Aboriginal Sentencing Principles and Factors

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2023. (Rev. # 95924)

General Principles

See also: Racial Identity in Sentencing

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 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."[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 partly 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 that Aboriginals have a long-standing disadvantage in Canadian society.[5]

It has been observed that the over-representation of Aboriginal offenders in prison is due to (a) substance abuse, (b) lack of education, (c) lack of employment and (d) marginalization.[6]

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."[7]

Sentencing for Aboriginal offenders will tend to take a more restorative approach to sentencing.[8] Denunciation and deterrence can still play a part in sentencing as it is important to the community associated with the offender. [9]

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.[10]

The Aboriginal sentencing factors (or "Gladue" factors) will play a role in all offences by aboriginal offenders, no matter how serious.[11] 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.[12]

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. [13]

Non-Aboriginal Disadvantaged Groups

The principles under s. 718.2(e) do not apply analogously to other historically disadvantaged groups including African-Canadians.[14] But issues of race, gender, and poverty can still be considered as mitigating factors.[15]

Gladue Report

A Gladue Report is a form of pre-sentence report that addresses the necessary Gladue factors the sentencing judge must consider. They are not expert reports.[16]

A Gladue report must have "balance and objectivity."[17] It still may make suggestions about recommended programs or sentences, however, should avoid making "strong" recommendations for specific sentences.[18]

Limitations on Application of the Principles

The principles are not to be used to provide "automatic" reduction in sentencing and does not mandate a different result due to identity.[19]

Particularly violent and serious offences will result in imprisonment for aboriginal offenders as much as everyone else.[20]

The principles are not meant to "hijack" the process to pursue other goals.[21] The sentencing process should not be considered the "primary" means of addressing aboriginal overrepresentation.[22] It has been said that the principles are not intended as a means to redress complex social problems or past wrongs.[23]

  1. ↑ see s. 718.2(e)
    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), [2012] 1 SCR 433, per LeBel J, at paras 73 to 74
    R v Kakekagamick, 2006 CanLII 28549 (ON CA), [2006] OJ No 3346, per LaForme JA
  3. ↑ Gladue, supra, at para 37
  4. ↑ Gladue, supra, at para 88
  5. ↑ Ipeelee, supra
  6. ↑ R v Borde, 2003 CanLII 4187 (ON CA), 172 CCC (3d) 225, per Rosenberg JA
    R v Anderson, 2021 NSCA 62 (CanLII), per Derrick JA
  7. ↑ Gladue, supra, at para 69
  8. ↑ R v Wells, 2000 SCC 10 (CanLII), [2000] 1 SCR 207, per Iacobucci J
  9. ↑ Wells, ibid.
  10. ↑ Gladue, supra, at para 88
  11. ↑ Ipeelee, supra
  12. ↑ Gladue, supra, at para 78
    R v Harry, 2013 MBCA 108 (CanLII), 303 Man. R. (2d) 39, per Hamilton JA
  13. ↑ Gladue, supra, at para 79
    R v Carrière, 2002 CanLII 41803 (ON CA), 164 CCC (3d) 569, per curiam
    R v Jacko, 2010 ONCA 452 (CanLII), 256 CCC (3d) 113, per Watt JA
  14. ↑ R v Borde, 2003 CanLII 4187 (ON CA), 172 CCC (3d) 225, per Rosenberg JA
  15. ↑ R v Hamilton, 2004 CanLII 5549 (ON CA), 186 CCC (3d) 129, per Doherty JA overturning 2003 CanLII 2862 (ONSC), per Hill J
  16. ↑ R v Lawson, 2012 BCCA 508 (CanLII), 294 CCC (3d) 369, per MacKenzie JA, at paras 22 26 to 28, 33
  17. ↑ Lawson, ibid.
  18. ↑ Lawson, supra, at para 28("offer suggestions or proposals about potential restorative or rehabilitative programs or sentences, and particularly those tailored to Aboriginal offenders, they should not strongly recommend specific sentences.")
  19. ↑ Gladue, supra, at para 88 ("s. 718.2(e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal")
    Wells, supra, at para 44 ("Let me emphasize that s. 718.2(e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it does not mandate, necessarily, a different result. .. s. 718.2(e) does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation, and separation")
  20. ↑ Wells, supra, at para 44 ("As a result, it will generally be the case, as a practical matter, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders")
    Gladue, supra, at para 33
  21. ↑ Ipeelee, supra, at para 68
  22. ↑ Ipeelee, supra, at para 69
  23. ↑ R v King, 2022 ONCA 665 (CanLII), per Fairburn ACJ and George JA, at para 175 ("The application of the Gladue principles in this context is not intended as a vehicle to redress broad social problems or to remedy past disadvantage")

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 mere assertion of aboriginal heritage is not sufficient to engage s. 718.2(e). As otherwise, it would create a "race-based discount on sentence."[6] It is also insufficient to merely point to the "systemic and background factors affecting Aboriginal people in Canadian society."[7]

The factors apply to all offences, no matter how serious they may be.[8]

