Sentencing Aboriginal offenders in Canada

6.46     Canada’s Aboriginal Peoples,[81] like Australia’s Aboriginal and Torres Strait Islander peoples, are over-represented in the prison population.[82] For example, in 2013, Canada’s Aboriginal Peoples comprised 4% of the Canadian population, but almost 25% of the prison population.[83]

6.47     Canada’s history is one of colonisation, and the impact on its original inhabitants, in many ways, mirrors the Australian experience. For example, the Canadian Royal Commission on Aboriginal Peoples acknowledged that many Canadian Aboriginal Peoples were dispossessed from their homelands, with many made wards of the state through protectionist government policies that ‘sought to obliterate their cultural and political institutions’.[84]

6.48     In Canada, police were often responsible for implementing a range of government policies, including those relating to assimilation and removal of children into residential schools.[85] The relationship between Canadian Aboriginal Peoples and police has been strained, and marked by distrust on both sides. Issues related to over and under-policing of Canadian Aboriginal Peoples remain problematic.[86] Cultural differences, poverty, the effect of intergenerational trauma and institutionalisation in residential schools, substance abuse, and social dysfunction resulting from discrimination and racism continue to result in over-representation of Aboriginal Peoples in Canadian prisons.[87]

Statutory requirement to consider Aboriginality in sentencing

6.49     Australian and Canadian sentencing approaches are not dissimilar, although there are some differences. Canadian sentencing legislation incorporates a sentencing principle that is omitted from Australian statutes: ‘to provide reparations for harm done to victims or to the community’.[88] Only the ACT and SA have a similar principle, and provide that any ‘action the offender may have taken to make reparation for injury, loss or damage resulting from the offence’ is a sentencing consideration.[89] The Canadian statute also omits punishment as a sentencing purpose.[90]

6.50     These differences—the omission of punishment and incorporation of reparation for harm done—provide a foundation for a ‘restorative’ framework in delivering justice in Canada. There are some parts of the criminal justice system in Australian jurisdictions that incorporate aspects of restorative justice,[91] and a number of Australian statutes acknowledge the impact on victims and the need for offender accountability in sentencing considerations. However there remains a focus on the retributive component of sentencing in most Australian jurisdictions.

6.51     In 1995, the Canadian Parliament amended the Criminal Code to codify the purposes and principles of sentencing. In response to the rates of Aboriginal incarceration, the amending bill included s 718.2(e). Section 718 sets out broadly the ‘Purposes and principles of sentencing’. Section 718.2(e)relevantly provides that a court that imposes a sentence shall also take into consideration the following principle:

all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.[92]

6.52     The then Minister for Justice noted the ‘sad over-representation’ of Aboriginal Peoples in Canadian prisons as the rationale for the provision.[93] The provision was considered by the Canadian Supreme Court in the case of Jamie Tanis Gladue.

Canadian common law


6.53     In this case,[94] Gladue, an Aboriginal woman, pleaded guilty to the manslaughter of her husband, whom she suspected of having an affair. After consuming alcohol at a party on her 19th birthday, the offender stabbed her husband twice with a kitchen knife, once as he attempted to flee. She appealed the three-year sentence imposed.

6.54     The Supreme Court examined the legislative and contextual background to s 718.2(e). It found the provision to be ‘remedial in nature’ and ‘is designed to ameliorate the serious problem of over-representation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing’.[95] In reaching this conclusion, the Court noted that while the parliamentary debate on the amending legislation is ‘clearly not decisive’ on s 718.2(e),[96] statements made by the Minister for Justice at the time and other members of Parliament ‘corroborate and do not contradict’ its conclusion.[97] The Court also referred to a number of reports to support its conclusion on the remedial nature of the section.

6.55     The Court stressed that sentencing is an ‘individual process’,[98] but held that the effect of s 718.2(e) is to ‘alter the method of analysis’[99] that judges must use when determining an appropriate sentence for Aboriginal persons:

Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider:
(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.[100]

6.56     The Court went further, noting that judges would require information about the accused to facilitate this process: ‘Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing’.[101]

6.57     The Court emphasised that s 718.2(e) was not to be interpreted as a ‘means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed’.[102]

6.58     The Supreme Court held that the sentencing judge and the Court of Appeal had erred in their application of s 718.2(e). However, noting the seriousness of the offence, including the aggravating factor that it involved domestic violence, the Court considered the three-year term of imprisonment was not unreasonable and dismissed the appeal.

