*ABORIGINAL SENTENCING GLADUE

PRINCIPLES - IN A NUTSHELL*

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*ABORIGINAL SENTENCING GLADUE PRINCIPLES – IN A NUTSHELL*

This Public Service Announcement ("PSA”) explains – in a nutshell – the Canadian Aboriginal Sentencing Principles which were set out by two key decisions of the Supreme Court of Canada in 1999 (R v Gladue) and 2012 (R v Ipeelee). This PSA includes Canadian Aboriginal Actor Dakota House, and also Jonathan Rudin, a nationally eminent lawyer who appeared in the Supreme Court in R v Ipeelee – in fact you will see a number of papers he wrote referenced by the Supreme Court in that case.

Thank you to many organizations and individuals who have given us widespread accolades for this PSA – it is a public service so all may share it as much as they wish, or even embed it on a Facebook page or website – or send the link to this page.

We are giving full public access to this PSA because this issue matters to all of us – Aboriginals are 4% of the Canadian Population, yet 25% of the Federal Prison population. Jailing of aboriginal women has increased over 86% in the last 10 years – number of Aboriginals overall increased by 40% in between 2001 and 2011.

The embed code is below

This PSA includes footage from a series of educational videos done with the support of Justice Canada (Ottawa) and the Tripartite Working Group of the National Aboriginal Courtwork Program.

Why can’t the Natives just get over it? Why are they getting special treatment in the courts? Yeah, we asked those questions in the PSA.

 

We have included an excellent summary comment to the right - 'Gladue Case Comment' written by J. Rudin, Esq, who argued the Ipeelee case in the Supreme Court.

(Also in Cree on sub-page below 'Gladue Case Comment')

[ More resources in English below ]

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*ᐊbᐅrᐃgᐃᓇl ᓭᐣᑌᐣᒋᐣg glᐊduᐁ ᑊrᐃᐣᒋᑊlᐁᐢ – ᐃᐣ ᐊ ᐣuᐟᐢᐦᐁll*

ᐟᐦᐃᐢ ᑊublᐃᐨ ᓭrvᐃᒉ ᐊᐣᓄuᐣᒉᒣᐣᐟ ("ᑊᓴ”) ᐁxᑊlᐊᐃᐣᐢ ᐃᐣ ᐊ ᐣuᐟᐢᐦᐁll ᐟᐦᐁ ᒐᓇdᐃᐊᐣ ᐊbᐅrᐃgᐃᓇl ᓭᐣᑌᐣᒋᐣg ᑊrᐃᐣᒋᑊlᐁᐢ ᐧᐦᐃᐨ ᐁᐧrᐁ ᓭᐟ ᐅuᐟ bᕀ ᑐᐧ ᑫᕀ dᐁᒋᓯᐅᐣᐢ ᐅf ᐟᐦᐁ ᐢuᑊrᐁᒣ ᒍurᐟ ᐅf ᒐᓇdᐊ ᐃᐣ 1999 (r v glᐊduᐁ) ᐊᐣd 2012 (r v ᐃᐯᐁlᐁᐁ)᙮ ᐟᐦᐃᐢ ᑊᓴ ᐃᐣᐨludᐁᐢ ᒐᓇdᐃᐊᐣ ᐊbᐅrᐃgᐃᓇl ᐊᐨᑐr dᐊᑯᑕ ᐦᐅuᓭ, ᐊᐣd ᐊlᓱ jᐅᓇᐟᐦᐊᐣ rudᐃᐣ, ᐊ ᓇᑎᐅᓇllᕀ ᐁᒥᓀᐣᐟ lᐊᐤᔦr ᐧᐦᐅ ᐊᑊᐯᐊrᐁd ᐃᐣ ᐟᐦᐁ ᐢuᑊrᐁᒣ ᒍurᐟ ᐃᐣ r v ᐃᐯᐁlᐁᐁ ᐃᐣ fᐊᐨᐟ ᔪu ᐃᐧll ᓭᐁ ᐊ ᐣuᒼbᐁr ᐅf ᐸᐯrᐢ ᐦᐁ ᐧrᐅᑌ rᐁfᐁrᐁᐣᒉd bᕀ ᐟᐦᐁ ᐢuᑊrᐁᒣ ᒍurᐟ ᐃᐣ ᐟᐦᐊᐟ ᒐᓭ᙮

