Issues Interpreting and Applying s. 718.2(e) of the Criminal Code

The overrepresentation of Aboriginal individuals in the Canadian Criminal Justice System is an important issue to be addressed in Canadian society. However, this can conflict with the proper administration of justice when a convicted individual is Aboriginal. In R v Gladue,[1] the Supreme Court of Canada (SCC) established guidelines for the application and interpretation of s. 718.2(e) of the Criminal Code[2] when sentencing Aboriginal offenders.

R v Gladue

Gladue, an Aboriginal offender, was charged with second-degree murder and subsequently pleaded guilty to manslaughter after killing her fiancée, Beaver, with a knife. Both parties had been drinking at the time of the incident. There was evidence that Beaver had subjected Gladue to physical abuse in the past.

At the Supreme Court of British Columbia, the trial judge took into account a variety of mitigating factors,[3] but also identified aggravating circumstances.[4] As a result, general deterrence and rehabilitation were both relevant goals when it came to sentencing.[5] Noting that both Gladue and Beaver were Aboriginal, but that they did not live in an Aboriginal community, the trial judge found that there were no special circumstances that should be considered as a result of their Aboriginal status, and imposed a sentence of three years’ imprisonment with a ten-year weapons prohibition because of the serious nature of the offence.[6]

Gladue appealed her sentence of the three years’ imprisonment at the Court of Appeal for British Columbia.[7] The relevant ground for appeal was that the trial judge failed to give appropriate consideration to her circumstances as an Aboriginal offender.[8] Unanimously, the Court of Appeal concluded that the trial judge erred the conclusion that s. 718.2(e) did not apply because Gladue was not living on a reserve or in a rural area. Esson JA (with Prowse JA concurring) agreed with the trial judge that there was no basis for the special consideration of Gladue’s Aboriginal background, and dismissed the appeal.

Legal Issue in Gladue

The legal issue in this appeal concerns the proper interpretation and application of s. 718.2(e) of the Criminal Code when it comes to sentencing Aboriginal offenders. It states that, when sentencing, “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.”[9]

Specifically, this case concerns whether the majority of the British Columbia Court of Appeal erred in its conclusion that the trial judge correctly applied s. 718.2(e) in the circumstances when the sentence of three years’ imprisonment was imposed.

Legal History

Section 718.2(e) was added to the Criminal Code in 1996, codifying the fundamental purpose and principles of sentencing for the first time.[10] When it comes to sentencing, there is a focus on achieving the goals of separation, specific and general deterrence, denunciation, and rehabilitation.[11] This provision encompasses the idea of restorative justice, which involves reintegration into the community, and encouraging individuals to take responsibility for their actions.[12] This provision applies to the sentencing of all offenders generally, but particularly Aboriginal offenders as a result of their overrepresentation in Canadian prisons.[13] Section 718.2(e) is often interpreted as an attempt to remedy this social problem to a certain extent.[14]

The SCC Majority Judgment

Cory and Iacobucci JJ delivered the unanimous judgment of the Court, dismissing the appeal. The Court held that it is not in the interest of justice to order a new sentencing hearing to consider Gladue’s circumstances as an Aboriginal offender because the sentence was imposed in the interest of both the appellant and society,[15] given the serious nature of the offence.[16]

In this decision, the Court set out new requirements for sentencing judges to follow when applying s. 718.2(e) of the Criminal Code. In circumstances involving an Aboriginal offender, a sentencing judge must consider:

  1. the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and

  2. the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.[17]

These considerations are not to be blindly applied to sentencing, but instead, each situation will dictate the importance of different considerations.[18] The appropriateness of a sentence will depend on the particular circumstances of the offender, offence, and the community in which it occurred.[19] Sentencing judges are to consider information specific to the individual in question, as well as general systemic and background factors.[20]

This provision applies to all Aboriginal offenders equally, regardless of where they reside or how attached to their culture they are.[21] As a result, imprisonment should be a sentence that is reserved for the most serious offences.[22]

