Enatt Daudi

Note: This Blawg post and series will refer to Indigenous people as such except when directly quoting from contemporary material, which use outdated terms including “Indian” and outdated terms of art like "aboriginal".

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.” His understanding of the case was incorrect — but the fact that he had that specific misunderstanding, and that Gladue was the first thing that came to his mind when he was in a conversation about criminal law, is telling. Certainly, his contempt for this allegedly lax sentencing practice fits within a broader sense that Canadians have that sentencing is too lenient — in one study published by the Canadian government, 79% of Canadians found sentencing too lenient while only 2% found it too strict.[i] The authors noted in relation to this survey that “in addition to harsher sentencing, several suggest ensuring criminals serve the entire sentence given. A ‘crime is crime’ attitude was commonly expressed, suggesting that factors such as personal circumstance, race, and religion should not be used as excuses for leniency. ‘Everyone in Canada has to follow the rules, no exception (race, religion or ethnicity)’.”[ii]

The interaction with the man at my gym sticks with me today because it speaks to the power that Gladue has not only in a direct sense to Indigenous offenders but also indirectly to many Canadians’ perceptions of, and confidence in, our criminal justice system. And given this power, it is especially important that Gladue is understood both correctly and thoroughly, if only to counterbalance the narrative that led to the man’s misunderstanding. If not, that false narrative will impact our politics, which will in turn impact our criminal justice system itself. This is not to say that we should necessarily maintain the status quo for sentencing guidelines, or that criticism of Gladue will inevitably melt away when Canadians gain a clearer understanding of the case — but good policy debate can only take place when the problem at hand is itself understood.

Importantly, 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. And that history and impact since 1999 have shaped that man at my gym’s perception of Gladue, and the criminal justice system more broadly, as much if not more than the decision itself. If we are to understand Gladue, then, it is not enough to explain s. 718.2(e) of the Criminal Code and the SCC’s application of this legislation to Jamie Tanis Gladue — that is only the start of a story that is still playing out today.

This Blawg and the series that will follow is an attempt to trace some outlines of this story, with a focus on Gladue’s impact on Manitoba’s criminal justice system and society specifically. It will do so in three sections: first, by tracing its impact on both Manitoba caselaw and political discourse in the months following its release in 1999 and the decades that have followed. Second, by highlighting recent developments and applications of Indigenous sentencing considerations in Manitoba, with special attention to the 2021 R v Harper decision. And third, by looking to the future by examining ongoing critiques of Gladue from three groups: the Canadian public, legal scholars, and Indigenous community members.

This Crim Blawg series is being written anyone interested in this landmark case and its subsequent story. But it is also being written for two people in particular: the man at my gym, if I ever see him again — and for myself, who couldn’t respond well to him at the time. I hope that it can help everyone who reads it discuss Gladue better than the two of us did.

R v Gladue — a brief overview

General overviews of Gladue can be found elsewhere — for example, the Canadian Encyclopedia has a succinct summary that can be read here. That said, a few paragraphs provided here can help provide some context for the discussions that will follow.

Since the 1960s, Canadian criminal justice members and politicians — including Conservatives — had advocated for a more liberal approach to sentencing that encouraged alternatives to incarceration, or reduced sentences, when possible. At the same time, reports that resulted from projects like the Aboriginal Justice Inquiry of Manitoba in the 1990s highlighted the challenges and discrimination faced by Indigenous peoples in the criminal justice system specifically.[iii] In 1994, Liberal Federal Justice Minister Allan Rock introduced s. 718.2(e) of the Criminal Code, which read that: “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.”[iv] The SCC’s decision in R v Gladue, in 1999, was an explicit effort to apply s. 718.2(e) into caselaw. It centred on an Indigenous woman, Jamie Gladue, who had killed her husband while heavily intoxicated because she suspected him of cheating on her. After considering the details of the crime itself as well as Gladue’s background, the SCC upheld the lower court’s sentence of incarceration for three years.[v]

The principles articulated in the Gladue decision are difficult to paraphrase or summarize, and any one excerpt taken out of context can only give a partial — and possibly misleading — sense of the SCC’s interpretation of s. 718.2(e). For anyone who wants to understand the decision, there is really no adequate alternative to reading it directly and entirely. That said, I submit that the most crucial paragraph for understanding the distinction (or lack thereof) that the SCC seeks to make between sentencing considerations for Indigenous and non-Indigenous offenders is as follows:

The phrase [“with particular attention to the circumstances of aboriginal offenders”] cannot be an instruction for judges to pay ‘more’ attention when sentencing aboriginal offenders… Neither can the phrase be merely an instruction to a sentencing judge to consider the circumstances of aboriginal offenders just as she or he would consider the circumstances of any other offender… Rather, the logical meaning to be derived from the special reference to the circumstances of aboriginal offenders, juxtaposed as it is against a general direction to consider ‘the circumstances’ for all offenders, is that sentencing judges should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique, and different from those of non-aboriginal offenders… The wording of s. 718.2(e) on its face, them, requires both consideration of alternatives to the use of imprisonment as a penal sanction generally, which amounts to a restraint in the resort to imprisonment as a sentence, and recognition by the sentencing judge of the unique circumstances of aboriginal offenders.[vi]

Judges and lawyers have spent the quarter-century since attempting to further implement this direction.

