Reforming Gladue: A Call for Judicial Accountability in Sentencing Indigenous Offenders

By Adeela Mazrui

The legacy of the Supreme Court of Canada’s 1999 decision in R v Gladue remains part of Canadian law today. The “Gladue principles” arise from section 718.2(e) of the Criminal Code, which was enacted to address the overrepresentation of Indigenous people in Canadian prisons.

For generations, the Canadian government attempted to forcibly assimilate Indigenous peoples through colonial policies, including the residential school system. The consequences of those policies continue to be reflected in modern Canadian institutions, including the criminal justice system.

Despite the adoption of section 718.2(e), Indigenous people remain drastically overrepresented in Canadian prisons. This demonstrates the need for meaningful reform. The criminal justice system must uphold the principles of justice and fairness, as well as the equality rights guaranteed by section 15(1) of the Canadian Charter of Rights and Freedoms.

What Is Section 718.2(e)?

Section 718.2(e) came into effect in 1996 as concern about the overrepresentation of Indigenous people in Canadian prisons intensified. It directs sentencing judges to consider:

“All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community … with particular attention to the circumstances of Aboriginal offenders.”

Although the provision became law in 1996, it was initially unclear how judges were expected to apply it. That question reached the Supreme Court of Canada in R v Gladue. Jamie Tanis Gladue appealed her sentence on the basis that the trial judge had not properly considered section 718.2(e).

The Supreme Court explained that, when sentencing an Indigenous offender, a judge must consider:

1. The unique systemic or background factors that may have contributed to bringing the particular Indigenous offender before the court; and

2. The types of sentencing procedures and sanctions that may be appropriate because of the offender’s Indigenous heritage or connection.

These requirements became known as the Gladue principles.

Understanding Background and Systemic Factors

Background factors include Indigenous peoples’ experiences of colonialism, displacement, family and community disruption, and the continuing effects of residential schools. These experiences can contribute to unemployment, limited opportunities, poverty, substance use, and community fragmentation.

Systemic factors arise from the social, political, and economic structures that place Indigenous people at a disadvantage when they come into contact with the law.

The statistics demonstrate the seriousness of this inequality. Although Indigenous people make up approximately five per cent of Canada’s population, they account for roughly one-third of admissions to federal custody and approximately 30 per cent of admissions to provincial and territorial correctional services.

The disparity is even greater for Indigenous women. Although Indigenous women represent only a small percentage of Canada’s female population, they account for approximately 40 per cent of women admitted to federal custody.

Section 718.2(e) was intended to help reduce this overrepresentation by requiring judges to consider alternatives to incarceration and to give greater attention to restorative justice.

The Role of Restorative Justice

Restorative justice focuses on rehabilitation, repairing the harm done to victims and communities, and encouraging offenders to accept responsibility. By contrast, traditional sentencing principles such as denunciation and deterrence focus primarily on condemning wrongful conduct and discouraging similar conduct in the future.

Restorative justice draws upon conflict-resolution practices used by many Indigenous communities. These approaches frequently emphasize community involvement, inclusion, respect, and holistic solutions.

One example is the use of healing circles. In a healing circle, an offender participates in a facilitated conversation intended to identify the harm caused and develop an appropriate course of action to repair it. Healing circles and other restorative justice measures have been adopted within the Canadian justice system as alternatives to an overreliance on incarceration.

The Clarification Provided by R v Ipeelee

In 2012, the Supreme Court of Canada revisited the Gladue principles in R v Ipeelee. The Court confirmed that judges have a statutory obligation to apply Gladue when sentencing every Indigenous offender, including those convicted of serious or violent offences.

A passage from Gladue had stated that serious and violent offences would often result in imprisonment for Indigenous and non-Indigenous offenders alike. Some judges incorrectly interpreted this as meaning that Gladue did not apply to serious offences.

Ipeelee clarified that this interpretation was wrong. Judges must consider the Gladue principles in every case involving an Indigenous offender. The seriousness of the offence may affect the ultimate sentence, but it does not remove the judge’s obligation to conduct the required analysis.

The need for this clarification points to a broader problem: continuing judicial resistance to, or misunderstanding of, section 718.2(e).

Has Gladue Achieved Its Purpose?

The available evidence suggests that the Gladue principles have not achieved their intended result. In the years since Gladue was decided, Indigenous overrepresentation in Canadian prisons has increased substantially.