Analysis of Judgment

The decision holds that the sentencing judge erred by limiting the application of s. 718.2(e) of the Criminal Code because Gladue was not living in a rural area or on a reserve.[23] As a result of considering individual factors that were specific to Gladue, the judge did not move on to consider the relevant systemic or background factors that may have affected Gladue’s behaviour.[24] The majority of the Court of Appeal made this same error.[25] Normally, this would result in a new sentencing hearing. The seriousness of the offence, however, is an important consideration in sentencing for any offender, regardless of Aboriginal status, and as such, the imposed sentence of three years’ imprisonment is not an unreasonable one.[26]

This poses the potential for sentencing judges to attempt to find a causal link between background and systemic factors and the commission of the offence in question, rather than simply considering these factors. It appears that the trial judge may have done this, failing to consider background and systemic factors because of a perceived lack of causational link to Gladue’s actions. Another issue that arises is the issue of inconsistent application of the principles set out in this decision when it comes to offences that are serious in nature, but less serious than a conviction of second-degree murder or manslaughter. The Court provides no guidance on this matter. Additionally, it must not be forgotten that this provision applies to all offenders generally, and not simply Aboriginal offenders. After the judgment in Gladue, it is possible that sentencing judges may fail to apply this provision in other relevant cases, and instead, its application may be unnecessarily limited to Aboriginal offenders. These issues were not addressed in Gladue, and as such, this leaves open the possibility for inconsistent application of this provision when it comes to sentencing.


The unanimous judgment in Gladue recommended sensitivity to the unique circumstances that result from Aboriginal status when sentencing Aboriginal offenders in the Criminal law. This case is important because it recommends the application of restorative justice principles for Aboriginal offenders, where appropriate, in hopes of reducing the overrepresentation of Aboriginal individuals in the Canadian prison system. Because the weighting of these considerations, and their application generally, will depend on the circumstances of each case, it is challenging to determine a predictable standard for the outcome of the application of this provision.

[1] R v Gladue, [1999] 1 SCR 688 [Gladue].

[2] Criminal Code, RSC 1985, c C-46 [Criminal Code].

[3] Gladue, supra note 1 at para 15.

[4] Ibid at para 16.

[5] Ibid at para 17.

[6] Ibid at para 18.

[7] R v Gladue, [1997] BCJ No 2333.

[8] Gladue, supra note 1 at para 20.

[9] Criminal Code, supra note 2 at s 718.2(e).

[10] Gladue, supra note 1 at para 1.

[11] Ibid at para 42.

[12] Ibid at para 43.

[13] Ibid at paras 44-46.

[14] Ibid at para 64.

[15] Ibid at para 98.

[16] Ibid at para 78.

[17] Ibid at para 66.

[18] Ibid at para 83.

[19] R v M(CA), [1996] 1 SCR 500 at p 567, per Lamer CJ.

[20] Gladue, supra note 1 at paras 83-84.

[21] Ibid at para 91.

[22] R v McDonald, [1997] SJ No 117, per Vancise JA’s dissent.

[23] Gladue, supra note 1 at para 94.

[24] Ibid.

[25] Ibid at para 95.

[26] Ibid at para 96.

About the Author

Jessica Golosky is a Juris Doctor candidate at Western University, expected to graduate in 2017. After beginning her undergraduate studies at McGill University in Montreal, Jessica obtained an Honours Bachelor of Science with high distinction from the University of Toronto. She completed a major in Psychology and minors in both Sociology and Urban Studies. She is currently in her second year of law school, and is a Managing Editor for the student-run Western Journal of Legal Studies.

Suggested Citation

Jessica Golosky, "R v Gladue: Issues Interpreting and Applying s. 718.2(e) of the Criminal Code" (2016) eDiscoveries, online: <!R-v-Gladue-Issues-Interpreting-and-Applying-s-7182e-of-the-Criminal-Code/cjds/F07B76BB-3AF8-409F-AE32-6374F0B5DC7D>.

#RvGladue #SupremeCourtofCanada #AboriginalLaw #CriminalLaw #Sentencing #RestorativeJustice #GladuePrinciples

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