Robson Crim Legal Blog

As discussed in the first Blawg in this series, the 1999 Supreme Court of Canada (SCC) Gladue decision was quickly implemented in Manitoba court cases and discussed in the Manitoba media — and its presence in both forums revealed tensions that would remain present in the twenty-first century so. This second Blawg is an attempt to further trace this history and tensions to today.

On April 30, Premier Doug Ford went on a surreal and revealing “rant” about judges, saying that he’d pay “bleeding heart” judges to “retire earlier.” He criticized court decisions and proceeded to say, “[Y]ou can’t have judges constantly overruling the government,” arguing that because elected officials pass laws, unelected judges should have no authority to review those laws.

Many Canadians know — or at least think they know — about the Supreme Court of Canada (SCC)’s 1999 decision in R v Gladue. Recently, for example, when I told a man at my gym that I plan to article in criminal law, he told me to make sure I knew about Gladue because, in his words, “it’s a case that says when an Indigenous person commits a crime, we take the sentence that you would give a white person for the same crime and cut it in half.”

Gladue has become far more than simply an SCC decision with important application to future legal matters (as is, for example, Vavilov in relation to administrative law). More than most cases, Gladue and the legislation that it interprets have had political and social implications in the quarter century since it was made.

In early 2023, an Ontario police officer lost their life at the hands of an individual who had been granted judicial release, otherwise known as bail, under strict conditions. Justice Arrell, who was presiding over the case, acknowledged the legitimate concerns surrounding the individual’s violent criminal history, yet stated he was obligated to place significant weight on his Indigenous background which ultimately led to the release. This story fueled public discontent.