Canadian sentencing law includes a specific direction to courts regarding the sentencing of Indigenous offenders, found in section 718.2(e) of the Criminal Code, and interpreted by the Supreme Court of Canada in two leading decisions, R. v. Gladue and R. v. Ipeelee. This page describes that legal framework factually, including what the provision requires, what these decisions held, and what a Gladue report generally is. It is general legal information only, not legal advice, and it does not describe or generalize about any individual offender's circumstances.
Section 718.2(e) of the Criminal Code
Section 718.2(e) directs a sentencing court to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances for all offenders, with particular attention to the circumstances of Indigenous offenders. This provision applies alongside the general purposes and principles of sentencing discussed in our overview of sentencing principles, including the fundamental principle of proportionality.
The provision is remedial in nature. Parliament introduced it, in part, in response to evidence of the significant overrepresentation of Indigenous people in Canadian prisons, and it directs courts to give particular consideration to alternatives to imprisonment where they are reasonably available.
R. v. Gladue (1999)
In R. v. Gladue, a 1999 decision, the Supreme Court of Canada held that section 718.2(e) requires sentencing judges to approach the sentencing of Indigenous offenders both as individuals and with attention to the ways their circumstances, as Indigenous people, may be different from those of other offenders. The Court directed judges to take judicial notice of certain broad systemic and background factors that have affected Indigenous people in Canada, and to consider whether a restorative approach to sentencing may be appropriate, in addition to the sanctions that would otherwise apply.
The Court was clear that section 718.2(e) does not operate as an automatic sentence reduction, and that it applies to Indigenous offenders regardless of whether they live on or off a reserve, or in an urban or rural area. The provision calls for an individualized inquiry into the specific offender's circumstances, not a general rule about outcomes.
R. v. Ipeelee (2012)
In R. v. Ipeelee, a 2012 decision, the Supreme Court of Canada reaffirmed and clarified the Gladue framework. The Court held that a sentencing judge must consider two categories of information in relation to an Indigenous offender: the unique systemic or background factors that may have played a part in bringing that particular offender before the courts, and the types of sentencing procedures and sanctions that may be appropriate given the offender's circumstances, including any connection to Indigenous heritage or community.
The Court confirmed that judges are required to take judicial notice of certain broad systemic circumstances, such as the history of colonialism and residential schools, without requiring an individual offender to prove that history in every case, while still requiring an individualized assessment of how those and other background factors relate to that offender's own circumstances. The Court also held that this framework applies to sentencing generally, including to more serious matters, and is not limited to less serious offences.
Systemic and Background Factors
The Gladue and Ipeelee decisions describe systemic and background factors as historical and social circumstances that can bear on an offender's moral blameworthiness or on the sentencing options that are appropriate in a specific case. These are described in the case law as factors connected to Canada's history, including the effects of colonialism, residential schools, and displacement, and their documented connection to outcomes such as lower educational attainment, higher rates of unemployment, and disruption to family and community structures for Indigenous people generally.
These factors are considered in relation to how they may have shaped a specific offender's own life circumstances and path to the offence. The case law is explicit that this inquiry is individualized: it does not assume that any particular Indigenous person has experienced these factors, and it does not treat Indigenous identity itself as an indicator of anything about an individual's character or likelihood of reoffending.
Gladue Reports
A Gladue report is a specialized report that can be prepared for a sentencing hearing to provide the court with information about an Indigenous offender's background and circumstances, prepared with the offender's involvement. A Gladue report generally addresses the systemic and background factors described above as they relate to that specific person, along with information relevant to sentencing options that may be available, such as community-based resources or supports.
A Gladue report is a tool for providing the individualized information the Gladue and Ipeelee decisions require; it is not a mandatory or automatic part of every sentencing involving an Indigenous offender, and whether one is prepared, and by whom, can depend on what is available in a specific jurisdiction and case. A lawyer representing an Indigenous person facing sentencing can advise on whether a Gladue report, or another way of putting relevant background information before the court, is appropriate in a specific case.
This page describes a legal framework, not any individual person. The Gladue and Ipeelee decisions require an individualized inquiry into a specific offender's circumstances, and neither case, nor this page, suggests that any assumption should be made about a particular person based on their Indigenous identity.
Scope and Limits of the Framework
Section 718.2(e), as interpreted in Gladue and Ipeelee, does not create a separate category of offence or guarantee a particular sentence. It requires courts to genuinely turn their minds to available alternatives to imprisonment and to the relevant background factors, alongside the other sentencing principles that apply to every case, including proportionality and the protection of the public. Appellate courts have addressed, in various cases, what happens when this framework is not properly considered at a sentencing hearing, which is one reason legal representation matters in this area.
Frequently Asked Questions
What does section 718.2(e) require courts to do?
It directs courts to consider all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of Indigenous offenders.
What did R. v. Gladue decide?
The Supreme Court of Canada held that sentencing judges must consider the unique systemic and background factors affecting Indigenous offenders and consider restorative approaches to sentencing where appropriate, as part of an individualized sentencing process.
What did R. v. Ipeelee add to the Gladue framework?
Ipeelee reaffirmed and clarified Gladue, confirming that courts must take judicial notice of certain systemic factors, must still individually assess how they relate to a specific offender, and that this framework applies to sentencing generally, not only to less serious offences.
Does section 718.2(e) mean an Indigenous offender automatically gets a lighter sentence?
No. The courts have been explicit that this is not an automatic reduction. It requires an individualized inquiry into relevant factors and available sanctions, alongside the other sentencing principles that apply to every case.
What is a Gladue report?
A Gladue report is a specialized report that can be prepared for sentencing to provide the court with information about an Indigenous offender's background and circumstances relevant to sentencing.
Is a Gladue report required in every case involving an Indigenous offender?
Not necessarily. Whether one is prepared depends on the case and what is available in the jurisdiction. A lawyer can advise on how relevant background information can be presented to the court in a specific case.