Judging the person, not just the act

On March 23, 2012, in R. v. Ipeelee, the Supreme Court of Canada, six judges to one, in reasons written by Justice Louis LeBel, reaffirmed the principles of the 1999 Gladue decision. When sentencing an Indigenous person, even for a serious crime, the judge must take into account the effects of colonization, residential schools and the displacement of communities. Failing to do so is an error of law.

The decision is about sentencing, not restorative justice in the strict sense. But the Gladue approach opens the door to approaches that seek to repair relationships rather than only punish. For that, the court needs to know the person: that is the role of Gladue reports, which tell the story of their life. Yet these reports are often missing, for lack of trained writers and stable funding.

Meanwhile, overrepresentation has worsened. According to the Office of the Correctional Investigator, Indigenous people made up 18% of federal inmates in 2001, 30% in 2020 and about 32% in 2022-2023, while they represent about 5% of the Canadian population. Nearly one in two federally sentenced women is Indigenous. Indigenous organizations, judges and lawyers continue to build courts and programs that draw on each Nation's knowledge.