Gladue in Manitoba

The Gladue decision was received and commented upon quickly by and Manitoba’s paper of record and Manitoba’s court system. On April 24, shortly after the decision was release, the Winnipeg Free Press made note of it mainly for highlighting overincarcreation generally — the headline read “High court says Canada has too many prisoners” — and only references its focus on Indigenous offenders as a lesser point (describing Gladue as “a ruling that also characterized as a crisis the over-representation of aboriginals in Canadian jails”).[vii]

However, eight days later, the Free Press published an editorial on the decision, titled “Natives and Canadian justice” that discussed the case but also responses to it. While acknowledging that some Canadians saw the decision as “a kind of judicial apartheid in Canada, in which native offenders against the law would be treated by a standard different from that used to push other Canadians” (to which the editorial commented “[t]here is some legitimacy to that response”), the editorial ultimately concluded that the Gladue decision was worthwhile:

But if we accept the argument — and we should accept it — that prison is an instrument of last respot that should be reserved for those who have committed the most serious offences and those from whom society needs long-term protection, then there is no contradiction, no ‘two-tier’ system of justice in the Supreme Court’s decision. We already expect the courts to take into consideration the circumstances of both the crime and the criminal. To be aware of the particular circumstances of natives is not favoritism; it is fairness.[viii]

However, the last word on the subject was published the following day by Free Press columnist Fred Cleverley and took a decidedly more skeptical tone. While Cleverley positioned himself as a supporter of liberalizing sentencing practices broadly, he took issue with Parliament and the SCC’s application to Indigenous peoples specifically: “The Supreme Court judgment makes it clear that, as it interprets the law, Indians now have less chance of being imprisoned, or will likely receive shorter sentences, than non-aboriginals who commit the same crimes.” It also took issue with one aspect of the SCC’s reasoning in Gladue specifically: the claim that Indigenous peoples were overrepresented in the criminal justice system because the percentage of Indigenous people in the system was disproportionate to the percentage of Indigenous people relative to the Canadian population more broadly. “Ninety-eight per cent of Canadians in jail are men, only two percent women,” he countered. “No one seriously argues that this is a result of systemic sexism in sentencing. The fact is that more men are in jail because more men than women commit crimes. Aboriginals commit more crimes than non-aboriginals and, as a result, there are more of them in jail.” He concluded that: “[w]e all may be equal before the law, but not when it comes to consequences for breaking it.”[ix]

Those two editorials appear to be the last time that the Gladue decision was referenced directly in a Manitoba newspaper before 2005, when the Brandon Sun published an op-ed in a similar vein to Cleverley’s (which posited, for example, “[d]id [Gladue’s] victim’s life in this case mean less than a non-native life?”[x]) But the battlelines between the supporters and skeptics of s. 718.2(s) and the Gladue decision had been drawn — and, remarkably, seem to have remained fairly stable since. Arguments made for and against them have become so entrenched that neither the Free Press’s May 2nd editorial and May 3rd op-ed would not seem particularly out of place in the same paper today, aside from the terms used in both to describe Indigenous people.

References to Gladue in Manitoban case law were at first indirect. Five cases cited it in 1999, but most did not do so as a precedent in regard to its direction on sentencing for Indigenous offenders specifically. The first case that did so only used it as an example of how the court had moved away from a “strict literal” approach to legislative interpretation and towards a contextual approach and made no reference to Indigenous peoples or sentencing as such.[xi] The second, Driskell v. Manitoba (Attorney General), concerned the right of individuals serving a sentence of over five years to vote in Manitoban elections. The decision never references Gladue in its body, but listed it as a case “considered on the Charter issue” section of the case. It is likely that it was done so specifically in reference to two affidavits made on the disproportional representation of Indigenous people in the Canadian prison system, for example: “Michael Jackson, Q.C., a Professor of Law at the University of British Columbia, reviewed the historical and current composition of prison populations in Canada. Part of his testimony focused on the disproportionate number of aboriginals in prison.”[xii] The third and fourth also referenced it briefly as a recent precedent on legislative interpretation.[xiii]

