Jamie Tanis Gladue lived in Nanaimo, British Columbia, with her common law husband, Reuben Beaver. The relationship was physically abusive and both had issues with drugs and alcohol. In September 1995, on her 19th birthday, Ms. Gladue was drunk and caught her husband in bed with her sister. Ms. Gladue reacted by stabbing Mr. Beaver to death and was charged with second degree murder. Before her trial, Ms. Gladue entered a guilty plea to the lesser charge of manslaughter.
On September 3, 1996, the sentencing laws in the Criminal Code were amended to include section 718.2(e) and state:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(e) 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. (emphasis added)
Since Ms. Gladue’s sentencing hearing took place 17 months after she plead guilty, the new provisions were applied to her case. During the hearing, the judge asked Ms. Gladue’s lawyer if she was an Aboriginal. The defence lawyer said she was Cree and that she came from a regular community in northern Alberta.
The judge states in his sentencing reasons that he was unable to consider Ms. Gladue’s Aboriginal heritage largely because she was raised in an urban setting and lived off the reserve. The judge sentenced Ms. Gladue to three years in prison for manslaughter.
Ms. Gladue appealed her sentence to the British Columbia Court of Appeal and lost 2-1 in front of a three-judge panel. In the dissenting opinion, the judge writes that the focus when sentencing under section 718.2(e) should not be whether an Aboriginal offender lives or was brought up on a reserve. The judge states that Parliament changed the sentencing laws “to remedy the excessive use of incarceration … and the disproportionately high number of Aboriginal people who are incarcerated” regardless if they lived on or off a reserve. The other two judges endorsed the reasons of the sentencing judge, but since there was a dissenting opinion, Ms. Gladue automatically earned the right to have her case heard by the Supreme Court of Canada.
In their decision, the Supreme Court looked at the plain and ordinary meaning of the words in section 718.2(e) in the context of Parliament’s intent when it changed the sentencing laws. More specifically, the Court wanted to figure out what Parliament meant when it stated that judges should impose sentences “with particular attention to the circumstances of Aboriginal offenders.” The logical conclusion made by the Court is that Aboriginal offenders have unique circumstances compared to non-Aboriginal offenders. Parliament must have been aware of these circumstances otherwise sentencing Aboriginal and non-Aboriginal offenders the same would render the law pointless.
The Supreme Court also found that adding section 718.2(e) wasn’t a parliamentary exercise of simply amending and clarifying sentencing laws. The Interpretation Act states that laws should be broadly approached as remedial in nature to ensure it obtains its objective. If the purpose of section 718.2(e) is to consider the unique circumstances of Aboriginal offenders, then the remedy is to address the high number of Aboriginal people in prisons. For the law to have its intended remedial effect, judges must take these unique circumstances into consideration during sentencing.
Under section 718.2(e) and the ruling issued by the Supreme Court, judges should expect to receive pre-sentence reports detailing systemic factors and background information about an offender who is Aboriginal. The passage in the decision has led to the creation of what is commonly referred to as a Gladue Report. These special reports contain necessary details describing the unique circumstances of the Aboriginal offender, including their individual upbringing, information about their home community, and recommendations for alternatives to incarceration.
It is important to note that section 718.2(e) is not meant to give lenient sentences to Aboriginal offenders because of their background or heritage, especially when they commit violent and serious crimes. The Supreme Court recognizes that imprisonment for these offences is the only practical solution to achieve sentencing goals of deterrence and separation. It would not make sense for judges to assume that Aboriginal people and cultures don’t believe in prison sentences by virtue of their Aboriginal status.
During the course of her proceedings, Ms. Gladue completed a number of counseling and substance abuse treatment programs and expressed deeply sincere remorse for killing her husband. Doctors also discovered that Ms. Gladue was suffering from an undiagnosed thyroid condition that may have caused her to overreact in emotional situations, such as discovering her husband and sister having sex.
The ruling of the Supreme Court in Ms. Gladue’s case was released in December 1998, broadening the scope and defining the sentencing provisions in section 718.2(e). However, the Court described the nature of Ms. Gladue’s crime as a “near murder” and dismissed her appeal. By this time, Ms. Gladue had served six months in jail and was granted full parole in February 1998. Despite dismissing her appeal, the Supreme Court found that it was in the interests of justice not to order a new sentencing hearing since Ms. Gladue had taken responsibility for her crime and received treatment.
Even though Ms. Gladue plead guilty to the manslaughter charge, the fact that she was an Aboriginal person would have carried no weight to persuade a judge to enter a not guilty verdict instead. If Ms. Gladue chose to take her case to trial, her Aboriginal status alone would fail to convince a court that she should have been acquitted of the murder charge. The provisions under section 718.2(e) does not impose a duty upon judges or juries to take into consideration whether an accused person is Aboriginal when deciding if they are guilty or not guilty.
Section 718.2(e) and the reasons of the Supreme Court of Canada in Ms. Gladue’s case applies to sentencing. Judges should consider all forms of punishment other than prison for all offenders, but give special consideration to the unique circumstances of Aboriginal offenders. The law does not apply to trial procedure, findings of fact, or when a judge provides instructions to a jury.
Simply put, section 718.2(e) and the Supreme Court’s ruling in the case against Ms. Gladue does not mean an Aboriginal person charged with a crime is automatically found not guilty.
Next: The aftermath of R v Gladue and the Supreme Court’s decision in R v Ipeelee.
Richard Garrett is a third-year law student at the Bora Laskin Faculty of Law. He is a member of the M’Chigeeng First Nation and is currently on work placement at Nishnawbe-Aski Legal Services Corporation.
“The views expressed are my own and should not be considered legal advice. If you have any questions regarding your personal legal situation, you should contact a lawyer and seek independent advice.”