R v Gladue

R v Gladue
Supreme Court of Canada
Hearing: April 23, 1999 Judgment: December 19, 1999
Full case name	Jamie Tanis Gladue v Her Majesty the Queen
Citations	[1999] 1 SCR 688
Ruling	Appeal dismissed
Court membership
Chief Justice: Antonio Lamer Puisne Justices: Claire L'Heureux-Dubé, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major, Michel Bastarache, Ian Binnie
Reasons given
Unanimous reasons by	Cory and Iacobucci JJ
McLachlin and Major JJ took no part in the consideration or decision of the case.
Laws applied
Criminal Code, s. 718.2(e)

R v Gladue, [1999] 1 SCR 688 is a decision of the Supreme Court of Canada on the sentencing principles that are outlined under s. 718.2(e) of the Criminal Code. s. 718.2(e) directs the courts to take into account the history of the offender, "with particular attention to the circumstances of Aboriginal offenders", and also directs the courts to seek, "all available sanctions, other than imprisonment".

Criminal Code amendment, 1995

In 1995, the federal government introduced major changes to the sentencing provisions of the Criminal Code. As part of that review, the package included amendments that responded to the over-representation of Indigenous peoples in the correctional systems of Canada. At that time, Indigenous peoples amounted to approximately 18% of the total of incarcerated individuals, but were only 3% of the total population of Canada, an over-representation of more than 5 times their total population.

The amendments included a new provision setting out general sentencing principles. The relevant provision was the new s. 718.2(1)(e):

Other sentencing principles

718.2 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.

Background

On September 16, 1995, Jamie Tanis Gladue, a young Indigenous woman, was celebrating her birthday with some friends in Nanaimo, British Columbia. She suspected that her boyfriend was having an affair with her older sister. Following a confrontation, her boyfriend repeatedly insulted Gladue, at which point she stabbed him in the chest. He died. Gladue was charged with manslaughter and was sentenced to three years imprisonment.

At Gladue's sentencing hearing the judge took into account many aggravating factors. The court also took into account the absence of any serious criminal history. The court did not take into consideration Gladue's traumatic past, such as the fact that Gladue's mother was killed in a car accident, when Gladue was 14 years old. The trial judge held that s. 718.2(e) did not apply to Indigenous people who were off-reserve. The British Columbia Court of Appeal upheld the sentence.

Reasons of the Supreme Court

The Supreme Court upheld the sentence of three years, but reviewed the factors which should be considered in the new sentencing provision, s. 718.2(e). Justices Cory and Iacobucci held that the courts below erred in taking an overly narrow approach of s. 718.2(e). The purpose of this provision is to address the historical and current problem with the severe over-representation of Indigenous people within the criminal justice system. In Canada, Indigenous people make up 25% of the Federal prison population, despite representing only 4% of the Canadian population.

Gladue was not on reserve land at the time of the offence and therefore the sentencing judge held that s. 718.2(e) did not apply. The Supreme Court held that was a mistake by the sentencing court. The Court held that section 718.2(e) applies to "all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area".

Gladue reports

Following the Supreme Court decision, sentencing courts began requiring pre-sentencing reports for aboriginal offenders, to specifically report on the factors which the Supreme Court held were required by s. 718.2(e), which Parliament had enacted in an attempt to lower the severe over-representation of Indigenous people within the Canadian criminal justice system. These reports became known as Gladue reports. Some of the items included in Gladue reports include the tragic history, cultural oppression, poverty, abuse suffered and residential school attendance of the Indigenous offender.

See also

• List of Supreme Court of Canada cases (Lamer Court)
• R v Ipeelee
• R v Wells
• Healing lodge
• Gladue report
• Indigenous Peoples and the Canadian Criminal Justice System