JURIST - Paper Chase: Canada high court orders judges to consider Aboriginal history when sentencing

[JURIST] The Supreme Court of Canada [official website] on Friday issued a decision [text] requiring sentencing judges to consider the history of oppression that Aboriginal offenders may have experienced when determining appropriate sentences. The court determined that sentencing judges should take into account certain negative factors affecting Aboriginal defendants:

When sentencing an Aboriginal offender, 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. However, these matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders.

The decision, which involved two cases in which Aboriginal men with long criminal histories appealed their sentences, allowed the court to evaluate whether Aboriginal offenders were being sentenced in accord with the court's 1999 case, R. v. Gladue [text]. The so-called Gladue principles [Justice Education backgrounder] require sentencing judges to take an individualistic approach to sentencing and to consider all of the factors that may have negatively impacted an Aboriginal offender to further the purposes of sentencing and rehabilitating the offender. The court on Friday determined that judges were not implementing the Gladue principles and ruled that the principles were not optional and must now be considered.

Friday's court decision may be seen as another attempt by Canada to address past wrongs committed against its Aboriginal people. In November 2010, Canadian UN ambassador John McNee announced [JURIST report] that the country had endorsed the UN Declaration on the Rights of Indigenous Peoples [text, PDF], reversing the government's initial opposition to the declaration. The Canadian government described the move as one intended to strengthen relationships with indigenous communities. Other countries have also addressed the wrongs committed against native peoples. In January, a panel of Australian citizens proposed that the country's constitution recognize the Australian indigenous population [JURIST report], including Aboriginal and Torres Strait Islander people. Although Aborigines make up almost three percent of the Australian population, they are not mentioned in the constitution.