History of Gladue - Timeline

1994 Criminal Code provision 718.2(e) enacted.  Judges are compelled to consider options other than imprisonment, and give attention to the specific circumstances of Aboriginal offenders.

1995 Jamie Tanis Gladue, a 19-year-old Cree woman, stabbed and killed her common law husband.  Gladue was sentenced to three years in prison

1999 In R. v. Gladue, the Supreme Court of Canada considered the interpretation of 718.2(e) and directs the courts to consider restorative justice practice in lieu of incarceration, including use of healing circle with their Indigenous community members to discuss and implement methods to redress the actions of the offender.

2012 In R. v. Ipeelee, the Supreme Court further strengthens ruling of R. v. Gladue stating that it is the judges statutory duty to take into account an Indigenous offender’s circumstances, no matter what offence was committed.

Present The Gladue case led to the development of “Gladue reports”, a personal history prepared by or on behalf of offenders that outline mitigating factors for judges to consider during sentencing.  These reports are standard in Ontario, Alberta, B.C., Manitoba, and Nova Scotia.

In 1995, the Federal government enacted Bill C-41, which introduced changes to the sentencing provisions of the Criminal Code. The bill contained section 718.2(e), which is as follows;

718.2 A court that imposes a sentence shall also take into consideration the following principles:

…(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

What was unique about these changes is that this statute was the first of its kind to direct Judges to consider the circumstances of Aboriginal offenders.

The Minister of Justice, at that time, addressed the specific role that the government hoped would be played by section 718.2(e):

[T]he reason we referred specifically there to Aboriginal persons is that they are sadly overrepresented in the prison populations of Canada. I think it was the Manitoba justice inquiry that found that although aboriginal persons make up only 12% of the population of Manitoba, they comprise over 50% of the prison inmates. Nationally Aboriginal persons represent about 2% of Canada’s population, but they represent 10.6% of persons in prison. Obviously, there’s a problem here.

What we’re trying to do, particularly having regard to the initiatives in the aboriginal communities to achieve community justice, is to encourage courts to look at alternatives where its consistent with the protection of the public – alternative to jail – and not simply resort to that easy answer in every case. [ Emphasis added.] R. v. Gladue, paragraph 47

Basically, section 718.2(e) was enacted to address the systemic discrimination and historical disadvantage experienced by the Indigenous population in Canada (R v Gladue [1999] 2 CNLR 231 [Gladue]). More specifically, section 718.2(e) of the Criminal Code provides recognition of and attempts to, ameliorate the over-representation of Indigenous peoples in the Canadian criminal justice system. (R. v. Gladue)

Indian Act Timeline

1850 the Act for the Better Protection of Lands and Property of the Indians in Lower Canada

The Precursor to the Indian Act was the 1850 Act for the Better Protection of Lands and Property of the Indians in Lower Canada. The Act defined the rights held by Aboriginal peoples of Lower Canada, to their lands and resources on their lands. This included a definition, at the time, of who was defined as an “Indian”.

• All persons of Indian blood, reputed to belong to the particular body or tribe of Indians interested in Lower Canada Lands, and their descendants.
• All persons married to such Indians and residing amongst them, and their descendants
• All persons residing among such Indians, whose parents on either side were or are Indians of such body or tribe or entitled to be considered as such
• All persons adopted in infancy by any such Indians and residing in the village or upon the lands of such body or tribe of Indians, and their descendants (Government of Canada, Background on Indian registration)

1867 British North America Act.

• In section 91(24), the federal government was given responsibility for all “Indians and lands reserved or Indians”.

1869 Legal modifications

• Indian women who married non-Indians are no longer considered Indians and children of the marriage are not considered Indians under the act.
• Indian women who marry an Indian man become a member of their husband’s band (Government of Canada, Background on Indian registration)

1869 Gradual Enfranchisement Act

The Gradual Enfranchisement Act granted control of Aboriginal People that included the,

“the power to determine who was of “good moral character” and therefore deserve certain benefits, such as deciding if the widow of an enfranchised Indian “lived respectably” and could therefore keep her children in the event of the father’s death. The Act also severely restricted the governing band councils, regulated alcohol consumption and determined who would be eligible for band and treaty benefits. It also marked the beginning of gender-based restrictions to status”. (Indigenous Foundations)

1876 Indian Act

• In 1876, the Indian Act came into being. It gave Indian and Northern Affairs (called the Department of Indian Affairs, at the time) broad powers over First Nations governance, cultural practices, education, health care and identity.  In regard to identity, the Indian Act clearly defined an “Indian” as, “any male person of Indian Blood reputed to belong to a particular band.” (The Canadian Encyclopedia)

1879 Residential Schools

Residential Schools became official policy.

