Do Aboriginal offenders get “lighter” sentences?

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Our elected representatives in Parliament have enacted provisions in the Criminal Code that a sentencing judge must follow. Section 718.2(e) requires that judges must consider all available sentences other than imprisonment that are reasonable in the circumstances, and that they must pay particular attention to the circumstances of aboriginal offenders.

In R. v. Gladue the Supreme Court of Canada provided guidance on how sentencing judges should interpret this provision. It said that s. 718.2(e) was added to the Criminal Code in an effort to reduce the overrepresentation of aboriginal peoples in Canadian prisons and in the justice system. In 2013, for example, aboriginal peoples made up 4 percent of Canada's population but 23 percent of inmates in federal jails. The Court also recognized that aboriginal offenders’ unique circumstances may make imprisonment a less useful sanction. Nevertheless, it noted that the more violent and serious an offence may be, the more likely it is that similar terms of imprisonment will be imposed on aboriginal and non-aboriginal offenders.

The Court concluded that a judge sentencing an aboriginal offender must consider:

  • the unique systemic or background factors that may have played a part in bringing the particular aboriginal offender before the courts; and
  • the types of sentencing procedures and sanctions that may be appropriate for the offender because of his or her particular aboriginal connection or heritage.

In R. v. Ipeelee, the Supreme Court of Canada elaborated, telling judges to consider the background and systemic factors affecting aboriginal people, including the history of colonialism, displacement, and residential schools, and how that history continues to contribute to lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for aboriginal peoples. The Court said that these factors do not necessarily justify a different or lower sentence for aboriginal offenders, but they provide the necessary context in which the judge must consider all the other sentencing factors relating to a particular offender.

Information relevant to the factors identified by the Court is often presented to a judge in a “Gladue report”, a form of pre-sentence report, or as a component of a regular pre-sentence report. These reports are intended to provide individualized information about how intergenerational and systemic effects of colonialism, displacement, residential schools, poverty, unemployment and substance abuse have affected an aboriginal offender. They also include information about any realistic restorative or rehabilitative programs available.

Pre-sentence reports, including Gladue reports, help judges to craft the most appropriate sentence possible for each offender. Although judges must take the Gladue factors into account for aboriginal offenders in addition to the usual sentencing factors, this does not mean that aboriginal offenders will automatically get lighter sentences. It simply means that aboriginal offenders have unique circumstances that judges may not be aware of, so judges need additional information to ensure that they give aboriginal offenders the most appropriate sentence possible.

See FAQ for information about the different types of sentences provided by the Criminal Code, and Indigenous Courts to learn about BC’s Indigenous and First Nations courts.

This article provides general information only and should not be used authority in court proceedings or as a substitute for legal advice.