This chapter provides a genealogy of the Gladue–Ipeelee principle of special consideration of Indigenous circumstances at sentencing. The principle is codified in the 1996 statutory requirement that “all available sanctions other than imprisonment … should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders” (s. 718.2e of the Criminal Code of Canada). Using the Foucaultian genealogy method to produce a “history of the present,” this chapter eschews normative questions of how s. 718.2e has “failed” to reduce Indigenous over-incarceration to instead focus on how practices of “special consideration” reproduce settler-state paternalism. This chapter addresses three key components of the Gladue–Ipeelee principle: the collection of circumstances information, the characterization of those circumstances, and finally their consideration at sentencing. Part one focuses on questions of legitimacy and authority and explicates how authority and responsibility to produce Indigenous circumstances knowledge was transferred from the Department of Indian Affairs (DIA) to Indigenous Courtworker organizations in the late 1960s/early 1970s. Part two identifies how authority shapes problematization by examining the characterization of Indigenous circumstances in the two eras, finding that present-day Gladue reports articulate an Indigenous history and critique of colonialism as the root cause of Indigenous criminalization, whereas DIA reports prior to 1970 generally characterized this criminalization as a “failure to assimilate.” Part three focuses on the structural reproduction of power relations by exploring historical continuities in judicial and executive-branch consideration of Indigenous circumstances, suggesting that the Gladue–Ipeelee principle reinscribes a colonial “mercy” framework of diminished responsibility. The author discusses how the principle operates in the shadow of Indigenous over-incarceration as a form of state “recognition” and a technique of governance to encourage Indigenous participation in the settler justice system and suggests that the Gladue–Ipeelee principle produces a governing effect that reinforces settler-state authority by recirculating colonial practices and discourses of settler superiority.
I am grateful to Austin Sarat for the invitation to contribute to this special issue on law and history and to the unknown individual who recommended me for the issue in the first instance. To those who heard an early version of this chapter at the Toronto meeting of the Law and Society Association in June 2018, as well as Jennifer Bolton, Kelly Hannah-Moffat, Tony Doob, J. David Cole, and an anonymous reviewer, I thank you sincerely for your comments, which greatly enhanced my approach and thinking on this topic. I acknowledge the generous financial support I have received from the Social Sciences and Humanities Research Council of Canada, the Osgoode Society for Canadian Legal History (both the R. Roy McMurtry Fellowship in Legal History and the Theodor Kerzner Q.C. Research Grant), and the John Beattie Research Fund. This chapter is dedicated to Indigenous Courtworkers, Gladue Writers, and justice-workers whose advocacy is constrained within settler institutions.
Briggs, J. (2020), "Mercy Redux: A Genealogy of Special Consideration of Indigenous Circumstances at Sentencing in Canada, from Indian Agents to
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