginal over-incarceration, the Court reaches the following important conclusion:

These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree. The provision may properly be seen as Parliament's direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process. (para 64)

What Is the Meaning of S. 718.2 (e)

Given these findings, what distinguishes the circumstances of Aboriginal offenders from the circumstances of all other offenders and what impact do these distinctions have in the sentencing process?

The Court identifies two unique circumstances of Aboriginal offenders:

1) the systemic factors which often play a part in bringing the specific offender before the courts; and

2) the types of sentencing approaches that might be appropriate to the offender because of his or her Aboriginal heritage (para. 66).

While the Court notes that many offenders have suffered difficult social circumstances, in the case of Aboriginal offenders these circumstances are often the result of direct and overt discrimination towards Aboriginal people in general. Given the experience of such discrimination, the Court concludes that a judge should be less likely to assume that incarceration - itself the source of discrimination towards Aboriginal people - would be able to assist Aboriginal offenders in changing their criminal behaviour, and that in fact, incarceration might result in greater hardship to Aboriginal offenders than to non-Aboriginal offenders (para 68).

As a practical matter, the Court does not require each Aboriginal offender to provide the sentencing judge with a history of the discrimination faced by Aboriginal people in Canada. Rather, the Court states that judges must take judicial notice of these factors (para 83). The term "judicial notice" means that judges can rely upon the findings of other commissions and the Supreme Court, as well as their own knowledge of the general history of Aboriginal peoples with regard to the way in which they have been treated in Canada. The Court makes it clear, however, that judicial notice in this case does not allow the judge to reach any conclusion with regard to the treatment of Aboriginal people, rather the judge must recognize that overt discriminatory acts were not only directed at Aboriginal people in the past, but that discrimination, both systemic and direct, continues to exist in Canada today.

It is important to note that the Court states that the provisions of s. 718.2. (e) apply to all Aboriginal offenders. It does not matter if the person is a status or non-status Indian, Metis or Inuit person - the section applies equally to all (para 90). Similarly, it does not matter if the person lives in an urban area and/or has been totally estranged from his or her culture - the section still must be applied (para 91). The provisions of the section must be applied in all cases where the offender identifies him or herself as an Aboriginal person and provides some evidence as to how their Aboriginal identity has had a part to play in understanding why they are before the court. I would suggest that the very fact of estrangement from the Aboriginal community is in and of itself sufficient to allow the sentencing judge to immediately embark upon a s. 718.2 (e) inquiry.

The second circumstance that the Court addresses relates to sentencing practices and processes particularly relevant to Aboriginal offenders. The Court broadly terms these approaches "restorative justice" approaches. It describes restorative justice as:

an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime. (para 71).

The Court makes it clear that a sentence that is intended to address restorative justice concerns should not be seen as necessarily 'lighter' than a sentence of imprisonment. The Court also cites articles that suggest that in some circumstances, a restorative justice sentence might impose greater burdens on an offender than jail, particularly if there are probation terms incorporated into the sentence (para. 72).

Talk of restorative justice approaches to sentencing usually suggests activities such as sentencing circles or specific community run alternative justice programs. The Court is careful to point out that while these types of initiatives certainly fall within the restorative justice concept, sentences can be crafted by a judge alone that meet these goals as well.

The importance of this point is that there are few alternative justice programs actually functioning in Canada - particularly in urban areas - and sentencing circles have not become common fixtures in the courtrooms of Canada. If the application of s. 718.2 (e) was restricted to only those types of initiatives, then the promise of the section would ring hollow for the vast majority of Aboriginal offenders. Keeping this fact in mind, the Court provides a broader view of how restorative justice concepts could be accommodated in sentencing:

Sentencing judges should not conclude that the absence of alternatives specific to an aboriginal community eliminates their ability to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved. Rather, the point is that one of the unique circumstances of aboriginal offenders is that community-based sanctions coincide with the aboriginal concept of sentencing and the needs of aboriginal people and communities. It is often the case that neither aboriginal offenders nor their communities are well served by incarcerating offenders, particularly for less serious or non-violent offences. Where these sanctions are reasonable in the circumstances, they should be implemented. In all instances, it is appropriate to attempt to craft the sentencing process and the sanctions imposed in accordance with the aboriginal perspective. (para 74)

