The application of what are called Gladue principles has “largely failed” in Canada because of several factors including a disorganized Gladue process, limited resources for rehabilitation and “Gladue Workers,” the rise of Indigenous identity fraud and the lack of support for “victims, families and communities,” according to a report released by the Yellowhead Institute.
“The uneven application of Gladue, lack of related infrastructure, and near absent support for community justice initiatives has resulted in a process that now reproduces a myriad of harms it was initially designed to prevent,” the report, Twenty-Five Years of Gladue, released in July 2024, said.
Hayden King, one of the report’s co-authors, said neither Indigenous perpetrators nor victims of crime are being well served by the way Gladue is currently being applied.
“I mean people are really hurt by their paths through the criminal justice system and the lack of justice that communities and families are receiving in the system,” he said. “I think that’s on the one hand and on the other it’s the fact that we continue to see these incredibly disproportionate rates of incarceration among Indigenous peoples.”
The report is based on information gathered at a workshop at the Brantford Regional Indigenous Support Centre which looked at how Gladue principles are being applied on Six Nations of the Grand River in southern Ontario.
Paula Hill is the other co-author who has worked in the Six Nations justice system for more than 20 years including as a Gladue report writer.
She said it is not uncommon for an accused to misrepresent themselves as Indigenous in the hope of getting bail.
“The court itself, like the justices of the peace, they struggle to even know what to ask,” she said. “So, when somebody identifies as Indigenous, the justices of the peace tend to just accept what they say.”
Gladue is named after a 1999 Supreme Court of Canada ruling involving a Cree woman who killed her common law spouse after being provoked. The high court found that the trial judge failed to take into account Jamie Gladue’s Indigenous heritage at sentencing – a requirement in the Criminal Code of Canada.
Sec. 718.2 (e) states that “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.”
The sentencing provision was brought in by the Liberals in the mid-‘90s after statistics showed that the rate of Indigenous people being locked up in the country’s penitentiaries was on the rise.
In 2024, Indigenous men make up 32 per cent of prison population, Indigenous women make up nearly 50 per cent.
“The vision of Gladue is a system of support for offenders and communities that takes into consideration the longstanding and ongoing colonial violence experienced by Indigenous people, on and off-reserve, throughout their lives and that can lead to their involvement with the justice system,” the Yellowhead report said.
“Gladue has been interpreted to be a manifestation of restorative justice. Yet, in practice, the vision has not materialized.”
Six Nations Police Service chief Darren Montour has been highly critical of Gladue and how, he said, it is being used by those who commit serious crimes to get more lenient sentences.
“Those accused who commit these serious offences know that they’re going to get a reduced sentence based on their Indigenous heritage and to me, that’s taking advantage of the justice system,” Montour said. “They promise this, that and the other thing and like a month later, ‘here we go again.’ It’s a revolving door.”
Jonathan Rudin, a lawyer with Toronto-based Aboriginal Legal Services, said he was hoping the report would have taken a broader perspective looking at how different provinces are applying or failing to apply Gladue.
“In a number of provinces in Canada you can’t get a Gladue report,” he said. “So, well the report talks about problems with reports – getting them and certain issues in provinces where they are available – it doesn’t mention that in Manitoba and Saskatchewan there are no Gladue reports at all available. Those two provinces are a real driver in the increase in Indigenous people coming into prison.”
In the end, Hill said there is only so much the justice system can do in terms of reducing Indigenous incarceration rates and there is a serious need for improved intervention programming.
“We are seeing a prevalence mental health and addictions and it’s more like complex trauma that we’re hearing about,” she said. “The severity of mental health and addictions are literally through the roof.”
