Gladue was accused of second-degree murder after she killed her fiancée with a large knife that penetrated the victim's heart. The appellant pled guilty to the lesser charge of manslaughter. The two had been arguing about infidelity and insulting one another when the incident occurred. Both of the parties were drunk at the time. Both parties were Aboriginals. The trial judge sentenced her to three years’ imprisonment. She appealed on sentence unsuccessfully to the Court of Appeal and continued her appeal to the Supreme Court.
- Were the new sentencing provisions in s.718.2(e) of the Code given ample consideration?
Cory and Iacobucci delivered the judgment of the court. They first looked at how the trial judge arrived at the three year sentence. Gladue had already started rehabilitation, and it seemed that she did not need to be deterred from acting like this in the future. She had also already apologized to the victim's family, so providing reparations for the family and community were not a large issue. She also acknowledged her wrong, so responsibility had already been shown. This is the main reasoning why the sentence was only for three years when it could have been up to life imprisonment.
Gladue claimed that s.718.2(e) of the Code had not been considered in deciding the sentence. This was the first time that this new provision of the Code was interpreted by the courts. Gladue did not come from an Aboriginal community; however, she still claims that this provision applies to her. Although the Court accepted the Court of Appeal's decision, they had more to say about the specific provision. They determined that restorative justice is very important and that this applies to Gladue even though she does not live on a reservation because the bigger problem is the disproportionate number of Aboriginals in jail. However, they also say that restorative justice isn’t the only thing that needs to be considered when sentencing Aboriginals and that some crimes are serious enough to deserve traditional punishment. They say that allowing a new trial solely on the basis of her Aboriginal status would not be in the public interest.
- Restorative justice must be given particular consideration when dealing with Aboriginal offenders; however it is not the only thing to be considered in these cases, as the traditional punitive measures must also be weighed with the facts of the case.
- Section 718.2(e) of the Code applies to Aboriginals in general, not just those who live in aboriginal communities.
- When sentencing an Aboriginal offender, the court must consider:
- the unique systemic or background factors which have played a part in bringing the offender before the court; and
- the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.