ᐟᐦᐊᐣᐠ ᔪu ᑐ ᒪᐣᕀ ᐅrgᐊᓂzᐊᑎᐅᐣᐢ ᐊᐣd ᐃᐣdᐃvᐃduᐊlᐢ ᐧᐦᐅ ᐦᐊvᐁ gᐃvᐁᐣ uᐢ ᐃᐧdᐁᐢᑊrᐁᐊd ᐊᐨᒍlᐊdᐁᐢ fᐅr ᐟᐦᐃᐢ ᑊᓴ ᐃᐟ ᐃᐢ ᐊ ᑊublᐃᐨ ᓭrvᐃᒉ ᓱ ᐊll ᒪᕀ ᐢᐦᐊrᐁ ᐃᐟ ᐊᐢ ᒼuᐨ ᐊᐢ ᐟᐦᐁᕀ ᐃᐧᐢᐦ, ᐅr ᐁvᐁᐣ ᐁᒼbᐁd ᐃᐟ ᐅᐣ ᐊ fᐊᒉbᐅᐅᐠ ᐸgᐁ ᐅr ᐁᐧbᓯᑌ ᐅr ᓭᐣd ᐟᐦᐁ lᐃᐣᐠ ᑐ ᐟᐦᐃᐢ ᐸgᐁ᙮

ᐁᐧ ᐊrᐁ gᐃvᐃᐣg full ᑊublᐃᐨ ᐊᐨᒉᐢᐢ ᑐ ᐟᐦᐃᐢ ᑊᓴ bᐁᒐuᓭ ᐟᐦᐃᐢ ᐃᐢᐢuᐁ ᒪᐟᑌrᐢ ᑐ ᐊll ᐅf uᐢ ᐊbᐅrᐃgᐃᓇlᐢ ᐊrᐁ 4% ᐅf ᐟᐦᐁ ᒐᓇdᐃᐊᐣ ᐳᑊulᐊᑎᐅᐣ, ᔦᐟ 25% ᐅf ᐟᐦᐁ fᐁdᐁrᐊl ᑊrᐃᓱᐣ ᐳᑊulᐊᑎᐅᐣ᙮ jᐊᐃlᐃᐣg ᐅf ᐊbᐅrᐃgᐃᓇl ᐅᐧᒣᐣ ᐦᐊᐢ ᐃᐣᐨrᐁᐊᓭd ᐅvᐁr 86% ᐃᐣ ᐟᐦᐁ lᐊᐢᐟ 10 ᔦᐊrᐢ ᐣuᒼbᐁr ᐅf ᐊbᐅrᐃgᐃᓇlᐢ ᐅvᐁrᐊll ᐃᐣᐨrᐁᐊᓭd bᕀ 40% ᐃᐣ bᐁᑌᐧᐁᐣ 2001 ᐊᐣd 2011᙮

ᐟᐦᐁ ᐁᒼbᐁd ᒍdᐁ ᐃᐢ bᐁlᐅᐤ

ᐟᐦᐃᐢ ᑊᓴ ᐃᐣᐨludᐁᐢ fᐅᐅᑕgᐁ frᐅᒼ ᐊ ᓭrᐃᐁᐢ ᐅf ᐁduᒐᑎᐅᓇl vᐃdᐁᐅᐢ dᐅᓀ ᐃᐧᐟᐦ ᐟᐦᐁ ᐢuᑊᐳrᐟ ᐅf juᐢᑎᒉ ᒐᓇdᐊ (ᐅᐟᑕᐊᐧ) ᐊᐣd ᐟᐦᐁ ᐟrᐃᐸrᑎᑌ ᐅᐧrᑭᐣg grᐅuᑊ ᐅf ᐟᐦᐁ ᓇᑎᐅᓇl ᐊbᐅrᐃgᐃᓇl ᒍurᑐᐧrᐠ ᑊrᐅgrᐊᒼ᙮

ᐧᐦᕀ ᒐᐣ’ᐟ ᐟᐦᐁ ᓇᑎvᐁᐢ juᐢᐟ gᐁᐟ ᐅvᐁr ᐃᐟ? ᐧᐦᕀ ᐊrᐁ ᐟᐦᐁᕀ gᐁᐟᑎᐣg ᐢᐯᒋᐊl ᐟrᐁᐊᐟᒣᐣᐟ ᐃᐣ ᐟᐦᐁ ᒍurᐟᐢ? ᔦᐊᐦ, ᐁᐧ ᐊᐢᑫd ᐟᐦᐅᓭ quᐁᐢᑎᐅᐣᐢ ᐃᐣ ᐟᐦᐁ ᑊᓴ᙮

