The failure of Gladue: A critical examination of Indigenous Peoples Courts in Ontario

Abstract

In 2001 the first Gladue court opened as an intensive effort to implement the Supreme Court of Canada’s 1999 Gladue decision. This decision calls for a substantive equality approach to sentencing Indigenous people that considers the role of colonialism in their overrepresentation in the legal system. However, despite Gladue and the introduction of these Indigenous Peoples’ Courts, the overincarceration of Indigenous people has continued to steadily increase over the last 25 years. Notably, these rising incarceration rates have a gendered dimension as the incarceration of Indigenous women is growing at triple that of Indigenous men. Indigenous women now account for over half of admissions to federal women’s correctional facilities. While Gladue courts have existed for more than two decades, research on how they operate remains limited with no studies examining the role of gender within them.

This dissertation addresses this gap through a critical, intersectional feminist examination of how Gladue courts operate and are understood by their court teams. The analysis draws on courtroom observation, 20 semi-structured interviews with individuals who work in the Gladue courts, and six qualitative surveys completed by judges. The data demonstrates that the criminal legal system cannot mitigate the harm of colonialism despite its efforts. Three main findings emerge within this research. Firstly, Gladue courts have been unsuccessful at reducing the overrepresentation of Indigenous women in the Canadian criminal legal system due to their failure to consider the multiple ways in which intersecting structural oppressions render women uniquely vulnerable to criminalization. Secondly, Gladue courts fail to achieve a restorative and decolonial approach because they remain embedded in the broader criminal legal system, which is rooted in colonial logics. The transformative potential of the courts is in constant tension with the broader goals and logics of punishment, marginalization, and social control. Finally, individual discretion and close working relationships among court team members are central to achieving Gladue courts’ substantive equality objectives; this often takes place informally and off-the-record through actions such as withdrawing charges. While the courts are unable to accomplish their mandate due to the inherent limitations of the criminal legal system, this failure is aggravated by the inclusion of court team members who oppose the substantive equality logics of the court and its abandonment of the foundational features of specialized courts, such as assigned court teams. This dissertation highlights several considerations for developing a decolonial approach to addressing the overincarceration of Indigenous people, including community-based Indigenous-led responses. This work contributes to ongoing sociolegal conversations about the ability of— as well as the contradictions associated with— using the criminal legal system and courts to mitigate social injustices and oppression in society. Furthermore, it contributes to broader theoretical debates on the effects of problem-solving courts on the lives of criminalized individuals located at the intersections of multiple forms of structural oppression.