2. Background

2.1 Initial tests of the Gladue decision

In 2000, there were three tests of the 1999 Gladue decision, two key Charter application decisions (in British Columbia and Ontario) and an appeal to the SCC regarding the application of section 718.2(e) on a sentencing decision.^{Footnote 17} These cases gave a preliminary indication of how Gladue reports and Gladue principles would be treated in Canadian courts.

In the Ontario case of R v Skedden, the defense raised a constitutional challenge against section 753 of the Criminal Code, which provides procedures for designating a dangerous offender.^{Footnote 18} The defence submitted that the lack of discretion afforded to judges when deciding dangerous offender designations for Indigenous offenders was inconsistent with section 718.2(e) and was in violation of section 15 Charter rights for equal treatment. The Ontario Superior Court dismissed the case deciding that section 753 was neither inconsistent with section 718.2(e), nor a violation of section 15 of the Charter.

In the British Colombia case of R v D.R.,⁠^{Footnote 19} the defence submitted an application to the court that under Gladue, the offender had an absolute right to a publicly funded Gladue report. The British Columbia Supreme Court dismissed the application finding no absolute right to a publicly funded Gladue report.

In R v Wells,⁠^{Footnote 20} the defence appealed a 20-month custodial sentence claiming that the sentencing judge had not properly considered the offender’s Indigenous background. The Court of Appeal of Alberta and the SCC both upheld the original sentence. The SCC decision confirmed that section 718(e) does not mean that a sentence will automatically be reduced, and that the specific circumstances of the case need to be considered along with all the sentencing principles and objectives when deciding the appropriateness of a conditional sentence.^{Footnote 21} The SCC further affirmed that a judge was not required to make evidential inquiries about the Indigenous offender outside of the evidence provided to the court. However, the sentencing judge must take into account that they are dealing with an Indigenous offender and consider this in their decision.^{Footnote 22}

2.2 Further court interpretation of Section 718.2(e) since Gladue

In 2012, the SCC in R v Ipeelee⁠^{Footnote 23} reaffirmed that when sentencing an Indigenous offender, the courts must take judicial notice of “the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.”^{Footnote 24} These factors, known as Gladue factors, can provide the necessary context for understanding and evaluating case-specific information presented by counsel. Such considerations may not necessarily result in a lower sentence but will help to determine a fit sentence.^{Footnote 25} Ipeelee clarifies that judicial consideration of the unique circumstances of an Indigenous offender is absolutely required for the proper application of the fundamental sentencing principle of proportionality.^{Footnote 26} The decision also clarified that that section 718.2(e) applies to all Indigenous sentencing decisions, including those involving serious offenders.

In the 2019 Saskatchewan Queen’s Bench decision in R v Desjarlais,⁠^{Footnote 27} a self-represented Indigenous offender requested that the province to pay for a Gladue report as they did not have the funds to pay for one. The court ruled that a pre-sentencing report (PSR)^{Footnote 28} would be sufficient to apply Gladue principles to determine a proper sentence and that it did not have the jurisdiction to order the province to pay for a Gladue report.

Most recently, the 2023 British Columbia Court of Appeal decision, R v Kehoe,⁠^{Footnote 29} to grant an appeal based on the sentencing judge failing to give meaningful effect to section 718.2(e) and Gladue principles further confirmed the SCC’s holistic rather than restrictive interpretation of the section and principles when sentencing Indigenous offenders, regardless of how connected they are to their communities, cultures and supports.

2.3 Calls to implement Gladue principles

In 2015, the Truth and Reconciliation Commission (TRC) of Canada released 94 Calls to Action (CTA)^{Footnote 30}, four of which directly relate to addressing the over-incarceration of Indigenous people. The CTAs include eliminating overrepresentation of Indigenous people in custody (CTA 30 and 38); implementation of community sanctions as alternatives to imprisonment that respond to the underlying causes of offending (CTA 31); and allowing courts to depart from mandatory minimum sentencing and restrictions on the use of conditional sentencing, with reasons (CTA 32) (Truth and Reconciliation Commission 2015).