6.59     A number of higher courts affirmed the principles set out in Gladue.[103]Nonetheless, the numbers of Aboriginal Canadians incarcerated continued to rise.


6.60     Post-Gladue, the application of s 718.2(e) and the Gladue principles varied. In 2012, the Supreme Court revisited s 718.2(e) in R v Ipeelee.[104] In a majority judgment, the Court commented that, although the provision ‘had not had a discernible impact on the over-representation of Aboriginal people in the criminal justice system’,[105] the Gladue principles‘were never expected to be a panacea’:[106]

there is some indication … from both the academic commentary and the jurisprudence, that the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s. 718.2(e) and this Court’s decision in Gladue.[107]

6.61     The Court ultimately considered that the erroneous application of the principles arose for a number of reasons. It found that, in some cases, the court required an offender to ‘establish a causal link between background factors and the … current offence’;[108] and that its application to serious or violent offences was ‘irregular and uncertain’.[109] The Court rejected that an offender needed to establish a causal link between background factors and offending; and that sentencing judges have a duty to apply s 718.2(e) and Gladue, regardless of the seriousness of the offending.[110]

6.62     The Ipeelee decision identified and addressed three key criticisms that were considered to have plagued the efficacy of the remedial provision, s 718.2(e), and the Gladue principles:

(1) sentencing is not an appropriate means of addressing over-representation; (2) the Gladue principles provide what is essentially a race-based discount for Aboriginal offenders; and (3) providing special treatment and lesser sentences to Aboriginal offenders is inherently unfair as it creates unjustified distinctions between offenders who are similarly situated, thus violating the principle of sentence parity. In my view, these criticisms are based on a fundamental misunderstanding of the operation of s 718.2(e) of the Criminal Code.[111]

6.63     In addressing each of these criticisms, the Court in Ipeelee considered that sentencing judges have an important role to play in effectively deterring criminality and rehabilitating offenders, and that where ‘current sentencing practices do not further these objectives, those practices must change so as to meet the needs of Aboriginal offenders and their communities’.[112] Noting that ‘just sanctions are those that do not operate in a discriminatory manner,[113] the Court found that Parliament’s intention in enacting the provision was that ‘nothing short of a specific direction to pay particular attention to the circumstances of Aboriginal offenders would suffice to ensure that judges undertook their duties properly’.[114]

6.64     The Court noted that Gladue explicitly rejected the argument that s 718.2(e) was an ‘affirmative action provision’[115] or an ‘invitation to engage in reverse discrimination’.[116] The Court in Ipeelee, emphasising the Gladue principles, found that ‘[t]he provision does not ask courts to remedy the over-representation of Aboriginal people in prisons by artificially reducing incarceration rates’:[117]

Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has been, and continues to be, the fundamental duty of a sentencing judge. Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2 (e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process.[118]

6.65     In response to the third criticism that utilising a different method of analysis is inherently unfair and ‘unjustifiably distinguishes between offenders who are otherwise similar’,[119] the Court rejected this, finding that it ‘ignores the distinct history of Aboriginal peoples in Canada’.[120] Noting the extensive history of reports and commissions on that history, including the experience of Aboriginal peoples with the criminal justice system, the Court considered that ‘current levels of criminality are intimately tied to the legacy of colonialism’.[121]

6.66     The Supreme Court in Ipeelee emphasised that nothing in Gladue prevents consideration of the background and systemic factors for other, non-Aboriginal offenders, noting in fact it is the opposite and that consideration of such factors is also important for a sentencing judge in the sentencing of these offenders.[122]

6.67     Ipeelee has been said to ‘represent a significant clarification of the law’[123] post-Gladue, particularly in affirming its application to all, including serious, offences.