In this sense, a community-based sanction is one that addresses the needs of the offender, and perhaps the victim and broader community as well. It does not require formalized acceptance by the local Aboriginal community however it is defined - it might not even involve the Aboriginal community at all. For example, a sentence might require attendance at a treatment program or participation in counselling. These programs might be delivered by Aboriginal agencies and in general it would be preferable if they were; however, this should not be a requirement for a s. 718.2 (e) sentence. Since the provisions of the section apply to all Aboriginal offenders, it would not be right to deny an offender access to the section because there is no Aboriginal community of any size where he or she is being sentenced or because the Aboriginal community does not possess the services the offender needs.

The Court makes it clear that the fact that an offender is an Aboriginal person will not automatically result in a non-prison sentence. The Court also indicates that the more violent the offence, the more likely that the sentence will involve imprisonment, although the Court indicates that perhaps the term of imprisonment might be less in the case of an Aboriginal offender as opposed to a non-Aboriginal offender (para. 79).

The Challenges in Making the Section Work in Practice

The Court suggests that in order to craft a 718.2 (e) sentence a judge should expect to receive assistance from defence counsel and from a pre-sentence report (para 93 - point 7). At the same time, however, the Court makes it clear that even unrepresented Aboriginal offenders are entitled to rely upon s. 718.2 (e). A number of practical questions arise:

These types of situations are likely to occur. Indeed, they might well be the norm. The Court assumes that pre-sentence reports will play a very significant role in these types of sentencings. For the pre-sentence report to have an impact however, the person preparing the report must have sufficient knowledge and understanding of Aboriginal people to obtain the necessary background information from the offender and his or her family, and also sufficient knowledge of community resources - particularly Aboriginal-specific resources - to make intelligent suggestions to the judge. While there may well be some people employed by provincial probation services capable of performing this role, it should not be assumed that they are present in every jurisdiction. The systemic and direct discrimination faced by Aboriginal people in the criminal justice system does not magically stop at the probation office.

Where will judges, particularly in the absence of diligent defence counsel, find the resources necessary to allow them to embark upon a realistic s. 718.2 (e) inquiry? It is likely that increased reliance will be placed upon Aboriginal Courtworkers and Aboriginal alternative justice program personnel - where such programs are in place. These individuals will likely find themselves providing advice and submissions to the court, either through defence counsel or directly to the court, and also preparing pre-sentence reports, either instead of established sources or in addition to other reports. This raises a serious question as to whether the resources currently exist for such endeavours to be undertaken by Courtworkers and justice program personnel. If people and programs are already taxed to the limit, how will the additional work be provided? As well, the question must be asked if current program staff have the training and expertise to provide the information and advice that they will likely be called on for? And what of jurisdictions with Aboriginal offenders but no Aboriginal justice resources?


Gladue provides an opportunity to take some meaningful steps to counter the increasing reliance on incarceration as the response of choice of the courts to the sentencing of Aboriginal offenders. In order to make the promise real however, sentencing judges must be presented with realistic assessments of offenders and of non-jail community options. This need provides a challenge to the Aboriginal Courtworker program and to Aboriginal alternative justice programs. If these programs are not to be found wanting, serious consideration must be given to both training and resource needs. It would be unrealistic to expect that the same number of people currently delivering services can suddenly deliver significantly increased and enhanced services at a moment's notice. The opportunity is here now to start to make real changes to what the Court describes as a "crisis" in the criminal justice system in Canada. These changes however will require a concerted effort from a variety of sources to ensure that the promise of change is not lost.

1. The paragraph numbers used here refer to the numbered paragraphs in the Court's decision in R v. Gladue. The word "Aboriginal" is capitalized whenever it is used unless I am directly quoting a source that does not capitalize the word.