Gladue, an aboriginal woman, in the evening of September 16, 1995, was celebrating her 19th birthday together with her 20-years-old common law husband and friends. During the birthday party, Gladue said that she suspected that her husband had an affair with her elder sister. When Gladue's elder sister left the party, Gladue's husband followed her. Then Gladue discovered her husband and her elder sister in the latter's home. She believed that they were engaged in sexual activity. Gladue and her husband returned to their own home, where they started quarrelling. During the quarrel Gladue approached the husband with a large knife and stabbed him in the arm and in the chest. Subsequently, the investigation had shown that Gladue had a high content of alcohol in blood.
The need to rehabilitate Gladue had also been considered by the court. However, the judges found that the fact that Gladue belonged to an aboriginal community is not enough to substitute incarceration by a suspended sentence or a conditional sentence. The sentencing court pointed out that being of an aboriginal origin, Gladue, however, lived in an urban area and not with the aboriginal community as such. The Gladue's case reached the Supreme Court of Canada. In its decision the Supreme Court pointed out that sentencing judges erred in ignoring the aboriginal status of the accused. In particular, the Court noted that aboriginals, who live in urban areas, deserve the same treatment as aboriginals living in the reserve areas. In a word, the Supreme Court found it inappropriate to ignore aboriginal status of offenders living in the urban areas, while considering a sentence.
Brief Review of the Case
The Supreme Court presented some very strong and relevant points in justifying its decision. First, the Supreme Court pointed out that s 718. 2 (e) of the Canadian Criminal Code that prescribes to pay particular attention to the circumstances of aboriginal offenders is, in fact, not only a codification of existing principles, but also remedial in nature. The remedial element, among others, includes the discretion of judges to treat sentencing of aboriginals in a different way. Some scholars view such an interpretation as recognition of Parliament's remedial purposes in introducing s. 718.2 (e) of the Criminal Code and the social context (Roach Rudin, 2000).
Second, the Supreme Court stressed upon the importance of the restorative goals of criminal justice. Thus, the Court cited s. 718 of the Criminal Code, according to which among the objective of sentencing are to provide reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. The Court further pointed out that restorative goals do not generally agree with prison sentencing. While upholding the restorative justice goals, the Supreme Court, in fact, modified the way, in which judges approach the question of sentencing of an aboriginal offender (Belknap McDonald, 2010). Belknap McDonald (2010) draw attention that the Gladue decision prescribes judges to consider the types of sentencing procedures and sanctions given the offender's aboriginal origin. In general the Gladue decision is often regarded as the one endorsing the concept of restorative justice (Roach Rudin, 2000; Tomporowski et al., 2011).
Third, the Supreme Court considered the problem of overrepresentation of aboriginal people in prison population. The Court expressed an opinion that such a situation can be a reflection of a widespread bias against aboriginal people within Canada (R v. Gladue, citing R. v. Williams). Overrepresentation of aboriginal people in the Canadian prison population and the criminal justice system became a pressing social problem that made the Parliament to provide a special treatment option for Aboriginal people (R v. Gladue). The Court specified that for this reason, s. 718.2 (e) allows special treatment of aboriginal people. Roach Rudin (2000) point out that such a position of the Supreme Court agrees with numerous public inquiries regarding overrepresentation of aboriginal people in Canadian criminal justice.
Another strong point was made regarding the inappropriateness of different treatment of aboriginal people, who leave in reserve areas, and those, who live in urban areas. Roach Rudin (2000) correctly point out that the trial judge, who sentenced Gladue to prison, was, apparently, influenced by the stereotypes and myths about aboriginal offenders. Indeed, the trial judge relied on the fact that Gladue lived not in an aboriginal community, thus, probably thinking, that she had not had strong ties with her community. It seems that the judge was influenced by the stereotype that true aboriginal people may live only in their reserves in rural areas. The Supreme Court explained that s 718.2 (e) covers all aboriginal people irrespectively of the place of residence.
Three Positive Impacts
The endorsement of the restorative justice principles is the major positive impact of the case. The upholding of restorative justice principles influenced the way in which judges decide upon the sentencing of aboriginal people. Thus, Fenning (2002) correctly points out that before the Gladue decision Canadian courts tended to interpret s 718.2 (e) as the one allowing judicial discretion in deciding whether or not to take into account the aboriginal background of an offender. The Gladue, however, made it clear that it is mandatory to take into account the aboriginal background of an offender (Fenning, 2002). One of the implications of such a requirement is that it shapes the role of restorative justice. The point is that restorative justice is more familiar to an aboriginal culture. Thus, aboriginal people are known for addressing the problem of offences through such restorative justice method as circles. Indeed, McCold (2001) points out that the circle is central to traditional aboriginal cultures and social processes. The core of the circle method is gathering an offender, victim, family and community and constructing a dialogue (Dickson-Gilmore La Prairie, 2005). In a word, one may see that by requiring judges to consider the offender's aboriginal origin, the Gladue decision creates possibilities to address the crime through restorative rather than retributive justice methods.