Finally, in the final days of 1999, the Manitoba Court of Appeal made a decision that referenced Gladue squarely in reference to its association with s. 718.2(e) and principles in relation to the sentencing of Indigenous people. The year before, Duane Wood, a “status Indian,”[xiv] had violently assaulted and raped a woman in Wasagamack, in northern Manitoba. He was promptly arrested, served five months in pre-trial custody, pled guilty and apologized. Although the trial judge concluded that a sentence for such a crime in these circumstances would usually be three and a half years, he found that given Wood’s circumstances, and credit for time already served, he was sentenced to two years less a day served in his community with conditions. The Crown appealed by arguing that the sentence was too low “to the point of being unfit.”[xv]

In his decision on the appeal, Manitoba Court of Appeal Justice Charles Huband wrote that the trial judge erred by reducing the sentence so drastically, suggesting that there was “no justification” for rounding down to two years less a day when, even accounting double credit for time served, Wood was still left with two years and eight months of incarceration for the assault and rape.[xvi]

Huband justified his decision by addressing both s. 718.2(e) and the recently released Gladue decision. First, he noted regarding the legislation that “[t]he wording chosen by Parliament does not constitute a fetter on the court” but is of course relevant to the situation at hand. Turning to Gladue, he noted that the decision stressed “the prospect of a disposition based upon restorative justice goals,” and acknowledged that a community like Wasagamack might appear to be a viable place for such a process. However, he concluded that the actions of the community following the rape left him without confidence that they would be able to undertake such a restorative justice process because they, apparently, had blamed the victim and in fact directed her to leave the reserve following the rape and had made her “feel unwelcome” after returning.[xvii] He continued that:

The fact that the community was quick to expel the complainant is not an aggravating factor enlarging the punishment. But it does emphasize that in this particular case, denunciation of the offence is of singular importance. It must be made clear that the conduct to be denounced is not that of the victim, who accepted an invitation to share some drinks with the accused in the middle of the night, however unwise (with the benefit of hindsight) that decision may have been.[xviii]

He then concluded by noting that the Gladue decision also noted that differences between sentences for Indigenous and non-Indigenous offenders would likely be reduced relative to the amount of violence involved.[xix] Having addressed s. 781.2(e) and Gladue itself, he determined that Wood should in fact serve a sentence of 38 months minus the time already served in his community.[xx]

Gladue’s reception in Manitoban media and case law in 1999 is demonstrative of the challenging impact it would have on the Canadian criminal justice system in the quarter century that has followed. It showed a divided public reception to the decision, but also a Manitoba court system unclear on how exactly to deal with the new direction within it. Huband’s decision in Wood, for example, is especially intriguing in that it highlighted (albeit without much detail), the challenge of implementing Gladue’s recommendations in communities like Wasagamack that, apparently, sided with the offender and blamed the victim. These tensions — between supporters and skeptics, and between liberalizing instincts and skepticism on the extent to which conventional sentencing procedures should be deemphasized — have remained in the decades that have followed.

Endnotes

[i] Canada, Department of Justice, Public Perception of Crime and Justice in Canada: A Review of Opinion Polls (November 2001) (Author: Karin Stein) at 12.

[ii] Canada, Department of Justice, National Justice Survey: Canada’s Criminal Justice System (2017) (Publisher: Ekos Research Associates), 31 (emphasis added).

[iii] Nathan Dueck, “‘More included to refuse’ — Gladue and Considerations of Indigenous Circumstance in Canadian Bail Reform Efforts from the 1960s to Present” (unpublished), p. 10-14.

[iv] Criminal Code, RSC 1985, c C-46, s. 718.2(e).

[v] R v Gladue, [1999] 1 SCR 688.

[vi] Ibid at para 37 (emphasis added).

[vii] Nahian Ayed, “High court says Caanda has too many prisoners”, Winnipeg Free Press (April 24 1999) A20.

[viii] Editorial, “Natives and Canadian justice”, Winnipeg Free Press (May 2 1999), B6.

[ix] Fred Cleverly, “Unequal justice upheld”, Winnipeg Free Press (May 3 1999), A10.

[x] Tanis Fiss, “Righting past wrongs creates new problems”, Brandon Sun (April 18 2005), p. 4.

[xi] LeClair v Manitoba (Residential Care, Director), 1999 MJ No 243 at para 23.

[xii] Driskell v Manitoba (Attorney General), 1999 at para 63.

[xiii] Readyfoods, a division of Golden Valley Farms Inc v United Food and Commercial Workers' Union, Local 832, 1999 MJ 371 at para 24;

Manitoba (Hydro Electric Board) v John Inglis Co, 1999 MJ 506 at para 47.

[xiv] R v Wood, 1999 MJ 544 at para 8.