Gladue Hearings: Systemic or Background Factors

When sentencing an Aboriginal offender, courts must consider: 
(1)    The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts.
To do this courts are to take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples.  These matters provide the necessary context for understanding and evaluating the case‑specific information presented by counsel. 
(2)    The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.
R. v. Gladue, 1999 CanLII 679 (SCC), at para. 66.

Aboriginal Offender not required to establish causal connection 
It is an error in principle for a sentencing judge, in assessing the first branch of the Gladue framework, to require an offender to establish a causal link between systemic and background factors and the commission of the offence.
R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433.
R. v. F.H.L., 2018 ONCA 83, at para. 32;
R. v. Collins, 2011 ONCA 182, 104 O.R. (3d) 241, at paras. 32-33; 
R. v. Kreko, 2016 ONCA 367, at paras. 20-21.
Such a requirement displays an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples and imposes an evidentiary burden on offenders that was not intended by Gladue.
Ipeelee, at para. 82.
Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca

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