Executive Summary – Indigenous People and Sentencing in Canada

(Disponible en français : Résumé – Les peuples autochtones et la détermination de la peine au Canada)

Indigenous people are incarcerated at a much higher rate than non-Indigenous individuals in Canada, and the gap between the incarceration rates for these two groups continues to grow. The problem of the overincarceration of Indigenous people has been examined by numerous commissions, including the Aboriginal Justice Inquiry of Manitoba, the Royal Commission on Aboriginal Peoples, and the Truth and Reconciliation Commission. These commissions identified numerous factors that have contributed to this problem, including colonialism, racism and intergenerational trauma caused by residential schools and the “Sixties Scoop.”

The Criminal Code (Code) was amended by Parliament in 1996 to include section 718.2(e), which requires sentencing judges to consider the unique background and circumstances of Indigenous offenders, as well as all available alternatives to incarceration that may be appropriate. This provision is aimed at reducing the rate of incarceration of Indigenous people in Canada.

The Supreme Court of Canada (SCC) first considered section 718.2(e) in R v. Gladue (1999). In this case, the SCC decided that when sentencing an Indigenous offender, sentencing judges must consider the following: 1) “[t]he unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts”; and 2) “[t]he types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.” These considerations are known as the “Gladue principles.” In R v. Ipeelee (2012), the SCC reaffirmed and expanded on the Gladue principles.

The Gladue principles have been applied through a variety of means. Certain jurisdictions have implemented specialized Gladue courts for individuals who identify as Indigenous. Another common method of implementing the Gladue principles is through the preparation and consideration of special reports, known as Gladue reports, that can provide a sentencing judge with information about the background and circumstances of an Indigenous offender, as well as suitable alternatives to incarceration that are available in the community of the offender.

A variety of alternatives to incarceration may be considered by a sentencing judge, such as restorative justice processes or serving a sentence in a healing lodge, which is specifically tailored to Indigenous offenders. Alternative measures (also known as diversion) are an additional option, which allow an accused to avoid prosecution while still holding them responsible for their actions.

The Gladue principles, as well as their application, have been criticized as being unfair by establishing sentencing considerations that differ based on whether an individual is Indigenous or non-Indigenous. However, the SCC has attributed such criticisms to a lack of understanding of the Gladue principles and has affirmed that potential differences in sentences for Indigenous and non-Indigenous offenders will be based on the circumstances of each individual as they relate to sentencing principles.

The implementation of the Gladue principles has faced a variety of challenges. Despite the principles being designed to address the high incarceration rate of Indigenous people in Canada, the number and proportion of Indigenous offenders in federal correctional facilities has continued to rise. One challenge is the difficulty of coordinating Gladue programs, as each province and territory is responsible for the implementation of the principles within its jurisdiction. This has led to great differences in the availability of programming and Gladue reports across the country. A lack of funding and resources for Gladue programming and reports has also been a consistent obstacle nationwide. A final obstacle are provisions in the Code that require mandatory minimum sentences for certain criminal acts. These provisions constrain the discretion of a sentencing judge and may interfere with the application of the Gladue principles.

Read the full text of the Background Paper: Indigenous People and Sentencing in Canada

Author: Graeme McConnell, Library of Parliament