Gladue factors are only "one of a group of factors that can affect the level of moral blameworthiness."[9]

Gladue does not "create an entire new system of sentencing" for aboriginal offenders.[10]

There is no "easily ascertained or articulated" test to determine when background should influence the ultimate sentence.[11]

Failure to apply the Gladue principles on a case involving an Aboriginal offender violates the court's statutory obligations.[12]

Linking Factors to Offence

There is no need of proving a "causal connection" between the offence and the accused's aboriginal background.[13] There is no need to "draw a straight line" between their roots and the offence.[14]

The only linkage needed is by considering which factors "may have played a part in bringing the particular offender before the courts."[15]

Accused's Connection to Aboriginal Heritage

It is an error of law to rely on "limited" role of Gladue principles on account of a "disconnection" with his aboriginal heritage.[16]

Burden

The offender does not have any burden of persuasion.[17] The judge must consider all factors "which may have played a part in bringing the particular offender before the courts."[18]

Effect of Factors

Where Gladue factors are identified they "will not dictate an automatic reduction in the sentence."[19] 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."[20]

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."[21]

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.[22] There is no discretion on whether to consider these factors. They must be considered in every sentencing hearing relating to an aboriginal offender.[23] Failure to undertake the duty to apply Gladue principles to an aboriginal offender is a reversible error.[24]

The Court must consider:[25]

  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:[26]

  • 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.[27]

The aboriginal heritage factors include:[28]

  • 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.[29]

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.[30]

  1. ↑ R v Laboucane, 2016 ABCA 176 (CanLII), 337 CCC (3d) 445, per curiam, at para 5
  2. ↑ R v Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433, per LeBel J, at para 60
  3. ↑ R v Napesis, 2015 ABCA 308 (CanLII), 607 AR 395, 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 75
  7. ↑ R v L(FH), 2018 ONCA 83 (CanLII), 360 CCC (3d) 189, per Epstein JA, at para 39
  8. ↑ Ipeelee, supra, at para 84
    Gladue, supra, at para 79
    R v Wells, 2000 SCC 10 (CanLII), [2000] 1 SCR 207, per Iacobucci J, at paras 42 to 44
    Laboucane, supra, at para 63
  9. ↑ R v Assiniboine, 2016 SKQB 149 (CanLII), 8 WWR 512, per Danyliuk J, at para 74
  10. ↑ Assiniboine, ibid., at para 78
    R v Chanalquay, 2015 SKCA 141 (CanLII), 26 CR (7th) 276, per Richards CJ, at para 42
  11. ↑ L(FH), supra, at para 38
    R v Whitehead, 2016 SKCA 165 (CanLII), 344 CCC (3d) 1, per Caldwell JA, at para 60
  12. ↑ ("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. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation")
    Ipeelee, supra at para 87 R v Kehoe, 2023 BCCA 2 (CanLII), per Marchard JA, at para 44
  13. ↑ L(FH), supra, at para 38 ("The law, reviewed above, is clear. In order to be relevant to sentencing, an offender’s Aboriginal background need not be causally connected to the offence(s) for which a sentence is being imposed.")
    R v Collins, 2011 ONCA 182 (CanLII), [2011] OJ No 978, 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
  14. ↑ L(FH), supra, at para 38
    R v Monckton, 2017 ONCA 450 (CanLII), 349 CCC (3d) 90, per Trotter JA, at para 115
  15. ↑ Gladue, supra, at para 69
    Laboucane, supra, at para 63
  16. ↑ Kehoe, supra, at para 5
  17. ↑ Laboucane, supra, at para 63
  18. ↑ Laboucane, supra, at para 63
    Gladue, supra, at para 69
  19. ↑ Laboucane, supra, at paras 2, and 63
    Ipeelee, supra, at para 74
    R v Holloway, 2014 ABCA 87 (CanLII), 308 CCC (3d) 145, per Berger JA, at para 42
    R v Popowich, 2013 ABCA 149 (CanLII), 106 WCB (2d) 652, per Berger JA, at para 24
    R v Guimond, 2016 MBCA 18 (CanLII), 26 CR (7th) 295, per Mainella JA, at paras 6 to 7
    R v Johnny, 2016 BCCA 61 (CanLII), 26 CR (7th) 304, 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), 131 OR (3d) 685, per Pardu JA
  20. ↑ Ipeelee, supra, at para 83
    Laboucane, supra, at para 63
  21. ↑ Ipeelee, supra, at para 83
    Laboucane, supra, at para 63
  22. ↑ R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688, per Cory and Iacobucci JJ, at para 69
  23. ↑ Laboucane, supra, at para 63
  24. ↑ Ipeelee, supra, at para 87
    Laboucane, supra, at para 63
  25. ↑ Ipeelee, supra, at paras 73 to 74
    Kakekagamick, supra
  26. ↑ Ipeelee, supra, at paras 57, 60
  27. ↑ Ipeelee, supra, at para 75
  28. ↑ Gladue, supra
  29. ↑ Ipeelee, supra, at para 60
  30. ↑ Gladue, supra, at paras 65, 67

See Also

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