Gladue report

Subsection 718.2(e) is a guiding principle and not a substantive power. Therefore, the court is not at liberty to impose a sentence outside the range of legally available penalties. For example, if there is a minimum sentence of imprisonment, the court cannot use the Gladue Principle to impose a sentence lower than the minimum. However, courts have considered the Gladue Principle in determining the constitutionality of minimum sentences which are set by the Crown, depending on whether the Crown elects to serve a notice of enhanced penalty under s. 729 or elects to proceed by indictment.

In March 2012, the Supreme Court of Canada ruled that the Gladue Principle also applies to breaches of long-term supervision orders. They stated that "failing to take aboriginal circumstances into account would violate the fundamental principle of sentencing". This ruling, R. v. Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, also reinforced the principles underlying the Gladue Report generally. Ipeelee itself has quickly become extremely influential in sentencing matters concerning aboriginal offenders, having been cited in over 80 Canadian court cases in just 7 months from the time it was issued and is now effectively a companion case to Gladue in this area.

Aboriginal peoples are the most over-represented ethnicity in Canada’s criminal justice system. Indigenous Canadians are generally disadvantaged in society due to a number of socio-economic factors. It has been argued that these problems stem from the generational effects of colonization, including displacement and the residential school system. Social, economic and political issues such as drug and alcohol abuse, poverty, unemployment and the loss of cultural identity have also been cited. It has also been argued that governmental policies and laws often leave communities impoverished and disadvantaged. In federal penitentiaries across Canada, twenty three percent of incarcerated people are Aboriginal.[12] In the western provinces, sixty percent of inmates are identified as Aboriginal.[13] That is more than half of the prison population in the most densely populated area of Aboriginal communities. Aboriginal people make up roughly three percent of Canada’s population.[14] In the late 1990s, Parliament began its first major review of sentencing procedures in the Criminal Code.[15] It had been recognized by the federal and provincial governments that Aboriginal people in Canada were severely over-represented in the prison system. In 1996, the section of the Criminal Code of Canada that dealt with sentencing was reformed to introduce sentencing guidelines.[16] Section 718.2 of the Criminal Code of Canada was amended to instruct sentencing judges to examine all possible alternatives to incarceration, with a special consideration to be made in the cases of Aboriginal offenders.[17] The amendment specifically aimed to address Aboriginal over-representation and stated that in order to determine an appropriate sentence, the judge must consider the background of the accused as these can often be mitigating factors.[18] The Court found that the rate of incarceration for Aboriginal offenders was extremely high, and hoped that these amendments would provide some alternatives to imprisonment. Section 718.2(e) of the Canadian Criminal code was changed to dictate that "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".[19] Allan Rock, Canada’s Minister of Justice at the time explained that the amendment "aims to encourage courts to look at alternatives [which are] consistent with the protection of the public – alternatives to jail – and not simply resort to that easy answer in every case".[20] Under this amendment, correctional decision makers must take into account Aboriginal social history in situations where their liberty is at stake.[21] The factors include the effects of the residential school system, experience in the child welfare and adoption system, effects of dislocation and dispossession of Aboriginal peoples, level or lack of formal education and poverty and poor living conditions.