The Return of Gladue

BY BRITTNEY CHANNER

Happy Summer Everyone!

I hope everyone is enjoying this fabulous weather and truly get a chance to bask in the sunshine because sooner or later, old man winter will be back with a vengeance. This week I’d like to back track a couple years and discuss some recent updates that surround one of the first criminal cases that first caught my eye.

For those who were affiliated or knowledgeable about the Toronto Caribbean Newspaper back in 2016 would also know of Carib101 Radio which has now evolved into MyTCN Network. My first guest appearance on Carib101 on the show Hear 2 Help You, discussed the issue of carding and how the black community would be affected by such a decision. At the time, many legal representatives and those within the community offered opinions either countering the imposition of carding by police officers or praising its practicality.

Regardless of what side of the fence you were on in terms of the carding issue, my preparations for that specific show introduced me to a certain section of the criminal code that has stuck with me since; Section 718.2 (e), I’d like to call it, The Gladue Principle.

The Criminal Code of Canada is a federal legislation that sets out criminal law and procedure in Canada. In addition, it also sets up possible sentencing outcomes which vary depending on the nature of a particular crime. Within the Criminal Code, section 718.2 subsection (e), you will find that those of Aboriginal decent, which include status and non-status Indian, Inuit and Meits, living on or off a reserve have to have their cultural considerations taken into account when assessing their criminal case.

What this essentially means is that as an Aboriginal offender, a restorative justice process may be more appropriate rather than jail time when a criminal act occurs. This particular process focuses on healing those who are affected by the criminal act in question which includes the offender. In addition, this approach tries to implement viable solutions that do not consider jail time which therefore reduce the over-representation of Aboriginals with Canadian jails.

The Gladue principle stems from a real Canadian case that transpired back in 1999. A young Indigenous woman named Jamie Gladue was charged with manslaughter for killing her common law husband and was sentenced to three years imprisonment after pleading guilty. At Gladue’s sentencing hearing, the judge took into account many aggravating factors such as her lack of any serious criminal history, however the judge failed to take into consideration the traumatic past which involved the death of her mother at a young age.

Due to this, the judge ruling over the case did not apply section 718.2 (e) as per the Criminal Code and sentenced Gladue to jail time. Shortly thereafter, the Gladue Report was created, citing the Gladue case as its precedent compelling judges to look at all factors such as any form of tragic history, cultural oppression, poverty, abuse suffered and residential school attendance that may have somehow influenced or contributed to the criminal act in question.

What makes this section of the Criminal Code so important and the overall principle is that it recognizes that Aboriginal Peoples face racism and systemic discrimination in and out of the criminal law system, so the Gladue Principle attempts to deal with the inequities and overrepresentation of Aboriginals in custody by changing overall how judges sentence. The principle gives judges the discretion to use options other than imprisonment which are considered reasonable in regards to the circumstances of the crime.

Almost 20 years have passed since this case was first heard in criminal court and as of last month, new updates pertaining to this case can essentially aid in the sentencing of black offenders which is similar to the Gladue principle for Indigenous people. This update comes from a recent case of a black man from Toronto, who was caught with a loaded hand gun in 2014. The Crown attorney was hoping for a four and half year sentence in which the man appealed the decision which was then granted to him and therefore a sentence of one year was given to him instead.

To some, this decision may seem unfair however; the judge who handed down the sentence defended his decision by stating that his sentence was addressing “one small step at a time which was the problem of the disproportionate incarceration of black offenders”. Even though some accused the judge of being soft on crime with his lenient sentence, he stressed that focus on the choice to act in a criminal way may be constrained by an offender’s life’s circumstances and it is this understanding that proves why the Gladue Principle may be necessary amongst black offenders.

This does seem like a good step in the right direction when it comes to the Canadian justice system, I would love to see how this principle or something similar in nature is implemented. However, what does such a principle mean for the idea of law and justice as a whole?

I would love to hear your thoughts.