Rule of law, settler colonialism, and overrepresentation of indigenous peoples in the Canadian criminal justice (legal) system: implementation of “R. v. Gladue” in Prince Edward Island (PEI)

Abstract

The problem of overrepresentation of Indigenous peoples in the Canadian criminal justice (legal) system, particularly its prisons, has been well documented. In 1996, following a comprehensive review of the Criminal Code of Canada, federal legislation, commonly known as Bill C-41, received royal assent. One of its legislative amendments, section 718.2 (e), was, in part, introduced to remedy the overrepresentation problem, legally obligating judges to utilize incarceration as a remedy of last resort and with particular attention to the circumstances of Aboriginal offenders. In 1999, the Supreme Court of Canada (SCC) handed down the seminal “R. v. Gladue” decision, which constituted the first-time court responsibilities were set out in response to amendments made in the Criminal Code. Analytically centring settler colonialism, this project examines how section 718.2 (e) and “R. v. Gladue” has been implemented in the Province of Prince Edward Island (PEI). This research project reveals that in most jurisdictions across Canada, including PEI, remediation of the overrepresentation problem has not yet been fully realized, and, in fact, is getting worse. It explores, by way of case-law (document) analysis; interviews with key informants in the conventional adversarial Canadian criminal justice (legal) system, Indigenous Gladue Writers and Elders; the application of section 718.2 (e), “R. v. Gladue”, along with its guiding principles, and assesses how the implementation process should be operationalized in “theory,” compared to how it is currently taking place in “practice” in PEI.