In Canada, indigenous women are killed in this country at a much higher rate — tragically, six times higher — than non-indigenous women. Many legal experts blame the Canadian justice system and the fact that those found guilty of the abuse or murder of indigenous women generally face less serious sentences than those convicted of crimes against non-indigenous women. “Systemically, indigenous women’s lives aren’t valued as highly,” says Ottawa defence lawyer, Michael Spratt.Of 1,329 suspicious deaths of women between 2019 and 2025, more than 25% (340) were indigenous, according to a January Investigative Journalism Bureau report recently printed in the National Post. Of the 76 cases that went to trial, 46% were convicted of manslaughter rather than first- or second-degree murder.In 97% of cases, the victim and the accused were known to each other. This raises an inconvenient truth about crime and punishment in Canada and the effect of the “Gladue principle,” which the report doesn’t once mention.R v Gladue is the 1999 Supreme Court ruling that addressed the over-representation of indigenous people in Canadian jails. It mandated that courts take into account systemic factors, including the legacy of colonialism, residential schools, and inter-generational trauma in sentencing.Such efforts have not been limited exclusively to indigenous Canadians. In updated federal bail Bill C-75, for example, the circumstances of other accused belonging to “vulnerable populations,” including black Canadians, who are “over-represented in the criminal justice system” and “disadvantaged in obtaining release,” must be taken into account. Courts regularly consider “race-based disadvantage” as a mitigating factor, including in cases of shocking violence — most recently in BC, where a woman was stabbed to death by her partner in a mall stairwell..In the United Kingdom — currently in the throes of debate about “two-tier justice” — a Labour justice minister recently challenged a “sentencing council” of bureaucrats pushing to embed special treatment-consideration of “intergenerational trauma,” primarily for black Britons. She was accused of threatening the council’s “independence.”The 2016 Canadian Missing and Murdered Women report affirmed that deterrence of violence against indigenous women must be the number-one priority. The terrible irony is that, far from deterring violence and death, the “Gladue principle” has actually entrenched two-tier justice against indigenous women in Canada and led to a painful legacy all its own.Simply put, Gladue is a major reason why indigenous offenders, including those accused of domestic and sexual violence against their indigenous partners, receive lesser sentences.This was bravely highlighted by now-retired judge Paul Bychok, who, last June, presided over R. v T.T. in the Nunavut Court of Justice. Mr. T.T. — an indigenous heavy equipment operator with a self-acknowledged “good life” — was charged with assault, sexual assault, and voyeurism against his own daughters. He had nine prior convictions for violent crimes, including two for sexual assault, six for assault, and one for sexual interference of a minor.Sentencing T.T. to eight years, Judge Bychok resisted the “totality" sentence (five to six years) proposed by the prosecutor and the “merciful" sentence (two to five years) submitted by T.T.’s defence lawyer, who argued against a transfer to a federal penitentiary in another province.Citing a Nunavut Court of Appeal case, Bychok noted the “reluctance on the part of trial judges to sentence accused persons to penitentiary time, because it means they have to leave the North.” He continued: “Denunciation and deterrence are not adequately served by a presumption that those who commit sexual offences against children and adolescents [in Nunavut] are immune from penitentiary sentences.”.On Gladue, Bychok said, “It is simply wrong to say … that Mr. so-and-so 'is an Inuk, therefore he’s entitled to a conditional sentence.' That bald assertion reduces Gladue to the very ethnic discount warned against by several courts of appeal. [Gladue] was never intended — and should not be applied as — engaging an automatic 'heritage-based discount.’"Judge Bychok noted that "Nunavut’s hundreds of victims of domestic and sexual violence are living a nightmare," and that it takes “tremendous courage” for victims in remote communities to come forward to testify, often in the presence of the family of the accused.Bychok was talking about the North, but it could be Saskatchewan. Or Manitoba. Or Ontario. In short, he said, “Far too many reported cases across the country appear to give mere lip service to … the hurt done to victims of domestic and sexual violence,” adding, “Colonialism’s legacy has affected Inuit women and girls every bit as much as Inuit men.”In December, the federal government introduced Bill C-16, the Protecting Victims Act, whose goal is to reduce violence against women and children. Called “one of the most consequential reforms in a generation,” C-16 categorizes murder motivated by hate, including femicide, as first-degree murder, even if no planning or deliberation was involved.Aside from rewriting what, for centuries, has constituted the evidentiary threshold to prove murder, the bill does not address whether Gladue — and default release or lower sentences for indigenous and other offenders — will trump those key elements of the proposed law.In R v T.T., Judge Bychok cited a female Inuk elder from Pond Inlet who told him that women are “supposed to be protected by the Charter too.” A front-line medical worker agreed: "We need our women here to be taken seriously and for offenders to stop being complacent that they will get away with their offences."Unfortunately, neither looks likely.Bronwyn Eyre is a senior fellow at the Aristotle Foundation for Public Policy and Saskatchewan’s former minister of justice and attorney general. This article appeared in a revised form in the National Post.
