In the Gladue case, the Supreme Court of Canada considered Aboriginal sentencing provisions in the Criminal Code.
… the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non aboriginal offender for the same offence.R v Gladue,  1 SCR 688 (SCC) at para 93
On September 16, 1995, Jamie Gladue was celebrating her 19th birthday at her apartment in Nanaimo, British Columbia. She was with her common-law partner Reuben Beaver and other family members and friends. Gladue, who was pregnant with Beaver’s second child, suspected he was having an affair with her sister. She said, “the next time he fools around on me, I’ll kill him”.
Her sister left the party, followed by Beaver. Gladue told her friend, “He’s going to get it. He’s really going to get it this time.” Gladue later found Beaver and her sister coming down the stairs together at her sister’s place a few doors down. When they returned to their apartment, Beaver did not deny the infidelity and shouting ensued. Gladue, with twice the legal driving limit of alcohol in her body, stabbed Beaver. As he fled down the hallway, she grabbed a larger knife and ran toward Beaver telling him “that he had better run.” She stabbed Beaver – this time hard – and returned boasting, “I got you, you fucking bastard.” She jumped up and down “as if she had tagged someone”. Beaver was dead.
Canada’s top judges would later describe this as a “near murder”, although most Canadians would not understate it in this way. Gladue was charged with second degree murder and her plea to manslaughter was accepted. The legal issue became what the appropriate sentence was for this young Aboriginal woman – with prior convictions for impaired driving and breaching bail – who had killed Beaver.
Criminal Code Sentencing Amendments
In 1996, after Gladue’s crime, the Canadian government sought to reduce the rate of incarceration. It introduced amendments to the Criminal Code to address sentencing. Section 718.2 is relevant to Gladue’s sentencing:
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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
Up to now, imprisonment was viewed as the highest form of punishment. The last resort. Essentially the amendment was a statutory codification of existing sentencing practice. But how should the court interpret and apply the phrase “with particular attention to the circumstances of aboriginal offenders” in sentencing?
The sentencing judge listed numerous mitigating factors, including that Gladue was a young single mother (expecting her third child at time of sentencing) with alcohol and thyroid problems. She was taking counselling and educational upgrading, was remorseful, had pleaded guilty to a lesser offence, and had a supportive family. Since she did not put her race in issue, and was not residing on a reserve, the judge saw no need to pay attention to Gladue’s Aboriginal status.
As for aggravating factors? Well, she had deliberately killed someone.
The court sentenced Gladue to three years in prison.
She appealed to the British Columbia Court of Appeal, putting into issue her race and section 718.2(e) of the Criminal Code. These judges disagreed with the broad proposition that Aboriginal offenders had to be living in their community to benefit from section 718.2(e). But “in this case, there is no basis for giving special consideration to Gladue’s aboriginal background” (para 88). They saw this as a fit sentence regardless of the offender’s race. She appealed further to the Supreme Court of Canada.
Supreme Court of Canada Decision
The Supreme Court of Canada then considered whether the sentence of three years imprisonment for killing Beaver was the right application of section 718.2(e). The seven judges unanimously found the three-year jail term reasonable, and they dismissed the appeal. They went on to criticize the errors of judges and lawyers below who “did not have the benefit of these [Supreme Court] reasons” regarding section 718.2(e) (para 94).
The Supreme Court referred to “the tragic history of the treatment of aboriginal peoples within the Canadian criminal justice system” (para 34). They said section 718.2(e) means “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” (para 37).
They said the “serious problem of aboriginal overrepresentation in Canadian prisons” (para 59) and “the excessive imprisonment of aboriginal people” (para 61) can be alleviated. This is done by considering “[t]he unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts, and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection” (para 66). The Court listed thirteen points “to give the provision’s remedial purpose real force”, including more emphasis on “a restorative approach to sentencing” (para 93).
Parliament’s introduction of race-based sentencing for crimes in Canada in 1996 and its full elaboration by the Supreme Court in Gladue in 1999 has been controversial. The Court conceded that “the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non aboriginal offender for the same offence” (para 93). This was not likely to please advocates of victims and equal justice.
This was not a strong case to set Aboriginal sentencing policy under section 718.2(e). Gladue did not even volunteer her race at the trial or sentencing hearing. She did not make it an issue in evidence or submissions. The sentencing judge inquired whether she was raised in an “aboriginal community.” The answer was that she grew up in “just a regular community.” He did not view Aboriginal status as a sentencing factor, finding no special circumstances arising from Aboriginal status. The Supreme Court chose to insert and elevate race beyond what Gladue, the lawyers and lower courts judges had done.
Section 718.2(e) was enacted well after the crime. Since Gladue was not sentenced until 17 months after the crime, she was able to take advantage of the remedial effect of the amendment. As she had essentially finished serving her sentence before her case was heard by the Supreme Court, the entire matter was moot by the Court’s own standards. It was her appeal. As such, a lighter sentence a year after her parole would have been meaningless.
The Court dismissed Gladue’s appeal without applying its new principles, which technically rendered these principles obiter dicta (incidental comments without establishing precedent). Some of the principles themselves are vague and inconsistent.
The Supreme Court’s decision provides little factual analysis, cites little law, stereotypes Aboriginal offenders, and generally reads like an activist sociological essay. The Court picked cherries from old law reform reports that had not been tested in the Gladue case, reports that had gone unimplemented by government.
The Supreme Court could just as easily have applied a light touch rather than a heavy policy reform. The focus on reducing incarceration in sentencing will fail to consider other inter-related issues such as deterrence, proportionality, victims, separation and denunciation. Indeed, the government has amended the clause since 1996 to incorporate some of these considerations.
Because of this decision, the Crown must produce Gladue reports for every offender identifying as Aboriginal. This can be a time-consuming and expensive exercise, a further administrative burden on the Crown already struggling to meet prosecution deadlines.
Gladue risks conflating “alternatives to imprisonment” and “reduction of prison time”, the latter of which the amendment does not address. What effect does less incarceration of Aboriginal offenders have on the crime rate? How do race-based parallel sentencing processes reduce crime or salve the anguish of victims and their families?
Gladue was granted day parole after serving six months in a provincial women’s institution. She then lived with her father and was fully paroled six months later.
The next Famous Cases column will provide a twenty-two-year update on Gladue and describe how courts apply it.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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