Aboriginal background must factor in criminal sentencing: Supreme Court of Canada

The Supreme Court of Canada has affirmed the principle that an accused person's aboriginal background should be a prime factor in sentencing.

In a six-to-one ruling handed down Friday, the top court said aboriginal background must be considered even in cases where the accused are under long-term court supervision, the Canadian Press reported.

"To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide and, of course, higher levels of incarceration for Aboriginal Peoples," Justice Louis LeBel wrote for the majority.

"Failing to take these circumstances into account would violate the fundamental principle of sentencing."

The Supreme Court reviewed two cases involving men with long, violent criminal records. Both had violated the terms of their supervision orders. It's the first time the court ruled on how the Gladue principles on aboriginal sentencing guidelines set by Parliament, based on a 1998 Supreme Court decision, applied to cases involving such offenders. Gladue required judges to recognize the historical factors have lead to a much higher proportion of aboriginal men and women in Canadian prisons than their percentage of the total population would justify.

Jonathan Rudin of Toronto's Aboriginal Legal Services, an intervenor in one of the cases, told Postmedia News judges seem to have been confused about how to apply Gladue to offenders accused of serious and violent crimes, which led to sentencing inconsistencies. Some judges applied Gladue across the board. Others used it only for aboriginals committing lesser offences but sentenced all offenders equally on violent crimes such as rape or murder.

Rudin said the purpose of Gladue is not to "give aboriginals a break."

"If you look at the circumstances of the offender, you may understand the underlying reasons for the offending behaviour better and also you'll understand what might work from a rehabilitation perspective, leading, hopefully, to a more appropriate sentence for the individual — which could be less than someone else," he said.

The court reviewed one British Columbia and one Ontario case involving men designated long-term offenders for sex crimes. Both were released after serving their terms but, as long-term offenders, were subject to regular supervision, Postmedia noted. They were also subject to conditions that included abstaining from alcohol and drugs, which were thought to have been factors in their offences. Both men were sent back to jail for violating their conditions, receiving three-year sentences, though one had his sentence reduced to one year on appeal.

In the Supreme Court's decision, LeBell stressed the Gladue principles embedded in the Criminal Code are not a "race-based discount on sentencing."

Defence lawyer Fergus O'Connor, representing Manasie Ipeelee of Iqaluit, Nunavut, applauded the decision and told Postmedia News it did not amount to a free pass for aboriginals.

"But because of the systemic mistreatment of aboriginals, even if a person is guilty, . . . it goes to the degree of responsibility because of the unique and hard background," O'Connor said.

"It follows a matter of logic that a person who has been harshly treated — and whose entire culture has been harshly treated historically for many generations — should have that taken into account."