APPLYING GLADUE PRINCIPLES REQUIRES MEANINGFUL INCORPORATION OF INDIGENOUS LAWS AND PERSPECTIVES, INCLUDING CONSIDERATION OF COMMUNITY-BASED ALTERNATIVES TO INCARCERATION

Abstract

This thesis considers Canadian criminal sentencing laws and the implications of such upon Indigenous people.1 In particular, this thesis advocates for the immersion of Indigenous means of justice, including community-based solutions, into mainstream justice. Indigenous communities and people carry their own laws and legal systems to deal with criminal behaviour, including sanctions to manage behaviour. If Canada is serious about creating a justice system that works for Indigenous people in this country, Canadian laws ought to incorporate Indigenous laws.

The Supreme Court of Canada decision, R v Gladue,2 interprets the Canadian Criminal Code sentencing provision, s 718.2(e), which requires sentencing judges to consider all available sanctions, other than imprisonment, for all offenders, with particular attention to the circumstances of Aboriginal offenders.3 Gladue provided a two prong consideration for sentencing judges to follow when coming to their ultimate decision:

A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and B) The 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.4

Gladue does not create an Indigenous legal system within Canadian law however Gladue creates a passage way for Indigenous understanding to be incorporated into mainstream criminal law. Indigenous ways of justice ought to be considered during the application of Gladue. This thesis focuses on the means available to properly consider the second prong of Gladue, including community alternatives available other than incarceration. As is examined in this thesis, if sentencing judges fail to meaningfully consider the second prong of Gladue an error of law has occurred, as s 718.2(e) of the Criminal Code has not been properly applied. To avoid such error, Gladue reports and therapeutic courts assist sentencing judges, encouraging proper application of Gladue.

1 Please note throughout this thesis the term Indigenous will be used to describe the first peoples within the land mass known as Canada. Aboriginal is the term often used in Canadian law. For the purposes of this thesis, the reader should consider Indigenous and Aboriginal as interchangeable terms. Please, also note that “Canada” is a colonized title. The descriptor of Turtle Island is used to describe the land mass known commonly as Canada. 2 R v Gladue, [1999] 1 SCR 688, 171 DLR (4th) 385 (SCC). [Gladue] 3 Criminal Code, RSC 1985, c C-46, s 718.2(e). [Criminal Code] (emphasis added) Please note throughout this thesis when referring to section 718.2(e) of the Criminal Code the short form, s 718.2(e), will be used. 4 Gladue, supra note 2 at para 66.