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Canada: History of Oppression of Indigenous Peoples to Count in Sentencing

(Mar. 30, 2012) On March 23, 2012, the Supreme Court of Canada ruled that judges must take into account any history of oppression when sentencing aboriginal defendants in Canada. Specifically, the decision, which came in a joint ruling on two cases, stated:

When sentencing an Aboriginal offender, a judge must consider … (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. (R. v. Ipeelee, 2012 SCC 13, Judgments of the Supreme Court of Canada (Mar. 23, 2012).)

The decision went on to state that:

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. These matters provide the necessary context for understanding and evaluating the case-specific information presented by counsel. (Id.)

The Court stressed however that even though the factors mentioned had to be considered, “these matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders.” (Id.)

The Court referred to an earlier decision, R. v. Gladue, from 1999, which required judges to take individual circumstances into account in sentencing aboriginal defendants and in particular to look at ways in which the history of aboriginal peoples in the country may have impacted the individual offender. (J 1 S.C.R. 688, JUDGMENTS OF THE SUPREME COURT OF CANADA (Apr. 23, 1999); Jamie Davis, Canada High Court Orders Judges to Consider Aboriginal History when Sentencing, PAPERCHASE NEWSBURST (Mar. 24, 2012).) Evaluating the history of Canadian sentencing in view of what are called the “Gladue principles,” the Supreme Court's recent decision stressed that following these principles is not optional. (Davis, supra.)

The Court decision is one of Canada's recent steps reflecting its desire to improve relations with the indigenous communities in the country. Although previously opposed to the document, in November 2010, Canada endorsed the non-binding United Nations Declaration on the Rights of Indigenous Peoples. (Id.; UN General Assembly Resolution A/61/L.67 and Add.1 (Sept. 13, 2007), United Nations website.)