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Gladue: Beyond Myth 95
that violence – including violence against Aboriginal women and children – is not
taken seriously. We will examine both aspects in turn.
A.
Offence Bifurcation and Sentencing Principles
With respect to the first, sections 718 and 718.1 of the Criminal Code
provide:
718. The fundamental purpose of sentencing is to contribute, along with crime prevention
initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by
imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and others from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e)
(f)
to provide reparations for harm done to the victim or the community; and
to promote a sense of responsibility in offenders, and acknowledgement of the harms
done to victims and the community;
718.1 A sentence must be proportionate to the gravity of the offence and the degree of
responsibility of the offender. 52
These provisions describe key objectives of Canadian sentencing law.
Objectives that we might associate with Aboriginal justice and restorative justice,
such as rehabilitation and reparation to victims and community, are present as
part of the general sentencing framework. There are, however, other objectives
such as denunciation, deterrence, and separation from society that can often work
at cross-purposes with the goals of restorative justice. Section 718.1 in particular
has been described by the Supreme Court as consistent with a retributive
approach to punishment, 53 in that the severity of the sentence should correlate to
the perceived seriousness and moral blameworthiness of the offence.
What is noticeable upon a review of reported cases in Manitoba, as in other
jurisdictions, 54 is that some offences are categorically deemed so serious, or
aggravating factors seen to cast the offences in such a negative light, as to render
Gladue inapplicable. For example, in R v Wilson, the Aboriginal accused was
sentenced to 20 months for dangerous driving. 55 The accused’s past criminal
record included a long series of traffic offences, including several speeding tickets,
and a past dangerous driving charge. Judge Chartier found that this past record
was not only a significant aggravating factor, but also indicated that the accused
simply had no sense of self-control while behind the wheel. In the court’s view,
Gladue factors had no role in this lack of self-control, and thus the judge felt that
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Supra note 4 at ss 718 and 718.1.
R v M (CA), [1996] 1 SCR 500, [1996] SCJ No 28.
Kent Roach, “One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal”
(2009) 54 Crim LQ 470.
R v Wilson, [2001] MJ No 179, 49 WCB (2d) 492 (Man Prov Ct) Chartier J.