General Principles

The aboriginal factor must be taken into account at sentencing

Absent express informed waiver, counsel has a duty to present the unique circumstances of an aboriginal offender on sentencing: R v Radcliffe, 2017 ONCA 176 at paras 54

 

A sentencing judge is obliged, under s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders, and it is an error for a sentencing judge to fail to factor into a sentencing decision the accused’s Aboriginal status: R v Van Every, 2016 ONCA 87 at para 87; Radcliffe at para 56; R v Kreko 2016 ONCA 367 at para 27

 

Systemic and background factors may bear on the culpability of the offender, to the extent they illuminate the offender's level of moral blameworthiness: Radcliffe at paras 52-53

 

However, it is an error of law to require a causal connection between aboriginal status and the offences committed: R v Kreko, 2016 ONCA 367 at paras 20-23​. Instead, aboriginal factors must be tied to the particular offender and offence(s) in that they must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing

 

Crafting a fit sentence​

Judges must craft sentences that are meaningful to Aboriginal people by emphasizing the use of principles of restorative justice and restraint: Van Every at para 88; Radcliffe at para 52

The trial judge need not particularize how the information of disadvantage was precisely factored into his analysis. The trial judge has no obligation to quantify the effect of each factor: Van Every at para 99

The "aboriginal factor" does not necessarily justify a different sentence for Aboriginal offenders. It provides the necessary context for understanding and evaluating the offender and the circumstances of the case.  It is only where the unique circumstances of an offender bear on culpability, or indicate which sentencing objective can and should be actualized, that they will influence the ultimate sentence: Radcliffe at para 54-55
 

While the Gladue factors apply to all offences, even the gravest of offences, the more violent and serious the offence the more likely it is that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same: Van Every at para 88

Dangerous Offenders and Post-sentencing considerations

 

Dangerous Offender Applications 

In the context of dangerous offender applications, aboriginal characteristics that make an offender "less blameworthy" generally have little impact.

 

However, where Gladue factors serve to establish the existence and availability of alternative Aboriginal-focused means aimed at addressing the environmental, psychological or other circumstances which aggravate the risk of re-offence posed by the Aboriginal offender, a sentencing judge must make reference to them. That being said, the failure to consider Aboriginal circumstances may be overcome by evidence regarding risk of re-offence and the absence of any reasonable possibility of eventually controlling that risk in the community: Radcliffe, at paras 57, 59.

Sometimes, the long-standing problems of a person declared a dangerous offender simply cannot be adequately ameliorated, the risk of re-offence reduced to an acceptable level, by Aboriginal programs or facilities alone.

Parole Eligibility 

Section 718.2(e) and the principles enunciated in R. v. Gladue, [1999] 1 S.C.R. 688, apply to decisions on parole eligibility: Van Every at para 87