A Report on the Relationship between Restorative Justice and Indigenous Legal Traditions in Canada

Court Cases

1. Background to the Enactment of Sections 718-718.21

The Supreme Court of Canada reaffirmed the legitimacy of restorative justice in R. v. Gladue, and again in R. v. Ipeelee.  While the facts and entire judicial history of both decisions are beyond the scope of this report, what is important about these decisions, especially the Gladue decision, is how the Supreme Court legitimized the use of restorative justice processes, and encouraged the government to consider alternatives to incarceration, especially when sentencing Aboriginal offenders. The Supreme Court came to this conclusion by interpreting the newly established s. 718.2 (e) of the Criminal Code of Canada, suggesting this provision to mean that a duty is imposed on sentencing judges to look at an Aboriginal offender’s personal circumstances and familial history before determining a sentence, so that the sentence is able to better address those underlying factors that brought the offender into conflict with the law in the first place. The Supreme Court reaffirmed this in R. v. Ipeelee, restating that it was the intention of the Supreme Court of Canada in Gladue that sentencing judges always consider s. 718.2 (e) when they are sentencing an Aboriginal offender, regardless of the severity of the offence.