• The goal of Indian Residential schools was to assimilate Indians into society.
• The Canadian government operated Indian Residential schools in partnership with the Anglican, Catholic, Methodist, and Presbyterian churches, among others.
• The Canadian government was financial responsible for Indian Residential Schools.
• Indian Residential schools operated in all Canadian provinces and territories, except Prince Edward Island, New Brunswick, and Newfoundland.
• Indian Residential schools operated in Canada between the 1870s and the 1990s.
• The last Indian residential school closed in 1996.
• Children between the ages of 4-16 attended Indian Residential School.
• It is estimated that over 150,000 Indian, Inuit, and Metis children attended Indian residential school. (An Overview of the Indian Residential School System)

1884 – 1951 Ceremonies banned by the Indian Act

• The Indian Act banned ceremonies such as religious ceremonies, pow wows, the Sundance and various other cultural gatherings. Aboriginal people were arrested for performing their ceremonies.

1918 An Act to amend the Indian Act

“122A.(1)  If an Indian who holds no land in a reserve, does not reside on a reserve and does not follow the Indian mode of life, makes application to be enfranchised, and satisfies the Superintendent General that he is self-supporting and fit to be enfranchised, and surrenders all claims whatsoever to any interest in the lands of the band to which he belongs, and accepts his share of the funds at the credit of the band including the principal of the annuities of the band, to which share he would have been entitled had he been enfranchised under the foregoing sections of the Act, in full of all claims to the property of the band, or in case the band to which he belongs has no funds or principal of annuities, surrenders all claim whatsoever to any property of the band, the Governor in Council may order that such Indian be enfranchised and paid his said share if any, and from the date of such order such Indian, together with his wife and unmarried minor children, shall be held to be enfranchised.

“(2) Any unmarried Indian woman of the age of twenty-one years, and any Indian widow and her minor unmarried children, may be enfranchised in the like manner in every respect as a male Indian and his said children.

“(3) This section shall apply to the Indians in any part of Canada.” (Niganenakwemin)

1927 It becomes illegal for Aboriginal people to hire a lawyer/bring a land claim

The Indian act made it illegal for Aboriginal people and communities to bring land claims, without the government’s consent, nor hire a lawyer. Aboriginal people also could not meet in groups.

1951 An Act respecting Indians

• the Indian Register was established to record all individuals entitled to registration
• the Indian Registrar can add or delete (if they are ineligible) names from the register
• individuals can protest additions or deletions from the register
• when a male is added or deleted from the register, his wife and children are also added or deleted
• women who marry a non-Indian man are not eligible for registration, and they were removed from band lists upon marriage
• individuals are eligible for voluntary enfranchisement if they meet specific requirements
• the wife and children of a man who is enfranchising must be clearly named on the order of enfranchisement to be removed from the register or they keep their status.
• The double mother rule was introduced to remove status from grandchildren at age 21, whose mother and paternal grandmother both acquired status through marriage to an Indian (Niganenakwemin)

1985 Bill C-31, An Act to amend the Indian Act

• Women do not automatically join their husband’s band through marriage
• All enfranchisement provisions, both voluntary and involuntary, are removed and provisions are created to allow individuals, especially women who had lost status, to be reinstated as status Indians.
• Section 10 introduces the ability for Indian bands to determine their own membership codes and rules
• Children are treated equally whether they are born in our out of wedlock, and whether they are biological or adopted
• The definition of “child” included in section 2 of the Indian Act was modified to recognize a legally adopted child (not only a legally adopted Indian Child) and child adopted in accordance with Indian custom. (Niganenakwemin)

This project has been funded by the Department of Justice Canada.