Gladue rights derive from Section 718.2(c) of the Criminal Code. The Supreme Court handed down its decision in R. v. Gladue in 1999. While the supreme court emphasized that 'Gladue considerations' should apply to everyone, the court stressed that Gladue Rights applied to First Nations, Inuit, and Métis peoples regardless of their status, place of residence, or background. They emerge from the unique experiences and circumstances that Indigenous peoples have experienced under Canadian settler colonialism. That is to say, Gladue rights are derived from First Nation, Inuit, and Métis peoples' unique history as the Indigenous peoples of this land and their distinct experiences as the victims of Canadian settler colonialism and their "Aboriginal Policy":
…the circumstances of [A]boriginal 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 [A]boriginal 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…. 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.” (https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1695/index.do)
Defining Systemic Factors
“The Supreme Court summarized this first category of relevant background circumstances as the “well-known” systemic and background factors that “figure prominently in the causation of crime” by Indigenous people.
It described how '[y]ears of dislocation and economic development have translated, for many [A]boriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation' Echoing the dissent of Justice Rowles, it cited Professor Quigley’s description of how these factors interact with one another in a snowball effect in order to produce Indigenous over-incarceration…
…an Indigenous person’s unique systemic and background factors may have relevance to sentencing in several conceptually distinct but overlapping ways. These include: (i) shedding light on why they ended up before the court; (ii) assessing whether prison will impact them more adversely than others; (iii) assessing whether prison is less likely to rehabilitate them; (iv) determining whether prison is likely to deter or denounce their conduct in a way that is meaningful to their community; and (v) addressing whether restorative sentencing principles ought to be given primacy to address crime prevention and bring about individual and broader social healing.”[i]
On sentencing considerations for culturally relevant sentencing:
“The Court also clarified that its general description of 'the basic tenets of traditional [A]boriginal sentencing approaches' is not meant to imply that 'all [A]boriginal offenders, victims, and communities share an identical understanding of appropriate sentences for particular offences and offenders.' It pointed out that the customs, traditions, and concepts of sentencing among Indigenous peoples ‘vary widely.’ However, the Court pointed to the importance of recognizing that ‘for many if not most [A]boriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of [A]boriginal people or [A]boriginal communities.”[ii]
[i] Ralston, Benjamin. The Gladue Principles: A Guide to the Jurisprudence. Saskatoon: BC First Nations Justice Council and USASK Indigenous Law Centre, 2021. 80-81.
[ii] Ralston, The Gladue Principles, 83.
- Impacts of Colonization
McAdam, Sylvia. Nationhood Interrupted: Revitalizing Nêhiyaw Legal Systems. Purich Publishing Limited, 2015.
“The typologies of genocide are the systems of the colonizer such as justice, education, health, religion, economy, and history. It’s critical and crucial to identify the factors leading to the current situation of the nêhiyawak [and other Indigenous peoples in what is now known as Canada]. It can be argued that colonization and genocide are still at work in the lives of Indigenous peoples…The typologies of genocide have been described as the bureaucratic apparatus of the systems. These current typologies perpetuate genocide and assimilation through the justice systems, child welfare systems, churches, education, and various other systems. For example, the education systems continue to teach that the Doctrine of Discovery is the legal basis for European ownership and claim of Indigenous lands, resources, and air.
As well, these systems contribute to and perpetuate the poverty of nêhiyawak [and other Indigenous peoples in what is now known as Canada] through limiting funding of programs offered on reserves; one of these is the child welfare system. Currently, challenges to the funding are being pursued in the tribunals of the Canadian Human Rights Commission with some measure of success. Presently, the apprehension of Indigenous children are in the thousands, and these children are placed in non-Indigenous homes, furthering the diminishment of their cultures and languages. Further, present-day symptomology found in Aboriginal peoples and societies does not constitute a distinct psychological condition, but is the well-known and long-studied response of human beings living under conditions of severe and prolonged oppression.”[iii]
To summarize: The long-term effects of oppression, dispossession, and colonial violence endured by Indigenous peoples are apparent in systemic factors that underlie rates of over-incarceration and over-representation in the justice system.
[iii] McAdam, Sylvia. Nationhood Interrupted: Revitalizing Nêhiyaw Legal Systems. Purich Publishing Limited, 2015. 82.