Aboriginal Sentencing Principles and Factors

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General Principles

Section 718.2(e) requires sentencing judges to take into account an offender's aboriginal status. It states that "[a] court that imposes a sentence shall also take into consideration...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."[1]

This provision imposes a different approach to sentencing for aboriginal offenders.[2] It "suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction."[3]

The section is in part an attempt at providing a form of affirmative action under s. 15(2) of the Charter, but not to the extent of providing an automatic deduction of sentence.[4]

Courts are required to take judicial notice of that Aboriginals have a long-standing disadvantage in Canadian society.[5]

Imposition of Incarceration

The court must consider whether imprisonment to denounce or deter "would be meaningful to the community of which the offender is a member."[6]

Sentencing for aboriginal offenders will tend to take a more restorative approach to sentencing.[7] Denunciation and deterrence can still play a part in sentencing as it is important to the community associated with the offender. [8]

Sentence Reductions

The fact that a person is aboriginal does not automatically warrant a reduction in sentence. The aboriginal factor must be considered among other factors as well and its impact will vary from case-to-case.[9]

The aboriginal sentencing factors (or "Gladue" factors) will play a role in all offences by aboriginal offenders, no matter how serious.[10] However, the 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.[11]

Where imprisonment is necessary, the length may be less due to the aboriginal heritage factors, but 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. [12]

Non-Aboriginal Disadvantaged Groups
The principles under s. 718.2(e) do not apply analogously to other historically disadvantaged groups including African-Canadians.[13] But issues of race, gender, and poverty can still be considered as mitigating factors.[14]

  1. see s. 718.2(e)states "718.2 A court that imposes a sentence shall also take into consideration the following principles:...(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders."
    First recognized for aboriginal offenders in R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688, per Cory and Iacobucci JJ
  2. Gladue, ibid.
    R v Ipeelee, 2012 SCC 13 (CanLII), per LeBel J at paras 73, 74
    R v Kakekagamick, 2006 CanLII 28549 (ON CA), [2006] OJ No 3346 (C.A.), per LaForme JA
  3. Gladue, supra, at para 37
  4. Gladue, supra, at para 88
  5. Ipeelee, supra
  6. Gladue, supra, at para 69
  7. R v Wells, 2000 SCC 10 (CanLII), [2000] 1 SCR 207, per Iacobucci J
  8. Wells, ibid.
  9. Gladue, supra, at para 88
  10. Ipeelee, supra
  11. Gladue, supra, at para 78
    R v Harry, 2013 MBCA 108 (CanLII), 303 Man.R. (2d) 39, per Hamilton JA
  12. Gladue, supra, at para 79
    R v Carrière, 2002 CanLII 41803 (ON CA), per curiam
    R v Jacko, 2010 ONCA 452 (CanLII), per Watt JA
  13. R v Borde, 2003 CanLII 4187 (ON CA), per Rosenberg JA
  14. R v Hamilton, 2004 CanLII 5549 (ON CA), per Doherty JA overturning 2003 CanLII 2862 (ON SC), per Hill J

Aboriginal Sentencing Factors ("Gladue" Factors)

See also: Pre-Sentence Reports

In sentencing aboriginal offenders, the sentencing judge must:[1]

  1. consider "Gladue factors" unless the offender "expressly waives the right" to have them considered;[2] and
  2. provide "transparent and understandable reasons" as to how, if at all, the "identified Gladue factors impacted" the sentence.

This duty requires the judge to "address explicitly an aboriginal offender's circumstances, and the systemic and background factors that contributed to those circumstances".[3]

Purpose of s. 718.2(e)
The purpose of s. 718.2(e) is the "identification of relevant factors" of the offender's aboriginal heritage that may have played a part in bringing the particular offender".[4]

The factors are not to work as "an excuse or justification for the criminal conduct." They "provide the necessary context to enable a judge to determine an appropriate sentence".[5]

When Factors Apply

The factors apply to all offences, no matter how serious they may be.[6]

Gladue factors are only "one of a group of factors that can affect the level of moral blameworthiness". [7]

Gladue does not "create an entire new system of sentencing" for aboriginal offenders.[8]

