Failure to consider aboriginal background may render sentence subject to review even if Gladue issues not raised on sentencing

R. v. Nahmabin, 2010 ONCA 737 is a good source for the principle that Gladue factors must be considered. Even there is an express refusal of such consideration on sentencing a review on fresh evidence with a Gladue report may be available. Aboriginal background is a factor for consideration on sentencing in all areas of criminal and quasi-criminal law:

[1]               This appellant has had a tragic background that has led to almost continuous terms of imprisonment since a young age. He faces considerable challenges in dealing with substance abuse, anger management and commitment to treatment. That said, it is conceded that the trial judge erred in principle in failing to make further inquiries into the appellant's aboriginal background and failing to take into account s. 718(2)(c) of the Criminal Code.  In fairness to the trial judge, it does not appear that defence counsel at trial wished to have a Gladue report. The fresh evidence before this court in the form of a Gladue report and an updated report suggests a planned response to the appellant's treatment needs resulting from the impact of systemic factors and the appellant's personal needs.