R v. Gladue, a 1999 Supreme Court of Canada decision has become a landmark case when it comes to matters involving Aboriginal offenders within the Canadian Criminal Justice system. From this decision, a specific type of pre-sentencing and bail hearing report was created. These reports, known as Gladue reports, are a type of pre-sentencing and bail hearing report that a Canadian court may choose to request when preparing sentencing for an offender of Aboriginal background under Section 718.2(e) of the Criminal Code.
Section 718.2 reads that 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 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.
R v. Gladue was the first case to challenge this section. The facts of the case are as follows:
Jamie Tanis Gladue, a young woman of Aboriginal ancestry was celebrating her 19th birthday in Nanaimo, British Columbia. During the celebration, a confrontation took place at some point, wherein the victim uttered many insults at the offender (Gladue). Following these uttered insults, the offender (Gladue) stabbed the victim in the chest. The victim, Gladue’s boyfriend at the time, was alleged to have been involved in an affair with Gladue’s sister. Gladue was charged and convicted of manslaughter and was subsequently sentenced to three years of imprisonment.
During the sentencing hearing, the Judge took into account the fact that she lacked any serious criminal history, among other aggravating factors. The court failed, however, to take into consideration Gladue’s past, including the fact that when she was 14-years-old, her mother was killed in a vehicular accident. Ultimately, it was held by the trial judge held that s. 718.2(e) did not apply to Aboriginal Peoples who were off-reserve during the time of the offence. This judgment was later upheld in the British Columbia Court of Appeal.
One of the main challenges brought against this judgement was noting that section 718.2(e) does in fact apply to “all Aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area”. This fact, coupled with the sentence being upheld twice shows that Gladue’s section 718.2(e) right as an Aboriginal person was given a very narrow interpretation.
Despite an outcome that was challenged and may have been too narrow, the aftermath of this case has resulted in the manifestation of Gladue Courts and reports. The aim of the Gladue reports was with the hopes of addressing the significant amount of Aboriginal peoples involved in the Canadian Criminal Justice system. Gladue reports will note an individuals history, any cultural oppression they may have faced, poverty, abuse, and what role residential schools played in any of that (EX. attendees, or children of attendees). Gladue Reports are prepared following a guilty plea or finding of guilt, and can take up to six weeks to complete. As a general rule, they are mostly completed where a crown is seeking a custodial sentence of at least 90 days for an out-of-custody client or three additional months for a client who is in-custody.
The Gladue Courts were implemented with the hopes of diverting Aboriginal peoples away from the traditional approach of the Criminal Justice system, and towards a rehabilitative approach.
This included the incorporation of more traditional Aboriginal sentencing structures, including round table discussions. Since the R. v. Gladue, not much has actually changed with the implementation of Gladue Courts and reports. There has been no significant decrease in the number of Aboriginal peoples within the Canadian criminal justice system. Some of the main issues still being faced today include the fact that many Aboriginal individuals are unaware of their rights in relation to Gladue. The overall procedure followed to produce a Gladue Report is also both a costly and lengthy process, in addition to there being a shortage of Gladue report writers in smaller communities. Although many members of the legal community have pushed for the federal government to bear the costs of these reports, it remains at present, a Territorial and Provincial matter. The original intention was for judges to come up with different alternatives to incarceration, however there are not many other viable options for punishments by today’s standards that come from Aboriginal traditions. The question I pose for those in the legal profession is this: how can we serve justice in a way that is both modern and Canadian, yet traditional and conscious of the Aboriginal peoples who were originally part of this land, how do we amalgamate the two aspects into one common “serving” of justice?