Canadian Criminal Sentencing/Aboriginal Principles and Factors

General Principles edit

Under s. 718.2(e) regarding the purpose and principles of sentencing, the court is required to consider all reasonable alternatives to imprisonment, with particular attention to Aboriginal offenders. [1]

The leading case of R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 set the basis for the interpretation of s.718.2(e) and the sentencing of aboriginal offenders.

Section 718.2(e), requires courts to use a different approach to sentencing for aboriginal offenders. The court must consider:[2]

  1. the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the Courts (such as systemic disadvantages, discrimination and other factors) and
  2. the effectiveness of the sentencing by looking at the types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender because of his or her particular aboriginal heritage or connection.

This section "suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction."[3]

The court must consider whether imprisonment to denounce or deter "would be meaningful to the community of which the offender is a member."[4]

The aboriginal heritage factor will play a role in all offences by offenders, no matter how serious.[5] However, aboriginal factors will play less of a role for the most serious offences where the emphasis must be on the protection of the public, denunciation and deterrence.[6]

There is no need of proving a causal connection between the offence and the accused's aboriginal background.[7]

Where imprisonment is necessary, the length may be less due to the aboriginal heritage factors, however, where the offence is "more violence and serious" it is "more likely" that the terms of imprisonment will be close to or the same length as a non-aboriginal offender. [8]

Courts can take judicial notice of that Aboriginals have a long-standing disadvantage in Canadian society.

Prior to Gladue, section 718.2(e) was only applicable to on-reserve Aboriginals who adhere to the traditional lifestyle.

Section 718.2(e) does not provide any substantive power to impose sentences outside of the appropriate range of penalty.

Systemic factors can be evinced in the following statistics cited in R v Ipeelee at 57, 60:

  • In 1988, aboriginal persons were only 2 percent of the national population but 10 percent of federal inmates
  • In some provinces, 32 percent of the federal inmates were aboriginal persons
  • In one province, 60 percent of the provincial inmates were aboriginal persons

Courts must take judicial notice of the "history of colonialism, displacement and residential schools" and how it has translated to lower education and income, and higher rates of unemployment, suicide and incarceration.[9]

The aboriginal heritage factors ("Gladue Factors") include:

  • family circumstances
  • support network
  • residential schools
  • unemployment
  • lack of educational opportunities
  • dislocation from aboriginal communities, loneliness and community fragmentation
  • family involvement in criminal environment
  • loss of identity, culture and ancestral knowledge
  • substance abuse
  • poverty
  • racism
  • abuse
  • witness to violence

Despite the disproportionate number of imprisoned Aboriginals, courts are not to artificially reduce the aboriginal prison population for its own sake.[10]

  1. "(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders."
  2. R v Ipeelee 2012 SCC 13 at 73, 74
    R v Kakekagamick, [2006] O.J. No. 3346 (C.A.)
  3. R v Gladue at para. 37
  4. R v Gladue at para. 69
  5. R v Ipeelee
  6. R v Gladue at 78
  7. R. v. Collins, [2011] O.J. No. 978 (Ont. C.A.), at para. 32 ("There is nothing in the governing authorities that places the burden of persuasion on an Aboriginal accused to establish a causal link between the systemic and background factors and commission of the offence.")
  8. R v Gladue at 79
  9. R v Ipeelee 2012 SCC 13 at para. 60
  10. Ipeelee at 75

See Also edit