Gladue Sentencing: Uneasy Answers to the Hard Problem of Aboriginal Over-Incarceration

Abstract

AUTHOR: Brian R. Pfefferle Manitoba Law Journal (2008) 32 Man. L.J. 113 -143  I. Introduction 1 Aboriginal over-representation is one of the most documented trends in the Canadian criminal justice system. There have been a number of reports, 1 studies, 2 commentaries 3 and commissions 4 that have focused on the difficulties facing Aboriginal peoples in Canadian society and subsequently in the Canadian criminal justice system. The documented materials developed over the years have all unanimously concluded that Aboriginal peoples are over-represented in the Canadian criminal justice system, and experts have subsequently concluded that something must be done to respond to this situation. 2 The first response to the over-representation of Aboriginal peoples in the criminal justice system came in 1996. The reforms to the Criminal Code 5 of that year helped create a set of guidelines for the sentencing of all offenders in the Canadian criminal justice system, with some of the provisions specifically concerned with the over-representation of Aboriginal peoples. The over-representation of Aboriginal peoples was addressed primary through section 718.2(e) of the Criminal Code which currently reads: 3 A court that imposes a sentence shall also take into consideration the following principles: