The Supreme Court of Canada’s 2012 decision in R. v. Ipeelee reaffirmed that judges sentencing Indigenous offenders must consider systemic and background factors that may have contributed to bringing an offender before the courts. This consideration is known as the Gladue principle.
By any measure I can imagine, this creates manifestly unequal experiences for non-Indigenous individuals navigating the justice system - either as offenders or victims. But is the principle also based on bad science?
There’s no question that Indigenous offenders are disproportionately represented in Canada’s criminal courts and prisons. Statistics Canada tells us that the average count of Indigenous adults in federal and provincial custody in 2023/2024 was 8,734; a rate of 89 per 10,000 of their population. By contrast, the non-Indigenous rate was just 8 per 10,000 (17,563 individuals in total).
And in terms of persons accused of homicide in 2025, 8.74 of every 100,000 Indigenous people were accused, versus 0.93 of every 100,000 non-Indigenous.
The differences are striking. And I have no idea why this is happening. I’m not saying that to mask some dark suspicions: I honestly have no clue.
The rationale driving Gladue depends on assumptions about the impact of traumatic events on an Indigenous offender’s criminal liability. Specifically, an offender’s personal circumstances, including the effects of historical and systemic disadvantage, can help explain their conduct and affect the appropriate sentence.
I somehow assumed that the argument was that intergenerational trauma left modern Indigenous people with genetically reduced legal capacity. In other words, the fact that it is well established that a trauma can cause biological changes can be extended to say that those biological effects are heritable and that trauma suffered by an ancestor could directly impair the judgement of future generations.
But that’s an assumption that has not been scientifically established. This means that available evidence simply doesn’t support the popular assertion that ancestral trauma is biologically encoded and passed down through generations.
And it’s an assumption that’s also not correct in the context of Gladue. The Court didn’t establish that historical trauma automatically - and biologically - diminishes an individual’s criminal responsibility. Instead, the Court required that judges take notice of the historical and continuing effects of colonialism, displacement and residential schools. Why? Because systemic and background factors may bear on an offender’s moral blameworthiness.
Notably, the Court doesn’t require proof that an offender has inherited a measurable psychological impairment. Nor does it require proof of any specific neurological or psychological damage having an impact on the particular offence. Nevertheless, a judge is required to consider Gladue in sentencing for every relevant case.
So technically, we can correctly state that Gladue decisions don’t explicitly rely on any unproven epigenetic assumptions. But we can state that the legal framework allows courts to reduce moral blameworthiness based partly on collective historical circumstances, without the need to prove that those circumstances actually diminished the particular offender's capacity for responsible decision-making.
That’s objectively a bad thing because it creates a two-tier justice system. And it also ignores the fact that many other population groups in Canada are denied similar special treatment despite having historically experienced their own harmful “collective circumstances”.1
The problems Gladue tried to address are real. But the soft racism behind assumptions that one particular ethnicity can’t be held to the same moral standards as the rest of us is deeply damaging.
And it makes it hard for the rest of us to trust our legal system.
There’s more to read:
Should We All Enjoy Equal Representation?
My recent post “Is Canada's Federation Fair?” raised questions about the relationship between contributions to the public good and political representation. That post focused on the disconnect between Alberta’s financial assistance to the rest of the country in the form of equalization payments vs their inability to push back against attacks on their na…
Do Indigenous Canadians Benefit From Government Support?
Aside from payments for pensions and benefits through Employment and Social Development Canada and for interest payments on our debt, Canada spends more on indigenous matters than anything else.
Like descendents of survivors of the Irish Potato Famine or gas attacks in WWI trenches or the Holocaust.
Good analysis on the removal of the blindfolds of Lady Justice in the deranged dominion. Canada's apartheid is a disgrace and getting worse. If someone were tasked with setting up a demonstration project to maximize human tragedy, the Canadian Indian Reserve stands out as the winner. They are racial ghettos where to qualify for the dependency that sustains them, one must live on the reserve where no individual has property rights and lives entirely at the pleasure of a pretense of self governance empowered by maintaining apartheid and Constitutional and judicial enabled lawfare. Many reserves are located nowhere near opportunities for employment and rely on the chance of a resource sector proponent nearby to shakedown. An entire industry of grievance and theatre has attracted rent seekers who thrive while those stuck on the reserves do not. With today's institutional capture by cultural Marxism (colonizers and the oppressed), there is no electable political appetite for anything resembling reform allowing "reconciliation" involving social and economic assimilation.
I pulled subsection 718.2(e) of the Criminal Code and Justice Canada's Impact of Race and Culture Assessments page to check whether other groups are denied sentencing consideration. Subsection 718.2(e) directs courts to consider reasonable alternatives to imprisonment for all offenders, not exclusively Indigenous accused. Ottawa also funds Impact of Race and Culture Assessments across all provinces and territories at $6.64 million over five years and $1.6 million in annual ongoing funding. Justice Canada describes those pre-sentencing reports as similar to Gladue reports, informing judges of systemic racism, poverty, and social exclusion affecting Black and other racialized Canadians.