Risk, rights and deservedness: Navigating the tensions of Gladue, Fetal Alcohol Spectrum Disorder and settler colonialism in Canadian courts

In 2008, the Truth and Reconciliation Commission of Canada engaged in a public project of national reconciliation to address the ongoing impacts of settler colonialism including the disproportionate number of Indigenous adults and youth who are held in remand facilities awaiting trial or sentence as well as those who are convicted and sentenced to periods of incarceration. Efforts to further reconciliation by reducing Indigenous incarceration rates have relied largely on the courts and their application of a sentencing principle rooted in the Supreme Court’s ruling in R. v. Gladue [1999] 1 SCR 688. In this article, we argue that the Gladue sentencing principle is being fundamentally undermined in the courts through risk models that actively displace the very context that Gladue reports seek to illuminate. Included in the analysis are the compounding impacts facing Indigenous individuals struggling with a complex disability like Fetal Alcohol Spectrum Disorder.