Gladue principle has largely failed in its goals in past 25 years: Yellowhead Institute
Former Supreme Court justice Frank Iacobucci hasn’t changed his mind on the decision
The Gladue decision, written 25 years ago this year, was supposed to lower the representation of Indigenous people in Canada’s prisons. But, studies show, that number has risen over the years. (File photo by Jeff Pelletier)
The principle that defines Canada’s approach to criminal cases involving Indigenous people has been “ineffective” in battling discrimination in the criminal justice system, according to a report released in July by the Yellowhead Institute.
The report, called Twenty-Five Years of Gladue, investigates how the justice system has changed in light of the Supreme Court of Canada’s decision in the case of R. v. Gladue.
In the decision, Supreme Court justices Frank Iacobucci and Peter Cory reminded lower court judges that they must take Indigenous heritage into account when handing out sentences.
Iacobucci and Cory called the overrepresentation of Indigenous people in Canadian prisons a crisis.
“This was a strong reminder to judges to think long and hard before you sentence him or her to prison,” said Iacobucci, who now works as a lawyer for a corporate firm based in Toronto. He spoke to Nunatsiaq News about the decision recently.
But in the years after Gladue was implemented, the representation of Indigenous inmates has grown to 33 per cent from 12 per cent, according to the 2022-23 annual report by the Office of the Correctional Investigator of Canada.
On Sept. 19, 1995, a Cree woman named Jamie Tanis Gladue was having a birthday party in Nanaimo, B.C. She was turning 19.
At the party, she suspected her boyfriend, 20-year-old Reuben Beaver, was having an affair with her sister.
The two started fighting and Gladue stabbed him in the chest. Beaver died.
In June 1996, Gladue was charged with second-degree murder. In February 1997, she pleaded guilty to manslaughter and in March that year she was sentenced to three years in prison.
The case reached the Supreme Court in 1999. Justices unanimously agreed the sentencing judge failed to take Gladue’s Indigenous heritage into account, which is required in the Criminal Code of Canada.
In the Supreme Court decision, released April 23, 1999, Iacobucci and Cory reaffirmed the Criminal Code requirement, writing that judges should consider offenders’ Indigenous background regardless of where they are because their “circumstances are unique” and should be treated differently to make the sentence “truly fit and proper.”
However, the judges did not change Gladue’s sentence.
There is no uniform approach to the Gladue principle in Canada, according to the Canadian Bar Association.
Some jurisdictions, such as Ontario, have specific Gladue courts. Others take an Indigenous-led approach with a First Nations administration of law under self-government agreements. Some jurisdictions have no Indigenous-specific court service at all.
Nunavut judges serve communities with populations that are as much as 85 per cent Inuit. Those judges have “depth and breadth of experience in Inuit context,” according to the Canadian Bar Association.
Because of this, nearly every decision released by the Nunavut Court of Justice will mention the Gladue principle.
Frank Iacobucci says he did the best he could when voicing his opinion on the R. v. Gladue case in 1999. Iacobucci was one of the two Supreme Court of Canada justices to write the unanimous decision that would define the Canadian legal system’s approach to cases involving Indigenous offenders. (Photo courtesy of Supreme Court of Canada)
Critics have considered the Gladue principle to be “unfair” to non-Indigenous people by giving a “race-based discount” on sentencing, according to the 2023 Department of Justice report Spotlight on Gladue.
However, the report by the Yellowhead Institute — an Indigenous-led education and research centre based at Toronto Metropolitan University — said that Gladue has failed in its promise to make the legal system more just to Indigenous people.
“The key driver of incarceration generally is the attack on Indigenous social organization, culture, and economic structures that have pushed Indigenous people to the lowest socio-economic indicators in the country and exponentially increased encounters with police. For Indigenous women, gender violence compounds the trend,” the report said.
“Canada’s corrections ombudsman argues this drives recidivism as well.”
A study by the Correctional Service of Canada in 2019 found nearly 38 per cent of all federal offenders released in 2011–12 reoffended within five years and about 60 per cent of Indigenous men reoffended in that period.
“Gladue has been interpreted to be a manifestation of restorative justice. Yet, in practice, the vision has not materialized,” according to the Yellowhead Institute report.
In the 13 years that Iacobucci sat on the highest court bench in Canada, he said he heard many cases that he considered both consequential and controversial, but if he were to write a memoir Gladue would be one of the first ones he would mention.
Those who have criticized the ruling as being a “race-based discount” are “ignorant” to the failures of the justice system for Indigenous people, Iacobucci said.
