Manitoba Law Journal
Indigenous peoples; criminal justice; sentencing; social justice
In the mid-1990s, section 718.2(e) of the Criminal Code of Canada was enacted in response to the alarming over-representation of Aboriginal people in Canada’s prisons and jails. Its admonition to consider “all available sanctions other than imprisonment that are reasonable in the circumstances… with particular attention to the circumstances of Aboriginal offenders” requires, according to the Supreme Court in the leading case of R v Gladue, that justice system participants do things differently in sentencing Aboriginal people. However, in the ensuing years the level of over-representation has got worse, rather than better. There are a number of different explanations that might be offered for why this state of affairs persists. From our vantage point in Manitoba, a province that has one of the highest rates of Aboriginal incarceration in Canada, we offer a partial explanation centering on what we see as a number of persistent “Gladue myths” that operate to limit the remedial impact of s. 718.2(e) and to undermine the promise of Gladue. In the sections that follow, we briefly sketch out the situation in Manitoba with respect to Gladue implementation, before moving on to outline some Gladue myths and the reality or complexity that we see lying beneath them. We will focus on three myths: (1) that Gladue does not and should not make a difference in sentencing for serious offences; (2) that prison works (for Aboriginal people); and (3) that Aboriginal over-representation is an intractable problem that is too complex to be dealt with through Gladue. We will also offer our thoughts on some of the challenges of pursuing justice for Indigenous peoples in the current context and note some positive developments and ways forward.
David Milward & Debra Parkes, "Gladue: Beyond Myth and Towards Implementation in Manitoba" (2012) 35:1 Man LJ 84.