R v Gladue

Gladue interpreted s.718.2(e) of the Criminal Code requiring sentencing judges to consider all reasonable alternatives to imprisonment, with particular attention to the circumstances of Indigenous offenders. The decision launched the "Gladue principles" framework.

Jamie Gladue, an Indigenous woman, killed her common-law partner during an altercation. She pleaded guilty to manslaughter and received a three-year sentence. The trial judge gave little weight to her Indigenous status, reasoning that she lived off-reserve.

How does s.718.2(e) apply to Indigenous offenders?

Sentencing judges must consider (a) the unique systemic and background factors that may have played a part in bringing the Indigenous offender before the court, and (b) culturally appropriate sanctions including restorative justice. Sentence not varied on the facts but framework articulated.

Section 718.2(e) is a remedial provision aimed at the over-incarceration of Indigenous people. Sentencing judges must consider the unique circumstances of Indigenous offenders and culturally appropriate alternatives. The duty applies whether the offender lives on or off reserve.

Cory and Iacobucci JJ traced the over-representation of Indigenous people in Canadian prisons to systemic factors including colonialism, displacement, and residential schools. The Code provision is a legislative response that requires substantive engagement, not box-ticking.

Gladue reports — pre-sentence investigations of an Indigenous offender's background — are now standard. R v Ipeelee (2012) reinforced and extended Gladue. Despite the framework, Indigenous over-representation has continued to grow.

R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC).

Lamer CJ, L'Heureux-Dubé J, Gonthier J, Cory J, McLachlin J, Iacobucci J, Major J, Bastarache J, Binnie J