“I haven’t changed my mind,” he said of the ruling, adding it worked as a “companion” to the overall shift in the mindset of Canadians toward Indigenous people.
“If I was proved wrong, then the law will be changed over time,” he said, adding: “But I don’t regret the decision, because I did the best I could.”
Yet violence against indigenous women in Canada is at an all-time high. Wonder if the Gladue principle is at least partially responsible for this?
Hard to know, but clearly the incentive structure under this model is completely distorted and does far less to deter than it should.
Also hard to believe a Supreme Court Justice could be naive enough to think lightening sentences to lower the incarceration rate of a demographic without solve such a complex issue without a raft of unintended consequences.
867 your opinions are always critical of Inuit and yet you choose to live here, wouldn’t your highly esteemed self be better served down south. Or is it that you make more money up here than you would down there.
The red herring fallacy.
Nothing wrong with being critical, that’s how we make progress. Look around, there’s lots of progress still to be made. I love inuit and inuit nunangat, but nice try.
@ 867
Generally speaking there is not to much wrong with being critical where and when it makes sense, but there are times when the colonists make such asinine remarks it just begs to be addressed.
Ie Stating non-Inuit who have studied in Nunavik for the past 12 years, should have as much opportunity as Inuit in enrolling at McGill University. The fact that this scenario does not exist, clearly indicates a red herring/what aboutism that must be corrected.
867’s comment wasn’t even about Inuit. I’ll quote, since you seem to have missed it “violence against indigenous women in Canada is at an all-time high”.
Figure it out.
I’m trying to understand how a principle could be cause for increased violence against women. The principle is only applied after the violence has occurred, and it is only applied in a court. How does it increase incidences of violence?
I will say, in a southern world, for the safety of indigenous peoples, I understand why Gladue should be considered in sentencing. In Nunavut territory,.. I’m not so sure. Offenders, and especially re-offenders should be penalized as allowed by the full extent of the law.
AMEN.
Are you arguing that sentencing in court has no play on actus reus and mens rea? That people don’t commit crimes solely because they are good people and not because the laws and sentencing of crimes is deterring people from them?
Because it constantly causes those who abuse woman to be released over and over again with disgustingly short sentences. Sending the abuser right back into the home to continue abuse. I watched this occur over and over again, slap on the wrist followed by slap on the wrist and then the abuser eventually murders their partner.. This could have been avoided if adequate sentences were given. Worked in corrections in Nunavut for a long time.
So the original Ms. Gladue murdered her boyfriend, and then got a whopping THREE years for it under the old sentencing model that didn’t account for race? And that was considered too harsh due to her being aboriginal, and resulted in the Gladue principal which gets even measly sentences reduced further?
Yikes. No wonder aboriginal communities are so dangerous and dysfunctional. We wouldn’t want any dangerous criminals doing any serious time so that their communities can be safe from them for a little while longer, now would we?
There’s an important discussion missing here – the representation of indigenous people has increased almost threefold in the past 25 years, despite attempts at implementing the Gladue principle. Where is the conversation about the conditions in society that leads people, particularly indigenous people, to criminal activity? it’s one thing to change the criminal and legislative system to address systemic racism, but unless we change the system and conditions that drive criminal behaviour we are not fixing anything. The racist conditions exist in society, in underfunded and neglected communities and half-hearted government programs that blindly throw just enough money at the problem to make the appearance of help. We need better funded school, housing and infrastructure AND we also need accountability of those programs to see that they achieve the outcomes we need.
The problems may be systemic, but why assume unequal outcomes and a growing incarceration rate are the products of racism? I know that’s axiomatic in some circles, but the kind of ‘a priori’ acceptance you take for granted and expect is, for many of us, not good enough.
To me it seems the problem is a lack of economic development and integration, underpinned by features of modern culture that resist development and integration. “More government funding” is unsurprisingly and almost always the answer, though I grant you at least recognize the systemic incompetence that makes much of the funding already in place ineffective.
Because that it is what is taught in school anti-racism training and promoted by authors like Ibram X Kendi. If there is any difference in outcomes between races it is evidence of racism.
He is, of course, wrong, and applying an foreign model like his in Canada is questionable, but that is what is taught in universities across the land today. Of course, by that logic, the underrepresentation of men in post-secondary education evidence of anti-male sexism.
Indeed, I could smell the stench of Kendi’s work all over this comment. Much like him, people who use these ideas rarely if ever expand on their meaning or defend them when inquired. It’s all just so “self evident” they really don’t see the need.
