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| Michelle De Agostini |
Case summary
Jamie Tanis Gladue, an Indigenous woman, was celebrating her 19th birthday with friends and family. Gladue suspected that her partner was having an affair with her sister and later confronted him. After being repeatedly insulted, Gladue stabbed her partner in the chest, killing him. Gladue was highly intoxicated at the time of the stabbing (Gladue, p 689).
Gladue pled guilty to manslaughter and was sentenced to three years in prison. At the sentencing hearing, the judge did not take Gladue’s Indigenous background into consideration due to her location in an urban area. Gladue appealed this sentence, and both the appeal court and the Supreme Court of Canada dismissed the appeal. However, the Supreme Court held that the lower courts erred in deciding that Gladue’s Indigenous background should not be considered due to her geographical location. In their decision, they set out factors that sentencing courts applying s. 718.2(e) of the Criminal Code, RSC 1985, c C-46 (CC) should consider, leading to the creation of Gladue Reports — presentence reports that assess a person’s Indigenous background (pp 690 – 692).
S. 718.2(e) of the Criminal Code and the over-incarceration of Indigenous Peoples in Canada
In Gladue, the Supreme Court emphasized that the purpose of the guiding principle of s. 718.2(e) of the Criminal Code is to respond to the problem of over-incarceration in Canada, and the over-incarceration of Indigenous peoples in particular (para 50). Thus, a person’s Indigenous background and the unique factors that may have brought them before the courts must be taken into account when administering a sentence, especially when that sentence includes incarceration (paras 66 – 81). The Supreme Court determined that this information would be sought out and provided to the courts in the form of a pre-sentence report (a Gladue Report). However, the court noted that “section 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of Aboriginal offenders,” (para 9). So, as a guiding principle, s. 718.2(e) must be considered, but ultimately the court cannot impose a sentence outside of any mandatory minimums or maximums or legal precedent that establishes sentences for similar crimes. This makes it the legal equivalent of an institutional land acknowledgement — the courts are acknowledging that there are significant systemic factors that have led to the over-incarceration of Indigenous people in Canada, but they have not enacted the steps towards radical changes that are needed to reduce the number of Indigenous people in prison.
Indeed, the ineffectuality of this case is shown through the fact that the number of incarcerated Indigenous people in Canada has risen significantly since its publication. Gladue noted that, by 1997, Indigenous Peoples constituted three per cent of the Canadian population and 12 per cent of the federal prison population (para 58). In 2022, the Office of the Correctional Investigator noted in its 2021-22 Annual Report that “since 2012 … the in-custody population of white individuals decreased by 23.5 per cent. Over the last decade alone, the total Indigenous offender population (incarcerated and community) has increased by 40.8 per cent. …Today, despite accounting for approximately 5 per cent of the adult population, Indigenous Peoples continue to be vastly over-represented in the federal correctional system, accounting for 28 per cent of all federally sentenced individuals and nearly one-third (32 per cent) of all individuals in custody.” (Canada, Office of the Correctional Investigator, Annual Report 2021 – 2022, by Ivan Zinger, (Ottawa: OCI, 2022), at pp 95 – 96).
The above-noted statistics are further proof that s. 718.2(e), Gladue and subsequent cases like R v. Ipeelee, [2012] 1 SCR 433, have been insufficient to reverse or even to mitigate the over-incarceration of Indigenous people in Canada. This is because simply acknowledging the issue of over-incarceration and requesting presentence reports that state the systemic and background factors that bring Indigenous people before the courts without creating a sentencing precedent or the social infrastructure that would provide for alternatives to incarceration is only a bureaucratization of the issue, not a solution.
Gladue Reports and the bureaucratization of oppression
The Gladue case is ineffectual because it did not account for the far-reaching complexity of the issue of the over-incarceration of Indigenous people, and it could not dismantle the systems of oppression that send people to prisons in the first place. There are many practical and systemic challenges to implementing Gladue principles in a meaningful way, including their inconsistent application, a lack of resources and a lack of creativity in sentencing which leads judges to “… find it difficult to conceive of a sentence in anything other than punitive terms and in connection with classical sentencing theories (retribution, deterrence, denunciation and rehabilitation in secure custody),” (Marie-Andree Denis-Boileau & Marie-Eve Sylvestre, “IPEELEE and the Duty to Resist” (2018) 51:2 UBC L Rev 548 at p 595). In creating Gladue Reports without addressing these challenges, the Supreme Court only added to the systemic oppression that Indigenous people face when they enter Canada’s so-called justice system.
For example, in sentencing decisions, Gladue Reports can undermine a person’s right to be considered for “all available sanctions other than imprisonment” (Criminal Code, s 718.2(e)) and can lead to longer sentences or even a dangerous offender (DO) classification (Marie-Andree Denis-Boileau & Marie-Eve Sylvestre at p 598). The decision to impose an indeterminate prison sentence and designate someone as a DO is informed by that person’s risk of recidivism and their ability to be rehabilitated (p 599). However, as Denis-Boileau and Sylvestre note (p 599),
… the risk of recidivism is substantially influenced by “unique systemic or background factors, which may have played a part in bringing the particular Indigenous offender before the courts.”
… Similarly, the potential for rehabilitation is significantly affected by the “types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Indigenous heritage or connection.”
In this way, the same background factors that the courts must consider when deciding the sentence of an Indigenous person can be weaponized against that person and lead to a harsher sentence.
Furthermore, these very same systemic and background factors can lead Indigenous people to be incarcerated in higher-security prisons after sentencing, effectively reducing their access to culturally appropriate programs and services that would be considered rehabilitative (Canada, Senate, Human Rights of Federally-Sentenced Persons, (Ottawa: The Standing Senate Committee on Human Rights, 2021) at p 64). Canadian prison systems operate under a class system, with different privileges and access to resources allocated to people in prison based on their security classification: minimum, medium, maximum and special handling unit (or supermax).
Different institutions have different security classifications, and individuals are housed in these institutions in locations that correspond to their gender assigned at birth, physical or mental health status, organized crime affiliation, the type of crime committed and whether they pose an institutional security risk. When people are federally sentenced, a risk assessment is conducted by the Correctional Service of Canada (CSC), and this is used to determine their security classification (p 63). The factors which are considered by the CSC to determine a person’s security classification, such as alcohol and drug use, age, street stability, the number of prior convictions and the severity of the current offence (p 68), are similar to those that are assessed during sentencing.
The computer system into which these factors are entered does not allow for context or nuance. It does not consider the unique circumstances of Indigenous people, only that these factors classify them as being less likely to be rehabilitated and more likely to reoffend according to an arbitrary dataset that does not account for their humanity (pp 69 – 73). In this way, the oppression of Indigenous Peoples is continually bureaucratized.
Conclusion
The Gladue case has been ineffectual in mitigating the over-incarceration of Indigenous people in Canada because it did not set a precedent for real, radical change. The Supreme Court took the first steps towards change in Gladue by acknowledging that the problem of over-incarceration existed and setting out that the courts must consider the systemic and background factors that bring Indigenous people before the courts. However, it ultimately agreed with the lower courts that Gladue was sentenced appropriately, thus failing to provide the precedent required for courts to consider alternatives to incarceration while constrained to the boundaries of legal precedent. Therefore, the Gladue case could only ever hope to achieve the status quo — the continuation of the over-incarceration of Indigenous Peoples in Canada.
Michelle De Agostini is a library worker, former prison librarian and perpetual student with a Master of Library and Information Studies from the University of Alberta. She is passionate about prison abolition, accessibility and social justice and has published and spoken widely about prison librarianship in Canada.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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