This does not mean that the principles themselves are misguided. Rather, it demonstrates that simply creating a legal rule is not enough. The rule must be consistently and meaningfully applied, and judges must have access to appropriate community-based sentencing alternatives.

Gladue requires judges to recognize the systemic and background factors affecting Indigenous offenders and to consider how those factors may reduce an offender’s degree of moral blameworthiness. Judges must also give meaningful priority to restorative approaches.

As the Supreme Court explained in Ipeelee, section 718.2(e) is remedial. It is intended to address the serious problem of Indigenous overrepresentation in prisons and encourage judges to adopt restorative approaches to sentencing.

Indigenous people have been placed at a disadvantage by generations of government action. The Gladue principles are intended to respond to that disadvantage. Applying precisely the same analysis to Indigenous and non-Indigenous offenders may produce unequal results when their historical and social circumstances are profoundly different.

Section 718.2(e) should therefore be understood as part of Canada’s commitment to reconciliation. The government cannot describe the provision as remedial without ensuring that every part of the proposed remedy is properly implemented.

The Problem of Inconsistent Application

Section 718.2(e) does not expressly require judges to explain how they applied the Gladue principles in reaching a sentence. This lack of mandatory guidance contributes to inconsistent application and, ultimately, the continued overincarceration of Indigenous people.

A study of 635 judicial decisions released after Ipeelee found that approximately one-third did not mention background or systemic factors at all. In approximately 15 per cent of the decisions, courts dismissed or downplayed Gladue because there was no clear causal connection between the offender’s background and the offence.

In other cases, courts refused to give significant weight to Gladue because the offender was said to have only a “tenuous” connection to an Indigenous community. This reasoning suggests that an offender must prove that they have personally experienced a sufficient degree of colonial harm before their circumstances will be treated as relevant.

These patterns are troubling. They minimize the continuing effects of colonialism and misunderstand the purpose of the Gladue analysis. Without a requirement for judges to explain their reasoning, incorrect interpretations can result in unjust sentences.

Restorative Justice Requires Resources

The limited availability of well-funded restorative justice programs also restricts the effective application of Gladue. Judges may hesitate to order community-based or restorative sentences when appropriate programs are unavailable or inadequately resourced.

Some provincial policies also restrict access to restorative justice for certain offences. This reflects Canada’s continued uncertainty about when restorative justice is appropriate.

If restorative justice is to serve as a meaningful alternative to incarceration, governments must provide sustained funding, effective training, and accessible programs. A legal direction to consider alternatives is of little practical value if those alternatives do not exist in the offender’s community.

A Proposal for Reform

Section 718.2(e) should be amended to require judges to explain, with sufficient reasons, how they applied the Gladue principles when sentencing an Indigenous offender.

Where a sentencing judge fails to conduct the required analysis, the sentence should be subject to being set aside on appeal. This reform would promote judicial accountability and help ensure that Indigenous offenders are treated fairly and consistently.

A statutory requirement for written or oral reasons would also make it easier for appellate courts, lawyers, researchers, and the public to determine whether Gladue has been properly applied.

This reform must be accompanied by sustained and increased federal funding for restorative justice programs. Judicial accountability and community resources are both necessary if section 718.2(e) is to accomplish its purpose.

Reconciliation Requires More Than Words

Reconciliation is one of Canada’s fundamental commitments. Equality is also protected by section 15(1) of the Charter, which guarantees equal protection and equal benefit of the law.

The government therefore has a responsibility to address the lack of equal protection experienced by Indigenous people within the criminal justice system.

Requiring judges to explain how they have applied Gladue would reinforce their existing duty under section 718.2(e), reduce disparities in sentencing, and promote accountability. Combined with properly funded restorative justice programs, this reform could help move Canada closer to the provision’s original goal: reducing the devastating overrepresentation of Indigenous people in its prisons.

Canada has already acknowledged the problem. The next step is ensuring that the law designed to address it is applied meaningfully, consistently, and transparently.

Selected Sources

• R v Gladue, [1999] 1 SCR 688.

• R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433.

• Criminal Code, RSC 1985, c C-46, s 718.2(e).

• Canadian Charter of Rights and Freedoms, s 15.

• Department of Justice Canada, “Overrepresentation of Indigenous People in the Canadian Criminal Justice System: Causes and Responses.”

• Department of Justice Canada, “The Overrepresentation of Indigenous People in the Criminal Justice System.”

• Marie-Eve Sylvestre and Marie-Andrée Denis-Boileau, “Ipeelee and the Duty to Resist.”