Gladue was a Woman: The Importance of Gender in Restorative-Based Sentencing (From New Directions in Restorative Justice: Issues, Practice, Evaluation, P 134-150, 2005, Elizabeth Elliott and Robert M. Gordon, eds. -- See NCJ-211210)

• NCJ Number: 211216
• Author(s): Josephine Sarvarese
• Date Published: 2005
• Length: 17 pages
• Sale Source: Willan Publishing
• Publication Format: Book Chapter
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This chapter argues for an expansion of the Supreme Court of Canada's ruling in R v. Gladue--which endorsed sentencing alternatives that reflect the unique circumstances of Aboriginal (native) offenders--to include factors that are unique to Aboriginal women.

Abstract

The author argues that Tanis Gladue and other Aboriginal women involved in the criminal justice system encountered circumstances related to their gender as well as their race. In 1996, the Canadian Parliament amended the Criminal Code to include section 718.2(e), which moved sentencing from a retributive focus toward restoration and healing. Specifically, it compelled sentencing judges to consider sanctions other than imprisonment, "with particular attention to the circumstances of Aboriginal offenders." This provision received limited judicial attention until 1999, when the Supreme Court of Canada released its decision in R v. Gladue. This case was historic in its consideration of section 718.2(e) and in articulating a framework on the sentencing of Aboriginal offenders. In "Gladue," the court considered the appropriate sentence for an Aboriginal woman who fatally stabbed her common law partner and subsequently was convicted of manslaughter. The court affirmed the remedial nature of section 718.2(e), stating that one of its central objectives was to address the predominance of Aboriginal people in the justice system. The negative aspects of incarceration are even more pronounced for Aboriginal women than for Aboriginal men. The reasons range from isolation from family to the problems that emerge when physical and emotional scars inflicted by a racist society emerge in confined and repressive conditions. Of further concern is the finding that Aboriginal women are more often classified as maximum security, resulting in further restrictions. "Gladue" should be a reference point for establishing the special circumstances in sentencing that warrant alternatives to incarceration for Aboriginal women. 34 notes and 26 references