ᐁᐧ  ᐦᐊvᐁ  ᐃᐣᐨludᐁd  ᐊᐣ  ᐁxᒉllᐁᐣᐟ  ᐢuᒼᒪrᕀ  ᒍᒼᒣᐣᐟ  ᑐ  ᐟᐦᐁ  rᐃgᐦᐟ     'glᐊduᐁ  ᒐᓭ  ᒍᒼᒣᐣᐟ'  ᐧrᐃᐟᑌᐣ  bᕀ  j᙮  rudᐃᐣ,  ᐁᐢq,  ᐧᐦᐅ  ᐊrguᐁd  ᐟᐦᐁ  ᐃᐯᐁlᐁᐁ  ᒐᓭ  ᐃᐣ  ᐟᐦᐁ  ᐢuᑊrᐁᒣ  ᒍurᐟ᙮

 

 

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BELOW YOU WILL FIND

1) Embed Code.

2)  Link to pdf of 'Gladue' and 'Ipeelee' cases from SCC

3)  Cree Translation note.

4)  Two Extracts from Gladue Decision  

    4(a)  Paragraph 93 Summary

    4(b)  Gladue Headnote

5)  Ipeelee Headnote

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1)  EMBED CODE

We are serious about the 'public' in Public Service Announcement - feel free to share with everyone, and if you wish to embed it on your site, here is the embed code:  

<iframe src="//player.vimeo.com/video/117986070" width="500" height="281" frameborder="0" webkitallowfullscreen mozallowfullscreen allowfullscreen></iframe> 

2)  LINK TO PDF OF CASES

The 'Gladue Principles', are a set of Aboriginal Sentencing Principles set down by the Supreme Court of Canada, initially in a case called 'R v Gladue' - hence why they are called the Gladue Principles.

We have links to the actual cases below for those who wish to read them.

‘The Gladue Principles’ refer initially to statements made in this ruling by Canada’s Supreme Court (last court of appeal in Canada), which held that it is accepted fact that Aboriginal Peoples (Native American Citizens) face racism and systemic discrimination, in and out of the legal system, and the Gladue principles discussed in this case, attempt to deal with what has become a crisis of not only inequities, but an over representation of First Nation Peoples in prison.  The Principles set out in the SCC (1999) 'Gladue' case were expanded upon in the SCC (2012) 'Ipeelee' case.  Clicking on the case names below and it will take you to a PDF of that decision.

3)  CREE TRANSLATION NOTE

As resources and money permits, we have been translating the PSA above in addition to one of the other videos in the education sequence into Cree.  It is our hope to also translate them into Dene and Blackfoot.  Once completed we will, of course, post same.

 DVD Label jpeg


 4)  Extracts from SCC Gladue Decision

 There are two extracts from the Supreme Court of Canada ("SCC”) Gladue decision.  R v Gladue, 1999 1 S.C.R. 688

1) paragraph 93 of the decision wherein the Justices themselves summarize their decision, and

2) the ‘Headnote’ which is a summary of the decision written by ‘editors’ and staff with the SCC.

These excerpts will provide you with a ‘basic’ understanding of the Gladue Principles, and to functionally understand the current status of the Aboriginal Sentencing Gladue Principles.

  4(a)  Paragraph 93 Summary within SCC Gladue Decision

GLADUE DECISIONPARAGRAPH 93

VI. Summary

(para 93)

"Let us see if a general summary can be made of what has been discussed in these reasons.

1. Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence.  

2. Section 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders. 

3. Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is 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. There is a judicial duty to give the provision’s remedial purpose real force. 

4. Section 718.2(e) must be read and considered in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. All principles and factors set out in Part XXIII must be taken into consideration in determining the fit sentence. Attention should be paid to the fact that Part XXIII, through ss. 718, 718.2(e), and 742.1, among other provisions, has placed a new emphasis upon decreasing the use of incarceration.

5. Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. How- ever, the effect of s. 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.  

6. Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider:

(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

(B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

7. In order to undertake these considerations the trial judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. In the usual course of events, additional case-specific information will come from counsel and from a pre-sentence report which takes into account the factors set out in #6, which in turn may come from representations of the relevant aboriginal community which will usually be that of the offender. The offender may waive the gathering of that information.

