R. v. Johnson, 2013 ONCA 177:

[62] Counsel for Johnson also argues that, given his Aboriginal status the starting point for the sentence, the sentencing floor, should be considered differently. Otherwise, the impact of Johnson's Aboriginal status is unjustifiably watered down, if not totally eliminated.

[63] The difficulty I have with this submission is that there can be no denying that the five-year mandatory minimum applies to all cases, including those, such as this, where s. 718.2(e) of the Code applies.

[64] As pointed out in R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 S.C.R. 433, at paras. 68-73, sentencing of all offenders, including Aboriginal offenders, is an individualized process. Section 718.2(e) must be addressed in all cases involving Aboriginal offenders. However, the considerations relevant to s. 718.2(e) must still have some connection to the offence and/or the offender before they will impact on the sentence. As explained in Ipeelee, at para. 83:

[65] Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.

[66] As the trial judge correctly recognized, his sentencing options were restricted by the fact that Johnson faced a five-year minimum prison sentence. And it was against the background of this restriction that the trial judge was obliged to consider the circumstances of the offence and the offender, including his Aboriginal status. These circumstances included the fact that the crimes for which Johnson was being sentenced were serious as was his criminal record

[Note: the five-year mandatory minimum sentence set out in s. 95(2) of the Criminal Code, was held to be unconstitutional in the companion cases of R. v. Nur, 2013 ONCA 677 (CanLII), 117 O.R. (3d) 401, leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 17, appeal heard and reserved November 7, 2014, and R. v. Charles, 2013 ONCA 681 (CanLII), 117 O.R. (3d) 456, leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 18, appeal heard and reserved November 7, 2014.]