SPOTLIGHT on JUSTICE
The GLADUE Decision
Supreme Court of Canada
Special Sentencing Considerations
for Aboriginal Offenders
section 718.2(e) of the Criminal Code of Canada
A court that imposes a sentence shall also
take into consideration the following principle
"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."
Gladue and Aboriginal Canadians
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Top court appalled as natives fill Canada's jails
Judges must stop sending so many aboriginals to prison, court declares
More Background Information
Court Cases Related to
R. v. Gladue
"This is not to be taken to mean that as a general practice, Aboriginal offenders must always be sentenced in a manner which gives the greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation and separation.
It would be unreasonable to assume that Aboriginal people themselves, do not believe in the importance of these goals, and even if they do not, that such goals must not predominate in appropriate cases.
Even where an offence is considered serious, the length of term of incarceration must be considered. In some circumstances, the length of the sentence of an Aboriginal offender may be less, and in others, the same as that of any other offender.
In this context generally, the more serious and violent the crime, the more likely it will be, as a practical matter, that terms of imprisonment will be the same for similar offences and offenders, whether the offender is Aboriginal or non-Aboriginal."
DANIEL JAMES MORRIS
BC Judge Opts for Kaska Nation Community Healing
as Part of Probation Sentence
R vs Leaney
BC Court of Appeal - January 24, 2002
R vs Casimir
BC Court of Appeal - April 3, 2001
Gladue Factor Considered
at sentencing of three Aboriginal men
who killed Douglas Gormley in Kamloops
May 10, 2002
The following comments were made in R. v. Wells (2001), 1 S.C.R. 207:
"Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions of sentencing, it is reasonable to assume that for some aboriginal offenders, and depending upon the nature of the offence, the goals of denunciation and deterrence are fundamentally relevant to the offender's community. As held in Gladue, at para. 79, to the extent that generalizations may be made, the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciation and deterrence are accorded increasing significance."
"The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person. Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstances in light of the aims and principles of sentencing as set out in Part XXIII of the Criminal Code and in the jurisprudence, the judge must strive to arrive at a sentence which is just and appropriate in the circumstances. ..."
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