Aboriginal Offenders

In Canada, the courts must pay special attention to Aboriginal offenders and their unique challenges.

Section 718(e) of the Criminal Code stipulates that where the court is sentencing an individual who has been convicted of an offence, they must consider all reasonable sanctions other than incarceration, with particular attention paid to Aboriginal offenders and their unique circumstances in Canada. A similar provision is included in the Youth Criminal Justice Act under section 38(2)(d).

Parliament’s intention when enacting these sections was to instruct the courts to pay particular attention to Aboriginal offenders when it comes to sentencing. Such an instruction was necessary for many reasons. Aboriginal individuals are treated with bias in Canada, particularly in the criminal justice system. This is evident when you look at the vast overrepresentation of Aboriginal offenders in the Canadian prison system. Additionally, traditional Canadian methods of sentencing do not take into consideration the unique experiences and needs of Aboriginal offenders and their communities. As a result, these sentencing methods have been notoriously ineffective in reducing recidivism among Aboriginal populations.

Aboriginal Offenders and Sentencing

In the last several decades courts and the legislature have begun to recognize the unique experiences of Aboriginal individuals living in Canada. In response to the massive overrepresentation of Aboriginal offenders in our prison system, changes have been made in the way Aboriginal offenders are processed through the courts.

One of the most important cases in this movement was the 1999 case of R. v. Gladue. In that case, the accused, a young woman named Gladue, was arrested and charged with murdering her common law spouse after stabbing him. She ultimately pled guilty to manslaughter and was sentenced to three years in custody.

The case made its way to the Supreme Court. In its decision, the Supreme Court discussed what are now known as the “Gladue factors” and ordered lower courts to consider these factors when determining sentencing for Aboriginal offenders. Prior to sentencing an Aboriginal offender, the court should review and consider a detailed pre-sentence report or Gladue report that outlines all these issues. In some cases, a Gladue hearing is necessary.

What is a Gladue Hearing?

A Gladue hearing is a hearing that occurs prior to sentencing an Aboriginal offender. The purpose of the hearing is to deduce evidence of the offender’s unique circumstances to the court to ensure the court considers all relevant factors when determining the appropriate sentence. At a Gladue hearing, the offender or their lawyer will have the opportunity to present all relevant information to the court.

Typically, the Court will hear evidence on the following areas during a Gladue hearing:

• The nature and circumstances surrounding the offence and the effects on the community;
• The band, community or reserve the offender comes from and whether they live on or off a reservation;
• If the offender is a member of the Metis, Inuit or aboriginal background;
• Whether the offender has experienced a breakdown of their community, family, or support system and whether they have experienced alcoholism, drug addiction, poverty or racism within their community; and
• Alternative community supports or treatment facilities in the community that the offender has access to.

Sentencing judges must consider these factors prior to sentencing an Aboriginal offender. If the record is deficient, judges have an “affirmative duty” to seek out the information prior to sentencing.

What are the Gladue Principles?

When sentencing an Aboriginal offender, sentencing courts must consider Gladue principles. Gladue principles include the unique circumstances of Aboriginal people within Canada. This can include challenges the offender and their community have faced as Aboriginals, how colonialism has impacted them and their communities and families and how it continues to affect them today. It may also include challenges faced by the offender including racism, removal of land, residential schools, loss of language and culture and time spent in foster care.

What is Aboriginal Diversion?

The Aboriginal diversion program is a program created to divert Aboriginal offenders out of the formal court system and into the local community where the offence took place or where the accused and/or victim live. The Aboriginal diversion program is aimed at repeat offenders and works to keep these individuals from continuing to reoffend by providing them with real support and resources and by attempting to heal from within the community.

More Legal Information

Elements of an Offence

Your Rights

Criminal Records