Constitutionalizing Gladue Rights: Critical Perspectives and Prospective Paths Forward

Abstract

While remedial sentencing practices for Indigenous accused in Canada have often been described in rights-based terms, Canadian jurisprudence has been reluctant to characterize s. 718.2(e) of the Criminal Code as an actual “right.” At the same time, front-line judges who are witnesses to — and complicit in — the systemic overincarceration of Indigenous people have created something more out of Gladue than a Criminal Code sentencing guideline. Indeed, they have followed our apex Court’s direction that “application of the Gladue principles is required in every case involving an Aboriginal offender.” Following a few recent expansions of Gladue into yet more spheres of the administration of colonial justice, this paper investigates whether there is utility in reconceiving Gladue as a Charter right. While the substantive and theoretical criticisms of the legal policy mechanism of Gladue are valid, binding judicial and administrative decision-makers with a Charter responsibility to consider the particular circumstances of Indigenous realities when liberty interests of an accused are at stake can serve to strengthen the check on colonial maladministration of justice.