Gladue and the 'Aboriginal discount'

Sentencing law has been a rather “blunt tool (Cambell and Wellman, 158)” when facing the overrepresentation of indigenous peoples in the criminal justice system since R. v. Gladue (1999). Which was then simply known as section 718.2(e), calling for less dependence on incarceration and a heavier reliance on community-based sanctions for all, but especially First Nations offenders.

In her case The Supreme Court of Canada stated that “section 718.2(e) was not intended to create an “Aboriginal discount,” but rather to “alter the method of analysis which sentencing judges must use in determining a fit sentence for [A]boriginal offenders (R v Gladue 1999 at para 68)” (Campbell and Wellman, 156). Gladue, a 19-year-old Aboriginal woman was charged in this case with killing her spouse by stabbing him. Ms. Gladue had been the victim of alcohol abuse, domestic violence, and poor health. Her mother, an Albertan Cree, died in an accident after leaving the family when the accused was 11 years old. In the case of residential schools, nothing was said in relation to the accused (see fig. 4). The court did not appear to be very curious about the accused's past. During the trial, Ms. Gladue's defence attorney mentioned that she was raised in "a regular community" in response to a question about her upbringing with her Métis father. The trial judge agreed with this (Roach, 585). She wasn’t seen as indigenous enough due to not being raised on a reservation. Not only is the usage of Gladue reports sporadic as seen in both the cases of Gladue and Sharma but this could also be related to issues of accessibility (see fig. 5). The Palladio graph above shows the locations of Indigenous courts also known as “Gladue Courts” across Canada. Many of which (mostly in Saskatchewan) speak Indigenous languages (Cree or Dene). As great as these are they are also very sparse. There’s only one in Toronto and many clustered in Saskatchewan which were hard to find exact addresses for and am not completely sure all of these exist/are up to date due to the little data Google Maps has of reservations.

This is an example of the inability of the justice system to see indigenous offenders as both victims and offenders rather than one over the other. This also shows that we need reform before indigenous offenders are taken into custody through prevention, community work, improving quality of life, and improvement of encounters/relationships with police.