Chapter 9: R v. Gladue: Sentencing and the Gendered Impacts of Colonialism

Abstract

Various models and practices of restorative justice have been in place in Canada for over a decade. During this time, much feminist commentary on restorative justice practice has focused on cases where women have been victims of crime, in particular, domestic violence and sexual assault. There has been less attention paid to cases where women themselves come into conflict with the criminal law, and the circumstances under which they may be the focus of restorative intervention. This chapter will argue that "restorative" sentencing goals and factors, as outlined by the Supreme Court of Canada in R v. Gladue and when applied to Aboriginal women, should include a gender analysis. For many Aboriginal women, systemic gender inequality is inextricably linked to racial inequality in their experiences of colonialism and it should be similarly taken into account in sentencing. Some of the markers of colonialism set out by the Supreme Court of Canada in the Gladue case are experienced disproportionately by Aboriginal women, or they are experienced in particular ways by women.

This chapter will discuss the legislative and jurisprudential framework for sentencing Aboriginals offenders in Canada. It will argue that this framework should be applied to Aboriginal women offenders in ways that account for gendered experiences of colonialism and later will apply this gendered sentencing framework to three cases: R v. Gladue, R v. Moyan, and R v. Norris. These cases fall short of systemically accounting for the ways in which race and gender interlock in the lives of Aboriginal women. In particular, they represent incident-based, individual approaches to sentencing, rather than a broad, systemic approach. These cases also provide exemplars of the broader theoretical and practical aspects of sentencing discussed in this chapter.

Keywords: restorative justice, feminist, gender analysis, women, crime, Aboriginal women, systemic gender inequality, racial inequality, colonialism, sentencing, R v. Gladue, R v. Moyan, R v. Norris, Aboriginal women, incident-based, systemic approach