The Place of Gladue in Constitutional Law

Abstract

While the Supreme Court of Canada has been a strong defender of the Gladue sentencing framework that it constructed under section 718.2(e) of the Criminal Code, the Court has so far declined to hold directly that the Gladue approach is constitutionally required. A majority decision in Sharma rejected one possible path to the constitutionalization of Gladue by way of section 15 of the Charter. But the Gladue principles have had a significant impact on the section 12 context, where the integration of Gladue into section 12 jurisprudence reveals much about how Gladue works in the everyday world of sentencing courts. Gladue fits well with section 12 because both protect and tolerate a highly discretionary system of sentencing law in which trial judges must be substantially free to respond to the mix of factors before them. In this system, Gladue functions as an epistemic demand but not as an exceptional law of sentencing for Indigenous people. While the Court has repeated that section 718.2(e) is aimed at reducing overrepresentation of Indigenous people in prison, it is simultaneously clear that judges must apply the universal, fundamental principle of proportionality when imposing sentences on Indigenous people. On two specific topics explored in this paper — the impact of imprisonment and the use of personal traits in reasonable hypotheticals — the Gladue approach has become highly consequential to the question of gross disproportionality under section 12 and, more generally, to the viability of mandatory minimums.