Sentencing Indigenous People

In section 718.2(e) of the Criminal Code, Parliament requires judges to consider all available sentences other than imprisonment that are reasonable in the circumstances and consistent with the harm done, for all offenders, and says judges must pay particular attention to the circumstances of Aboriginal offenders.

All sentences are based on a judge’s full consideration of the relevant legal principles and the appropriate range of sentence for the offence. When Aboriginal offenders are sentenced, a judge must consider certain factors related to their unique circumstances. Although this may sometimes cause an Aboriginal offender’s sentence to be reduced, that is not always the case.

The Supreme Court of Canada first interpreted section 718.2(e) in a case called R. v. Gladue. They noted that Parliament included the section in the Criminal Code in an effort to reduce the over-representation of Aboriginal peoples within both the Canadian prison population and the criminal justice system in general.

For example, in 1994, Aboriginal persons represented 2% of Canada’s population, but they represented 10.6% of the prison population. The Court also recognized that Aboriginal offenders have unique circumstances that may make imprisonment a less appropriate or less useful sanction.

The Court concluded that when sentencing an Aboriginal offender, a judge 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.

The Supreme Court of Canada provided trial judges with more guidance on how to apply those factors in R. v. Ipeelee. The Court said judges must consider the systemic and background factors affecting Aboriginal people in Canadian society, such as the history of colonialism, displacement, and residential schools. They must also consider how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples.

While these factors on their own do not necessarily justify a different or lower sentence for Aboriginal offenders, they provide a necessary context for the judge to consider all of the other sentencing factors specific to an offender.

Both defence and Crown counsel have a duty to provide the sentencing judge with information relevant to these factors, and if they don’t, the judge has a responsibility to obtain the information. If a judge does not consider the Gladue factors when sentencing an Aboriginal offender, the sentence can be appealed. However, Aboriginal offenders may waive (give up) their rights to have Gladue evidence presented, and such decisions will be respected.

Gladue Reports
Information relevant to the Gladue factors is often presented in a “Gladue report”, a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Courts have said Gladue reports should be balanced and objective. They should provide accurate, detailed, individualized information about how intergenerational and systemic effects of colonialism, displacement, residential schools, poverty, unemployment and substance abuse have affected an Aboriginal offender. They should also include information about realistic restorative or rehabilitative programs available for the offender

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.

The Criminal Code also directs that judges must pay particular attention to the circumstances of Aboriginal female victims when imposing a sentence.

This website provides general information only and should not be used as a substitute for legal advice.

Updated February 2020