Aboriginal offenders and Gladue

Today's decision in R.  v.  Jacko,  2010 ONCA 452 gives a useful review of the law as relates to sentencing aboriginal offenders:

[58]          On its face, s. 718.2(e) requires a sentencing judge to consider alternatives to the use of imprisonment as a penal sanction. This sentencing factor embodies the principle of restraint and is of general application. Except in cases in which no other sanction or combination of sanctions is appropriate to the offence and offender, imprisonment is a penal sanction of last resort: Gladue at para. 36.

[59]          The juxtaposition of a specific reference to aboriginal offenders in the waning words of s. 718.2(e) signals to sentencing judges that they must pay particular attention to the circumstances of aboriginal offenders because they, or their circumstances, are unique and different from those of non-aboriginal offenders.  Section 718.2(e) imposes a duty on the sentencing judge to give the remedial purpose of the provision real force in relation to aboriginal offenders: Gladue at paras. 34 and 38. 

[60]          Section 718.2(e) alters the method of analysis a sentencing judge must undertake in their determination of a fit sentence for an aboriginal offender. The sentencing determination must take into account the unique circumstances of aboriginal peoples: Gladue at para. 75.

[61]          As Gladue teaches, it is important to recognize that, for many, if not the vast majority of aboriginal offenders, our current sentencing concepts do not resonate.  Frequently, those concepts have not responded to the needs, experiences and perspectives of aboriginal people or aboriginal communities: Gladue at para. 73.

[62]          The appropriateness of a sentence depends on the particular circumstances of the offence, the offender and the community in which the offender committed the offence.  Predictably, this individualized focus in sentencing decisions spawns disparity among sentences for similar crimes: Gladue at para. 76; M. (C.A.) at para. 92. The "just and appropriate" mix of sentencing objectives, principles and factors will depend on the needs and current conditions of and in the community in which the offence was committed: M. (C.A.) at para. 92.

[63]          Another lesson from Gladue is that an aboriginal community will often understand the nature of the just sanction in a manner that differs markedly from non-aboriginal communities. Gladue acknowledges that, in appropriate cases, some traditional sentencing objectives will be correspondingly less relevant to the sentencing decision and the objectives of restorative justice will occupy a place of greater influence:  Gladue at para. 77.

[64]          Restorative justice objectives do not trump other sentencing objectives in every case involving aboriginal offenders. Separation, denunciation and deterrence retain their fundamental relevance for some offenders who commit serious offences.  As a general rule, the more serious and violent an offence, the more likely it is that the terms of imprisonment imposed on similarly-circumstanced aboriginal and non-aboriginal offenders will not differ significantly, and indeed may be the same.  That said, in some instances of serious and violent crime, the length of a sentence of an aboriginal offender may be less than that imposed on a non-aboriginal offender: Gladue at paras. 79 and 80.  Serious crime and the objectives of restorative justice are not incompatibles in the sentencing process – restorative justice objectives may predominate in the sentencing decision for aboriginal offenders convicted of serious crimes: R. v. Wells, [2000] 1 S.C.R. 207, at para. 49; R. v. Whiskeyjack (2008), 93 O.R. (3d) 743 (C.A.), at para. 29
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