Nunatsiaq, you completely oversimplified the facts in this case – boiled down to the basic intelligence level of your average reader, e.g., 867? Or just lazy reporting? Step it up please.
I am sure the rather tame and well-reasoned decision of Gladue will lead to equally tame and well-reasoned discussion here in the NN Comments section….
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I predict all the usual critics will comment to mention how these supreme court judges actually don’t understand our justice system, if the usual tenor of the comments section of Justice stories takes place here.
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The fact is Gladue is not what the average person criticises it for – ‘race-based woke snowflake sentencing discounts’.
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And another fact is that cases such as Gladue and Ipeelie have failed at correcting what they discussed. It is undeniable to anyone familiar with the Canadian court system beyond just grabbing headlines and twisting segments of sentencing submissions to get upset about online.
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I think a story such as this is great initiative on the part of Nunatsiaq News, as is interviewing someone well-placed like Frank Iacobucci. There is no jurisdiction in Canada that has as intimate a connection to Gladue like Nunavut does, it is good to take the initiative to explore what it was meant for and how it has failed to address the societal ills it rightfully brought to light.
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I would love to see more stories such as this one, a story like this is befitting one of the nation’s top newspapers and it is great to see NN take this story on and handle it well!
The SCC of that era is just so activist . This case, Marshall case, all just a bunch of judicially invented ideas by a group of judges based in Ottawa having practiced law in major urban centres before their political appointments. I find it hilarious Iaco doubled down despite the evidence Gladue principles do not do anything for indigenous offenders while simultaneously giving the impression to others that it is a race card.
It’s worse than having no effect, it has a negative one, which should have been entirely predictable.
The sad fact of the matter is that Gladue Principles were never properly implemented at any level in Canada. They were supposed to lead to diversions out of the criminal justice system to programs and services that addressed the root causes of the offending but that’s next to impossible if those programs and services don’t exist. Instead of creating them, provincial governments have thrown up their hands and have instead gutted programs and services used by vulnerable people. Of course crime is getting worse.
In the absence of these programs and services, the only outcome is what we see, reduced sentences due to the harm and trauma that had previously been done to the offender. This does no one any favors and makes reoffending likely and frustrates victims and their families.
The sadder fact is that deterrence also doesn’t work (and never has) and warehousing inmates together in facilities that makes them angrier and takes away their livelihood just makes them more violent and less stable.
The sad fact is that a human being is a human being is a human being.
No matter the race, a human being is capable of horrible things or capable of great things. Gladue killed her boyfriend in a jealous rage (or so it seems from the article). If a Caucasian woman did the same thing, would the outcome be different? I think it would as the decisions are based on race and not a human being causing harm to another human being.
need transparency in this new inclusive world as listen for a moment as this effects US ALL. To Understand better needs to have equal representation and and then judge in proper manner understanding the environment and the cost of living.?
Nope.
I have no time for Gladue. In my case my 29 year old son was brutally murdered on March 19, 2018. The murderers lawyer attempted to use Gladue for her client. I am Inuk. I am an Alcoholic and Drug Addict. My Sobriety date is July 1, 1985. When I broke the law, I served my time. I may have broken the law while drunk and stoned. This is my responsibility. I grew up in a dysfunctional family and a dysfunctional community. I have seen domestic violence. I have seen family violence. And I have seen community violence. This violence is rapes, sexual moleststions, spousal abuse, family physical beatings. Abandonment, left to survive by ones self or to help younger brothers or sisters to survive. In my case, the violence stems from the dog slaughter, residential schooling, Federal and provincial governments attempting to turn us into white people. The Anglican Church and other churches sexually assaulting and abusing young boys and girls at a young age. When I was a child and then turning into a teen, I listened to my mother’s, uncles, aunties, grabdfathers and grandmother’s stories of how they were treated back in the 40, 50 and 60’s as a zinuk growing up in the white man’s culture. I heard those traumatic stories from them and I turned angry and hateful towards all people, white. I had to learn to Forgive and Accept everyone’s heartache and pain. I had to learn to deal with the madness that we as a people went through.
I had to change my way of thinking and change my behavior.
I had to stop blaming other people and accept my responsibilities.
Don’t seek the easy way out by getting drunk, stoned or contemplating suicide. To those who want to use Gladue is taking the easy way out. Step up, accept your responsibilities when we break the law. Don’t use our past as a easier way out. Peace