The legislative anchor

Section 718.2(e) of the Criminal Code: a court that imposes a sentence shall take into consideration "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."

The provision is remedial, aimed at the over-representation of Indigenous people in Canadian prisons.

Gladue (1999)

The leading SCC interpretation. Cory and Iacobucci JJ held that sentencing judges must consider:

The unique systemic and background factors that may have played a part in bringing the Indigenous offender before the court.
Sanctions that may be appropriate to the offender''s heritage or connection.

The duty is mandatory and applies whether the offender lives on or off reserve.

Ipeelee (2012)

Confirmed that Gladue principles apply to every sentencing of an Indigenous offender, including for serious offences and breaches of supervision orders. Failure to apply them is reversible error. The Court explicitly criticised lower courts for inconsistent application.

Gladue reports

Specialised pre-sentence reports prepared by trained Gladue writers. They document the offender''s background, including:

Family disruption (residential schools, child-welfare apprehension).
Community context (poverty, addiction, dislocation).
Cultural and personal factors.
Available restorative options.

Where a Gladue report is unavailable, the judge must still seek out the relevant information.

What Gladue does and does not do

Gladue does not create a discount or guarantee non-custodial sentences. It requires the judge to engage substantively with the systemic context. Serious offences may still warrant penitentiary sentences (Friesen on child sexual offences).

But Gladue requires the judge to exhaust restorative and community-based options before resorting to imprisonment, and to articulate the engagement in reasons.

Continuing crisis

Despite 25 years of Gladue, Indigenous over-representation in Canadian custody has worsened. The Office of the Correctional Investigator and the Truth and Reconciliation Commission''s Calls to Action have repeatedly addressed it. Sharma v R (2022 SCC 39) addressed conditional sentences and equality interests for Indigenous offenders.

Drafting tip for sentencing submissions

Identify the Indigenous offender''s circumstances early in the submissions. Ground the analysis in a Gladue report where available; describe specific systemic factors; tie those factors to the offender''s circumstances; identify specific restorative options with capacity to serve the sentencing principles. Engagement, not boilerplate.

Sentencing Indigenous Offenders