8. If there is no alternative to incarceration the length of the term must be carefully considered.

9. Section 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed.

10. The absence of alternative sentencing pro- grams specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved.

11. Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term "community” must be defined broadly so as to include any network of support and interaction that might be available, including in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.

12. Based on the foregoing, 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.

13. It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non- aboriginal.”


 4(b) GLADUE HEADNOTE

(FROM PUBLISHED DECISION BY THE SCC)

Jamie Tanis Gladue Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney General for Alberta and Aboriginal Legal Services of Toronto Inc. Interveners

INDEXED AS: R. v. GLADUE

File No.: 26300. 

1998: December 10; 1999: April 23.

Present: Lamer C.J. and L’Heureux-Dube ́, Gonthier, Cory, Iacobucci, Bastarache and Binnie JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law — Sentencing — Aboriginal offenders — Accused sentenced to three years’ imprisonment after pleading guilty to manslaughter — No special consideration given by sentencing judge to accused’s aboriginal background — Principles governing application of s. 718.2(e) of Criminal Code — Class of aboriginal people coming within scope of provision — Criminal Code, R.S.C., 1985, c. C-46, s. 718.2(e). 

The accused, an aboriginal woman, pled guilty to manslaughter for the killing of her common law husband and was sentenced to three years’ imprisonment. On the night of the incident, the accused was celebrating her 19th birthday and drank beer with some friends and family members, including the victim. She suspected the victim was having an affair with her older sister and, when her sister left the party, followed by the victim, the accused told her friend, "He’s going to get it. He’s really going to get it this time”. She later found the victim and her sister coming down the stairs together in her sister’s home. She believed that they had been engaged in sexual activity. When the accused and the victim returned to their townhouse, they started to quarrel. During the argument, the accused confronted the victim with his infidelity and he told her that she was fat and ugly and not as good as the others. A few minutes later, the victim fled their home. The accused ran toward him with a large knife and stabbed him in the chest. When returning to her home, she was heard saying "I got you, you fucking bastard”. There was also evidence indicating that she had stabbed the victim on the arm before he left the townhouse. At the time of the stabbing, the accused had a blood-alcohol content of between 155 and 165 milligrams of alcohol in 100 millilitres of blood.

At the sentencing hearing, the judge took into account several mitigating factors. The accused was a young mother and, apart from an impaired driving conviction, she had no criminal record. Her family was supportive and, while on bail, she had attended alcohol abuse counselling and upgraded her education. The accused was provoked by the victim’s insulting behaviour and remarks. At the time of the offence, the accused had a hyperthyroid condition which caused her to overreact to emotional situations. She showed some signs of remorse and entered a plea of guilty. The sentencing judge also identified several aggravating circumstances. The accused stabbed the deceased twice, the second time after he had fled in an attempt to escape. From the remarks she made before and after the stabbing it was clear that the accused intended to harm the victim. Further, she was not afraid of the victim; she was the aggressor. The judge considered that the principles of denunciation and general deterrence must play a role in the present circumstances even though specific deterrence was not required. He also indicated that the sentence should take into account the need to rehabilitate the accused. The judge decided that a suspended sentence or a conditional sentence of imprisonment was not appropriate in this case. He noted that there were no special circumstances arising from the aboriginal status of the accused and the victim that he should take into consideration. Both were living in an urban area off- reserve and not "within the aboriginal community as such”. The sentencing judge concluded that the offence was a very serious one, for which the appropriate sentence was three years’ imprisonment. The majority of the Court of Appeal dismissed the accused’s appeal of her sentence. 

Held: The appeal should be dismissed.

The considerations which should be taken into account by a judge sentencing an aboriginal offender have been summarized at para. 93 of the reasons for judgment. The following is a reflection of that summary. 

Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence. In that Part, s. 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders. The provision is not simply a codification of existing jurisprudence. It is remedial in nature and is designed 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. There is a judicial duty to give the provision’s remedial purpose real force. Section 718.2(e) must be read in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. In determining a fit sentence, all principles and factors set out in that Part must be taken into consideration. Attention should be paid to the fact that Part XXIII, through certain provisions, has placed a new emphasis upon decreasing the use of incarceration.

Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. The effect of s. 718.2(e), however, is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders. Section 718.2(e) directs judges to undertake the sentencing of such offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. In order to undertake these considerations the sentencing judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. In the usual course of events, additional case-specific information will come from counsel and from a pre-sentence report which takes into account the systemic or back- ground factors and the appropriate sentencing procedures and sanctions, which in turn may come from representations of the relevant aboriginal community. The offender may waive the gathering of that information. The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved.
If there is no alternative to incarceration the length of the term must be carefully considered. 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. However, s. 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed. It is also unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal. 

Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term "community” must be defined broadly so as to include any network of support and interaction that might be available, including one in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any net- work of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.

In this case, the sentencing judge may have erred in limiting the application of s. 718.2(e) to the circumstances of aboriginal offenders living in rural areas or on-reserve. Moreover, he does not appear to have considered the systemic or background factors which may have influenced the accused to engage in criminal con- duct, or the possibly distinct conception of sentencing held by the accused, by the victim’s family, and by their community. The majority of the Court of Appeal, in dis- missing the accused’s appeal, also does not appear to have considered many of the relevant factors. Although in most cases such errors would be sufficient to justify sending the matter back for a new sentencing hearing, in these circumstances it would not be in the interests of justice to order a new hearing in order to canvass the accused’s circumstances as an aboriginal offender. Both the sentencing judge and all members of the Court of Appeal acknowledged that the offence was a particularly serious one. For that offence by this offender a sentence of three years’ imprisonment was not unreasonable. More importantly, the accused was granted, subject to certain conditions, day parole after she had served six months in a correctional centre and, about a year ago, was granted full parole with the same conditions. The results of the sentence with incarceration for six months and the subsequent controlled release were in the interests of both the accused and society.


 

5) IPEELEE CASE 'HEADNOTE'

R. v. Ipeelee, 2012 SCC 13, 2012 1 S.C.R. 433

. . .
It is the sentencing judge’s duty, adopting a contextual approach, to determine which sentencing options will be proportionate to both the gravity of the offence and the degree of responsibility of the offender. Sentencing is an individual process. The severity of a given breach will ultimately depend on all of the circumstances, including the nature of the condition breached, how that condition is tied to managing the particular offender’s risk of reoffence, and the circumstances of the breach.

Section 718.2(e) of the Criminal Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e). Section 718.2(e) does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. The enactment of s.718.2(e) is a specific direction by Parliament to pay particular attention to the circumstances of Aboriginal offenders during the sentencing process because those circumstances are unique and different from those of non-Aboriginal offenders. To the extent that current sentencing practices do not further the objectives of deterring criminality and rehabilitating offenders, those practices must change so as to meet the needs of Aboriginal offenders and their communities. Sentencing judges, as front-line workers in the criminal justice system, are in the best position to re-evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination. Just sanctions are those that do not operate in a discriminatory manner.

When sentencing an Aboriginal offender, a judge must consider the factors outlined in R. v. Gladue, 1999 1 S.C.R. 688: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community. The principles from Gladue are entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section718.2(e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples.

When sentencing an Aboriginal offender, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters provide the necessary context for understanding and evaluating the case-specific information presented by counsel. However, these matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Furthermore, there is nothing in the Gladue decision which would indicate that background and systemic factors should not also be taken into account for other, non-Aboriginal offenders. The parity principle which is contained in s. 718.2(b) means that any disparity between sanctions for different offenders needs to be justified. To the extent that the application of the Gladue principles lead to different sanctions for Aboriginal offenders, those sanctions will be justified based on their unique circumstances — circumstances which are rationally related to the sentencing process. Counsel has a duty to bring individualized information before the court in every case, unless the offender expressly waives his right to have it considered. A Gladue report, which contains case-specific information, is tailored to the specific circumstances of the Aboriginal offender. A Gladue report is an indispensable sentencing tool to be provided at a sentencing hearing for an Aboriginal offender and it is also indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code.
The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. If the sentencing judge fails to apply the Gladue principles in any case involving an Aboriginal offender this would run afoul of this statutory obligation. Furthermore, the failure to apply the Gladue principles in any case would also result in a sentence that is not fit and is not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including the breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.

In the instant case of I, the courts below made several errors in principle warranting appellate intervention. The courts below erred in concluding that rehabilitation was not a relevant sentencing objective. As a result of this error, the courts below gave only attenuated consideration to I’s circumstances as an Aboriginal offender. A sentence of one year’s imprisonment should be substituted. In the instant case of L, the decision of the majority of the Court of Appeal is well founded and adequately reflects the principles and objectives of sentencing. The appeal is dismissed and the sentence of one year’s imprisonment is affirmed.


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