The Prairie Province Epidemic: A Cry for the Meaningful Inclusion of the Indigenous Perspective into the Sentencing of Indigenous People and Gladue

Indigenous people have been grossly over-represented in the Canadian criminal justice system. In response, Parliament enacted section 718.2(e) of the Criminal Code.1 The decision of R v Gladue mapped the parameters of section 718.2(e) and the two prongs that are to be considered whenever an Indigenous person is before the court: a) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and b) 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. 2 Despite numerous attempts to call attention to this section, Canadian courts still struggle with its implementation, especially when it comes to prong two. This thesis asserts that in order for there to be a meaningful implementation of Gladue and the sentencing of an Indigenous person, there must be a meaningful incorporation of the Indigenous perspective. This thesis also explores tables and figures on the percentage of Indigenous admissions into the criminal justice system for all provinces and territories. The purpose of this exploration is to determine how the population of Indigenous people of any given province or territory compare to that of the Indigenous youths and adults that are being admitted into the criminal justice system. Leading decisions on the issue of Gladue in the Provinces of Alberta, Saskatchewan and Manitoba were also explored, demonstrating that prong two of Gladue is still largely being ignored. However, a transition is seen in Saskatchewan with the decision of R v J.P., 2020 SKCA 52.3 The final chapter of this thesis recognizes the need for reform within the Prairie Provinces. As such, four Indigenous courts were looked at and evaluated, including the Gladue Court of Ontario, the Cknucwentn First Nations Court in Kamloops, British Columbia, the Tsuu T’ina Court of Alberta, and the Cree Court of Saskatchewan. 1 Criminal Code, RSC 1985, c C-46 [Code]. 2 R v Gladue, [1999] 1 SCR 688 at 690, 171 DLR (4th) 385 ( SCC) [Gladue].3 R v J.P., 2020 SKCA 52 (CanLII) [J.P.].

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