Gladue: The judicial and political reception of a promising decision

This paper examines the Supreme Court's decision in R. v. Gladue which inte rpreted the requirement in s. 718.2(e) of the Criminal Code that judges at sentencing examine alternatives to Imprisonment "with particular attention to the circumstances of aboriginal offenders". The authors argue that Gladu e is promising in its recognition of aboriginal overincarceration as a pres sing problem and of the disadvantages suffered by all aboriginal offenders including those living in an urban environment. The authors examine the rel ation between s. 718.2(e) and restorative and retributive principles of sen tencing. They also explore the relevance of s. 718.2(e) in cases of serious crimes and the role that Gladue may play in a process of net widening thro ugh extensive use of conditional sentences in cases where imprisonment woul d not normally have been imposed. The reception of Gladue in the criminal j ustice system, including the Supreme Court's subsequent six decisions conce rning conditional sentences, is also examined. Finally, the authors explore the negative reception that Gladue received in the popular media and the i nitial decision to exclude s. 718.2(e) from the bill to enact a new Youth C riminal Justice Act. The authors conclude that although it is a promising d ecision, Gladue is not likely to reduce the overincarceration of aboriginal people in Canada.