Another positive effect of the Gladue case is that it puts judges under an obligation to attempt to find a sentence, which is alternative to the imprisonment (Fenning, 2002). It means that Gladue facilitates the use of the non-incarceration sentencing for aboriginal people. Thus, the obligation to consider alternative methods opens a room for a more widespread use of aboriginal restorative justice principles. Also, it can be generally regarded as recognition of not only restorative justice principles, but also restorative practices which are traditional for aboriginal people. In simple terms, the Gladue case opens a path toward the recognition of the aboriginal people's rights to deal with wrongdoings in the way, they used to deal with it many years before the Europeans came to their lands.
The third positive impact is reaffirmation of equality between aboriginal people living in rural and urban areas. The decision makes a point in discussion that people of aboriginal origin living in urban areas are less aboriginal than those living in the reserve areas. In other words, the Supreme Court forbids discrimination between these categories of aboriginals. Eliminating such a shameful discrimination, the Gladue decision contributes greatly to upholding the rights of indigenous people in Canada.
Three Negative Impacts
Although Gladue is often praised for embracing the restorative justice principles, the decision has some obvious drawbacks. Ironically, favorable to aboriginal people provisions of s 718.2 (e) do not find unanimous support with aboriginal communities. Thus, some aboriginals tend to think that their restorative justice practices are too soft for the offenders. The Inuit Women's Association of Canada advocates the view that aboriginal offenders should be treated in the same way as other offenders (Fenning, 2002). The Association points out that aboriginal women and children constitute the majority of victims of aboriginal offenders (Fenning, 2002). In addition, the association argues that special treatment of aboriginal offenders ignores interests of aboriginal victims. It seems that judges share the concerns of the aboriginal victims. Thus, a study conducted by Belknap McDonald (2010) reveals that 37 per cent of judges are concerned that victims might feel pressured by defendants and the community to participate in sentencing circles rather than take the case to trial. Indeed, one may assume that the obligation of the judge to consider an alternative sentence may lead to a situation when victims are forced to participate in restorative circles against their desire.
Another concern, which is frequently raised in connection with the Gladue decision, is that while the Supreme Court encourages the restorative justice approach, especially for Aboriginal people, the shortage of community programs makes it problematic to address offenses committed by aboriginals in an effective manner.
Finally, some authors point out that the guidance provided by Gladue is too ambiguous and leaves certain questions unresolved. Thus, Fenning (2002) points out that Gladue fails to address the cases involving serious crimes. It is true that in Gladue the Supreme Court pointed out that as far as serious and violent crimes are concerned, aboriginal and non-aboriginal offenders should be sentenced in a similar way. Obviously such a position nullifies the previous position of the Court that s 718. 2 (e) is remedial in nature. In other words, the Court contradicts itself.
Outcomes of the Case
The Gladue case has a profound impact on the Canadian criminal justice system in terms of justice administration. Shortly after the Gladue decision the federal government announced its goal to eliminate aboriginal overrepresentation in the criminal justice system (Rudin, 2005). The federal government's announcement was followed by more intensive federal and provincial funding of various programs which are supposed to address the problem of overrepresentation. The Gladue Court was established in Toronto in 2001 (Rudin, 2005). The specificity of this court is that it employs a Gladue Caseworker, who writes Gladue reports, which contain information on the life circumstances of an aboriginal offender and makes certain recommendations as to a possible sentence (Rudin, 2005). However, despite these efforts, there is still no significant decrease in aboriginal representation in the Canadian criminal justice system.
Critical Analysis of the Case
The significance of Gladue is that it created legal mechanism for restorative justice, as far as aboriginal people are concerned. Prior to Gladue restorative practices of aboriginal population generally remained outside the official Canadian criminal justice. Gladue encourages the cooperation between criminal justice and informal restorative practices traditional for the aboriginal people. It is true that the effect is estimated as being insignificant. There is a need to research the reasons of failure. Perhaps, some reasons can be found in ambiguity of guidance provided by Gladue. However, the main point is that at least now, official criminal justice is required to cooperate with aboriginal restorative institutions.
Concluding Thoughts
There is no doubt that the Gladue decision is a landmark decision for Canadian criminal justice. The significance is that it endorses restorative justice approaches and recognizes the need for special treatment of aboriginal offenders. As any court decision, Gladue is not ideal: it has its limitations. The limitations include: the ambiguity of guidance, especially in cases involving violent and serious crime, the room for pressing the victim to participate in restorative circles and some others. However, despite these drawbacks, Gladue established right and just principle to rehabilitate rather than to punish. It is true that Canadian criminal justice still fails to implement the Gladue principle in a balanced, effective and appropriate way. It can be a matter of lack of experience or many other factors. However, the difference with pre-Gladue era is that now at least criminal justice has officially recognized guiding principle of restorative justice.
