Aboriginal people and Canadian Criminal law

The Criminal Code and the Youth Criminal Justice Act have parts that consider the unique legal status of Aboriginal people in Canada.

So Section 718.2 of the Criminal Code says:

718.2 A court that imposes a sentence shall also take into consideration the following principles:
…  (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

Similarly Section 38 of the Youth Criminal Justice Act says:

38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

…  (d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

These principles are often referred to as Gladue principles from a 1999 Supreme Court of Canada decision.

Gladue principles say a Court must consider:

the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the Courts (such as systemic disadvantages, discrimination and other factors) and

the effectiveness of the sentencing by looking at the types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender because of his or her particular aboriginal heritage or connection.

The Court must consider whether imprisonment to denounce or deter "would be meaningful to the community of which the offender is a member."  The aboriginal heritage factor will play a role in all offences by offenders, no matter how serious.   However, aboriginal factors will play less of a role for the most serious offences where the emphasis must be on the protection of the public, denunciation and deterrence.  There is no need to prove a causal connection between the offence and the accused's aboriginal background.

Where imprisonment is necessary, the length may be less due to the aboriginal heritage factors, however, where the offence is "more violence and serious" it is "more likely" that the terms of imprisonment will be close to or the same length as a non-aboriginal offender.

Courts can take judicial notice of that Aboriginals have a long-standing disadvantage in Canadian society.

Every criminal court in Canada is required to take Gladue factors and principles into consideration when sentencing an Aboriginal person. Courts are also required to take a person's Aboriginal background and the Gladue principles into account at bail hearings.