Tuesday, April 23, 2013

Need to prove negative impact of prejudice before Gladue applies?

R. v. J.N., 2013 ONCA 251 deals with when Gladue factors apply. Many, including this writer, were of the view that Collins, 2011 ONCA 182 stood for the proposition that an accused did not bear the burden of showing prejudicial effect. Today's decision may stand for the opposite principle: 

[47]       Second, however, even assuming for the sake of argument that Gladue applies, the evidence that the appellant's Aboriginal ancestry may have played a part in his criminality is weak. In coming to this conclusion, we are mindful of this court's direction in R. v. Collins, 2011 ONCA 182, 104 O.R. (3d) 241, at paras. 32-33, that an Aboriginal offender does not bear the burden of establishing a direct causal link between the systemic and background factors and the commission of the offence. Gladue simply requires that the sentencing judge take those systemic and background factors into account in shaping an appropriate sentence.

[48]       In this case, the evidence suggests that the appellant's Aboriginal background played a minor role in bringing him before the court. By his own account, the appellant had a "good" childhood. He was cared for by a loving mother and did not suffer abuse. He had a solid academic attendance record and graduated high school, even going on to learn a trade. There is no evidence of a family history of addiction or sexual abuse. To the extent that the appellant reports having been bullied at school, it was because he was "Aboriginal and American" (emphasis added). In short, there is nothing other than the appellant's own evidence to suggest that his sense of dislocation from his Aboriginal heritage contributed to his criminal behaviour.

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