Gladue specialist sentencing reports

6.68     Gladue reports are specialist Aboriginal sentencing reports prepared in some Canadian provinces to facilitate s 718.2(e) of the Criminal Code. Gladue reports are a way of integrating one part of specialist court processes into mainstream courts. Gladue reports are different from pre-sentence reports (PSRs). Although both provide information to a court about an offender, Gladue reports are intended to promote a better understanding of the underlying causes of offending, including the historic and cultural context of an offender. These factors may go some way toward addressing the over-representation of Aboriginal and Torres Strait Islander peoples in prison. PSRs serve a different, but related, function. Supporters of Gladue reports emphasised, for example, that simply because PSRs exist does not suggest there is no need for Gladue reports. Rather, the two would complement each other.

6.69     According to Jonathan Rudin, Program Director of Aboriginal Legal Services in Toronto, Ontario, Gladue reports are written to include the offender’s ‘voice’ and ‘story’:

when we do our Gladue reports we spend time interviewing the client and as many other people as we can … Gladue reports tend to be written in the words of the people we interview … we are not summarising what someone says, we are using their language. We don’t edit it, we don’t do anything with it, here is their story [so] what you get are the voices of the individuals who are involved in the person’s life. And certainly that’s very rare because you can go through the court system in Canada from charge to plea, and if you are an accused person you may never say a word to the court.[124]

6.70     Gladue reports are ideally prepared ‘with the help of someone who has a connection to and understands the Aboriginal community’.[125] They assist in putting the offender’s ‘particular situation into an Aboriginal context so that the judge can come up with a sentence that’s unique to you and your culture and has an emphasis on rehabilitation and healing’.[126] This context may include an examination of complex issues of an historical and cultural nature that are unique to, and prevalent in, Canadian Aboriginal communities, including intergenerational trauma, alcohol and drug addiction, family violence and abuse, and institutionalisation. As observed by Rudin:

information about things that judges may not know about, like the history of residential schools, like the impact of adoption on aboriginal peoples, the history of addictions for aboriginal peoples in the country which is different from addictions in other communities. Gladue reports also provide detailed information on the impacts of particular experiences including those specific to the person as a result of their Aboriginal heritage, community and experience.[127]

6.71     The time taken to prepare a Gladue report compared to a PSR is significantly higher, reflecting the time spent with the offender and significant others. In the Ontario context, it has been estimated that a Gladue report can take up to 20 hours to complete, compared to the eight to 10 hours for a PSR.[128]

6.72     An evaluation of a pilot in British Columbia noted a number of key differences between Gladue reports and PSRs. Gladue reports were more comprehensive, ‘specifically with respect to Gladue factors’,[129] including ‘more information about resources in rural and remote communities’,[130] and ‘options tailored to the specific needs of each person’.[131] The evaluation found that the greatest contribution Gladue reports made to the court was ‘their potential to draw concrete connections between the intergenerational impacts of colonialism (residential schools, community displacement, child apprehensions) and the person in court for sentencing’.[132]

6.73     The impact of Gladue reports in Canada varies across the provinces. Offenders in some provinces have no capacity to access a Gladue report, while other provinces have been able to establish mechanisms to facilitate the preparation of Gladue reports. Aboriginal Legal Services in Toronto, Ontario, for example, has an established program, supported by funding from Legal Aid Ontario, with trained caseworkers who work with offenders to prepare Gladue reports.

6.74     Gladue reports have been described as having a definitive impact at an individual level:

When we do a Gladue report we often see that the sentencing an individual receives is different than what, for example, the Crown and defence were thinking of going into the sentencing. So what we see is when judges have information about the circumstances of an [A]boriginal offender, when Crowns have that information, when defence counsel has that information, the sentences that people get change. So the Gladue reports make a difference on a micro level.[133]

6.75     In 2007, based on his experience in Toronto, Rudin suggested that the impact of a Gladue report is not reflected in Aboriginal incarceration rates.[134]

6.76     In 2011, the Legal Services Society (LSS) received funding from the Law Foundation of British Columbia to pilot the preparation of Gladue reports in British Columbia. An evaluation of the LSS pilot suggested that ‘Gladue reports may contribute to fewer and shorter incarceration sentences for Aboriginal people’.[135] A comparison of a sub-sample of 42 completed Gladue sentencing cases with a matched sample of 42 LSS Aboriginal client cases where there was no Gladue report, indicated that ‘fewer Gladue clients (23) received a jail sentence than their non-Gladue counterparts (32)’; and that median sentence length for Gladue clients was substantially lower than for the non-Gladue sample (18 days compared to 45 days).[136]