In 2019, the National Inquiry into Missing and Murdered Indigenous Women and Girls released its Final Report, with 231 Calls for Justice (CFJ)^{Footnote 31} including four specific to section 718.2(e) and Gladue principles: consider Gladue reports a right, resource them appropriately and create national report standards that include strengths-based reporting (CFJ 5.15); provide community-based and Indigenous-specific sentencing options (CFJ 5.16); evaluate the impacts of Gladue principles and section 718.2(e) on “sentencing equity as it relates to violence against Indigenous women, girls and 2SLGBTQQIA people” (CFJ 5.16); and apply Gladue factors in a manner that meets the needs and rehabilitation of Indigenous women and 2SLGBTQQIA people (CFJ 14.5) (Missing and Murdered Indigenous Women and Girls (MMIWG), 2019).

2.4 Efforts made to respond to calls for Gladue reports

In 2020, as part of its efforts to advance reconciliation, the Government of Canada announced an investment of $49.3 million over five years to support the implementation ofGladueprinciples and Indigenous-led responses to help reduce the overrepresentation of Indigenous people in the criminal justice system. Ongoing funding of $9.7 million was identified to support the preparation of Gladue reports and the integration of Gladue report recommendations and principles in criminal justice system practices (Department of Justice Canada 2021).

Furthermore, in June 2022, Bill C-5 was enacted, amending the Criminal Code and the Controlled Drugs and Substances Act (CDSA). The amendments included the repeal of mandatory minimum penalties (MMPs) for 14 offences under the Criminal Code and all six MMPs within the CDSA. Many MMPs remain including those for murder, high treason, sexual offences including child sexual offences, impaired driving offences and some firearm offences. The amendments address the striking down of the MMPs of certain drug and firearm offences by the SCC because of cases challenging their constitutionality.^{Footnote 32} These amendments were introduced to “promote fairer and more effective responses to criminal conduct”^{Footnote 33} and in part address the impact MMPs have had on some groups of people including the over-incarceration of Indigenous people.

Footnotes

Footnote 17

R v Skedden, 2000 CanLII 22745 (ONSC); R v D.R., 2000 BSCS 136; R v Wells, 2000 SCC 10.

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Footnote 18

Criminal Code, RSC, 1985, c C-46, s. 753.

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Footnote 19

R v D.R., 2000 BCSC 136.

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Footnote 20

R v Wells, 2000 SCC 10.

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Footnote 21

Ibid at para 22.

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Footnote 22

Ibid.

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Footnote 23

R v Ipeelee, 2012 SCC 13.

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Footnote 24

R v Ipeelee, 2012 SCC 12 at para 60.

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Footnote 25

The key to a fit sentence is the proper application of the fundamental principle of proportionality in section 718.1 that requires a sentence “to be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

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Footnote 26

Although outside the scope of this review, most recently R v Kehoe, 2023 BCCA 2, further confirmed the SCC’s decision in Ipeelee regarding Gladue and the application and proper treatment of Gladue principles and jurisprudence in sentencing Indigenous offenders, which engenders a more holistic rather than restrictive interpretation of Gladue factors.

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Footnote 27

R v Desjarlais, 2019 SKQB 6.

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Footnote 28

A Pre-Sentence Report is prepared by a probation officer to assist the court decide on an appropriate sentence. The report includes information about the offender’s background.

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Footnote 29

R v Kehoe, 2023 BCCA 2.

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Footnote 30

The Truth and Reconciliation Commission was established by the Indian Residential Schools Settlement Agreement to document the experiences of Indian Residential School survivors, their families, their communities and Canadians. The final reports are based on the accounts of more than 6,500 witnesses over a six-year period (2007-2015) and include 94 calls to action to advance reconciliation between Indigenous people and Canadians. Available at: https://nctr.ca/records/reports/#trc-reports.

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Footnote 31

National Inquiry into Missing and Murdered Indigenous Women and Girls examined “the underlying social, economic, cultural, institutional, and historical causes that contribute to the ongoing violence and particular vulnerabilities of Indigenous women and girls in Canada.” Between 2017 and 2019, over 2,300 survivors, family members, communities, experts, Knowledge-Keepers, and officials provided testimony and artistic expressions during the Truth Gathering Process. The final reports include 231 calls for justice and provides a pathway to addressing historical, multigenerational and intergenerational trauma; social and economic marginalization; institutional lack of will to change the status quo; and ignoring the agency and expertise of Indigenous women, girls and 2SLGBTQQIA people. Available at: https://www.mmiwg-ffada.ca/final-report/.

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Footnote 32