Today's decision in R. v. Whiskeyjack, 2008 ONCA 800 makes this last point clear. The Court holds:
[28] The appellant also submits that the sentencing judge held that the Gladue principles had little or no bearing on the sentence since the appellant had committed an offence involving serious violence. The appellant submits that in so holding, the sentencing judge erred. She focuses on the following passage from the sentencing judge's oral reasons:
The issue here, as indicated in the Ontario Court of Appeal decision of R. v. Cudmore, [[1972] 1 O.R. 812] is about denunciation and general deterrence and the importance of protecting children who cannot protect themselves. Although I have considered the Gladue component here, I accept the position in R. v. Wells [[2000] 1 S.C.R. 207] that as a practical matter, particularly violent and serious offences will result in imprisonment for aboriginal offenders as well as for non-aboriginal offenders. Therefore, while rehabilitation of the mother must be considered, general deterrence and denunciation must be the primary consideration.
[29] I agree with the appellant that the Gladue principles, which provide a framework for interpreting s. 718.2(e) of the Criminal Code, must be considered when sentencing an aboriginal offender who has committed an offence involving serious violence. This issue was fully canvassed by this court in R. v. Kakekagamick (2006), 81 O.R. (3d) 664. There, LaForme J.A. held that "regardless of the seriousness of the offence, the analysis set out in Gladue will nevertheless apply in all cases where the offender is an Aboriginal person." At para. 56 he added:
[W]here a sentencing judge does not properly take into account the circumstances of the Aboriginal offender as required by s. 718.2(e) of the Criminal Code, and fails to properly and adequately conduct the inquiry set out in Gladue, it amounts to an error justifying appellate intervention.
[30] However, at para. 36, LaForme J.A. also made clear that s. 718.2(e) and the principles in Gladue mandate "a different methodology for assessing a fit sentence for an Aboriginal offender" but "not necessarily… a different result." As set out in Gladue, at para. 66, the different methodology requires the sentencing judge to 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.
[31] The Gladue methodology can and should yield information that is capable of influencing the sentencing judge's determination of the appropriate type and length of sentence to be imposed. However, at the end of the day, it remains for the sentencing judge to consider the case as a whole. The task of the sentencing judge is to weigh the aboriginal offender's circumstances and his or her interest in rehabilitation or restorative justice with the community's interests in deterrence, denunciation, and the need for social protection. In the case of serious and violent offences, even for aboriginal offenders, the balance will often tilt in favour of the latter interests. In Gladue, Cory and Iacobucci JJ. stated at para. 79:
Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of the imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.
[32] The same principle was referred to by LaForme J.A. in Kakekagamick, at para. 43.
[33] Iacobucci J. elaborated on this point in the following passage from R. v. Wells, [2000] 1 S.C.R. 207, at para 42, which was referred to and paraphrased by the sentencing judge in her reasons:
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.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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