Gladue In Depth

In 1996, as part of a comprehensive set of amendments to the Criminal Code, the Canadian government enacted Section 718.2(e) which expressed the need for judges to consider all other sentencing alternatives before sending an offender to prison –with particular consideration for the circumstances of Aboriginals.  R. v. Gladue was the Supreme Court of Canada’s first treatment of this provision.  This decision interpreted s.718.2(e) as a remedial measure aimed at combating the over reliance on incarceration in Canada and the startling over representation of Aboriginal peoples in Canadian prison systems.  Courts were called upon to apply sentencing dispositions that are more culturally suited to Aboriginal perceptions of justice and more likely to succeed in rehabilitating and healing offenders as opposed to merely putting them in prison.

While comprising approximately %3 of the population, Aboriginal peoples nonetheless make up about 20% of all prisoners in Canada as of 2005. [1]  In British Columbia, an Aboriginal youth aged 12-17 is about 9-10 times more likely to be in prison than a non-Aboriginal youth. [2]  Moreover, studies have increasingly shown that incarceration is not an effective rehabilitative process and that it may even exacerbate the situation. [3]  This is especially true for Aboriginals due to cultural differences that include a unique conception of justice and systemic discrimination that often extends to jails themselves. [4]

In Gladue, the Supreme Court held that Parliament intended s.718.2(e) to address this problem to the extent possible.  It recognized that the criminal justice system has failed Aboriginals and that, though many of the underlying causes of Aboriginal over-representation in jails are beyond the power of the courts to fix, judges should attempt to address this “crisis in the Canadian criminal justice system” to the extent that they could in carrying out their functions. [5]

To this end, judges are to use a different method of analysis in applying the principles of sentencing to Aboriginal offenders.  This method shifts the focus of the analysis to underlying causes of crime such as direct and institutional discrimination, exposure to abuse, dependency on illicit substances or alcohol, as well as other issues that disproportionately affect Aboriginals.  These factors have been identified by some as lingering effects of colonialism and Gladue recognizes that a sentence for an Aboriginal offender should, whenever possible and reasonable, attempt to address these causes and to heal the ties between the offender, the victim, and the community in traditional Aboriginal fashion. [6]

This does not mean that Aboriginal offenders are entitled to lighter sentences.  The same principles of sentencing apply to all offenders, and the more serious and violent the offence, the more likely it will be that these principles will demand a similar disposition for Aboriginal and non-Aboriginal offenders alike, including prison terms of similar lengths.  This is because the need to denounce the offence and deter future offenders and the need to protect the public will carry more weight than the interest in rehabilitating the offender in more serious and violent cases.

Restorative justice measures have been found less effective at fulfilling the need to denounce more serious offences of violence in many cases. [7]  Also, for offenders who are at a high risk of re-offending, especially violently, the need to protect will often require that they be separated from the general public.  But for many violations, particularly those that warrant a sentence of less than two years, restorative justice can meet the demands of sentencing principles while providing a more culturally appropriate rehabilitative remedy and reducing the use of prisons. [8]  This is especially true when such restorative remedies are one component of a conditional sentence under Section 742 of the Criminal Code, with added restrictions and treatment requirements.

In fact, those Aboriginals who receive traditional restorative sentences will find that these are often at least as onerous as incarceration. [9]  This is because a restorative remedy requires the offender to accept full responsibility for their actions and the consequences thereof.  To face their community and come to terms directly with the harm they have caused.  Prison sentences, on the other hand, are far more passive experiences where the offender is mostly absorbed with passing the time.  The rigours of the restorative process serve as a specific deterrent and “the intensity of the process itself shows offenders that the community decidedly denounces the conduct.” [10] 

Perhaps more importantly, restorative justice allows the offender to focus on rehabilitating themselves so as to remove what it is that causes them to offend.  Though research into the long term effects of restorative justice on recidivism is in its infancy, studies have shown that properly carried out programs can lead to lower recidivism rates, particularly for adult offenders and especially when combined with targeted treatment programs. [11]  The impact of a restorative process on the victim of a crime is dramatic, with anger, the desire for vengeance, and lingering senses of fear and insecurity all considerably lower than when the offender has undergone a conventional justice process. [12]

In sentencing, judges have a responsibility to recognize the general adverse conditions suffered by Aboriginals as a people.  It is also incumbent upon them to seek out the background and systemic factors that have affected a specific Aboriginal offender and brought them before the court in this instance and to consider what alternatives to imprisonment are available in the community.  A proper sentence will take account of both the general issues faced by all Aboriginals and the specific cultural hardships experienced by the offender.  It will also take into account the Aboriginal community’s perception of justice, with its emphasis on healing and restorative remedies.