Burden

The offender does not have any burden of persuasion.[9] The judge must consider all factors "which may have played a part in bringing the particular offender before the courts".[10]

Effect of Factors

Where Gladue factors are identified they "will not dictate an automatic reduction in the sentence".[11] The factors "do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence".[12]

The factors will only have an impact on penalty where "the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized".[13]

Linking Factors to Offence
There is no need of proving a causal connection between the offence and the accused's aboriginal background.[14] The only linkage needed is by considering which factors "may have played a part in bringing the particular offender before the courts".[15]

Considerations

The aboriginal heritage factors must be considered in light of how they may have played a part in bringing the accused before the Court.[16] There is no discretion on whether to consider these factors. They must be considered in every sentencing hearing relating to an aboriginal offender.[17] Failure to undertake the duty to apply Gladue principles to an aboriginal offender is a reverseable error.[18]

The Court must consider:[19]

  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.

The systemic factors can be evinced in the following statistics:[20]

  • 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

Despite the disproportionate numbers of imprisoned aboriginals, courts are not to artificially reduce the aboriginal prison population for its own sake.[21]

The aboriginal heritage factors include:[22]

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

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.[23]

Factors such as poverty, substance abuse, lack of education, loneliness, community fragmentation, and the lack of employment opportunities" create an unbalanced ratio of imprisonment of aboriginal offenders.[24]

  1. R v Laboucane, 2016 ABCA 176 (CanLII), per curiam, at para 5
  2. Ipeelee, supra, at para 60
  3. R v Napesis, 2015 ABCA 308 (CanLII), per curiam, at para 8
  4. Laboucane, supra, at para 67
  5. Laboucane, supra, at para 71
    Ipeelee, supra, at para 83
  6. Ipeelee, supra, at para 84
    Gladue, supra, at para 79
    R v Wells, 2000 SCC 10 (CanLII), per Iacobucci J at paras 42-44
    Laboucane, supra, at para 63
  7. R v Assiniboine, 2016 SKQB 149 (CanLII), per Danyliuk J at par 74
  8. Assiniboine , at para 78
    R v Chanalquay, 2015 SKCA 141 (CanLII), per Richards CJ, at para 42
  9. Laboucane, supra , at para 63
  10. Laboucane, supra, at para 63
    Gladue, supra, at para 69
  11. Laboucane, supra at paras 2, 63
    Ipeelee, supra, at para 74
    R v Holloway, 2014 ABCA 87 (CanLII), per Berger JA, at para 42
    R v Popowich, 2013 ABCA 149 (CanLII), per Berger JA, at para 24
    R v Guimond, 2016 MBCA 18 (CanLII), per Mainella JA at paras 6-7
    R v Johnny, 2016 BCCA 61 (CanLII), per Newbury JA, at para 21 (“The fact that the sentencing judge was required to consider s 718.2(e) does not mean she was to ignore the effects of the offender’s conduct on his community ... or on the various individuals who have suffered and continue to suffer as a result of” the offence)
    cf. R v Kreko, 2016 ONCA 367 (CanLII), per Pardu JA
  12. Ipeelee, supra, at para 83
    Laboucane, supra, at para 63
  13. Ipeelee, supra, at para 83
    Laboucane, supra, at para 63
  14. R v Collins, 2011 ONCA 182 (CanLII), [2011] OJ No 978 (Ont. C.A.), per Rosenberg JA, , 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.")
    Ipeelee, supra, at para 83
    Laboucane, supra, at para 63
  15. Gladue, supra, at para 69
    Laboucane, supra, at para 63
  16. R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688, per Cory and Iacobucci JJ, at para 69
  17. Laboucane, supra, at para 63
  18. Ipeelee, supra, at para 87
    Laboucane, supra, at para 63
  19. R v Ipeelee, 2012 SCC 13 (CanLII), per LeBel J at paras 73, 74
    Kakekagamick, supra
  20. Ipeelee, supra at paras 57, 60
  21. Ipeelee, supra, at para 75
  22. Gladue, supra
  23. Ipeelee, supra, at para 60
  24. Gladue, supra at paras 65, 67

See Also