R v Joe Prompts Question of Gladue and Sentencing Fairness


Raine Silas was murdered in early November of 2016. He was drinking rather heavily with a few people in a house and got in a boisterous argument with one Tristan Joe. The owner of the house requested that Silas and Joe continue their argument outside, and they obliged. Once outside, a physical confrontation ensued, ending when Joe struck the teenaged Silas in the head with a 2×4. Silas was taken to hospital, discharged, and died of his wounds shortly after.

Tristan Joe was sentenced to twenty months plus time served for manslaughter after a guilty plea. April Baker, the mother of Raine Silas, provided a written statement to Yukon News on October 10 which was highly critical of the sentence. Ms. Baker called it “a slap in the face” and stated that the Yukon and Canadian justice systems are “weak when it comes to dealing with Indigenous [or Aboriginal] People.” According to Yukon News, Ms. Baker referred specifically to Gladue Reports when making this criticism.

What is a Gladue Report?

R v Gladue is a Supreme Court of Canada decision from 1999. In it, Chief Judge Chisholm sets out guidelines for courts across Canada for interpreting Section 718.2(e) of the Criminal Code, which “mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.” The idea is, in Justices Cory’s and Iacobucci’s words in paragraph 93, to “ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.” The result will be, as stated in paragraph 93 of Gladue, that “the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non‑aboriginal offender for the same offence.”

A Gladue Report, then, is a document prepared by an expert on Aboriginal issues and given to the trial judge to further inform their sentencing. This will emphasize “unique circumstances” faced by Aboriginal people and will emphasize restorative justice over retributive justice. This means a focus on healing all parties instead of punishment.

Gladue and Tristan Joe

In his reasons for sentencing, Chief Judge Chisholm states at paragraph 30 that “the presence of Gladue factors may diminish the offender’s moral blameworthiness,” citing the recent British Columbia Court of Appeals case of R v Sellars as an authority. At paragraph 58, Chief Judge Chisholm again states that he “must, of course, consider the particular circumstances of Aboriginal offenders, I take into account the Gladue factors that are present with respect to Mr. Joe and consider his personal circumstances in assessing his moral blameworthiness.” This is the root of Ms. Baker’s criticism of the Canadian justice system, and her assertion that it is “weak…[in] dealing with Indigenous people.”

“The whole Yukon Territory is appalled and even angry at the abysmal sentence Tristan received,” she writes. It is no question that Gladue played a role in Tristan Joe’s sentence. Is a sentencing philosophy that produces sentences like R v Joe for Aboriginal people unfair to those loved ones the victim left behind and the community affected by the crime? This is not the place for me to attempt to answer that question. I can merely show that, on the facts, Ms. Baker is certainly entitled to ask it.

R v Joe, 2018  YKTC 38.

R v Gladue [1999], 1 SCR 688.

This  blog  post  was  written  by  a  CCLA-PBSC  RightsWatch  student.  Views expressed  do  not  necessarily  reflect  the  views  of  the  CCLA  or  PBSC.