The courts have long recognized that an offender’s Indigenous heritage needs to be considered when sentencing Indigenous offenders.
This reflects the fact that the realities of Indigenous people, including discriminatory treatment that has resulted in problems including lower educational attainment and incomes, and higher rates of substance abuse and incarceration, must be considered in order to determine an appropriate sentence in the individual circumstances of the case. This raises the question of whether the consideration of an offender’s Indigeneity extends to other aspects of the criminal justice process.
This article looks at the important recent decision of the Court of Appeal for Ontario in R. v King, which provided some clarity on this question in the context of applications during the trial to exclude evidence of prior convictions.
Gladue principles are considered when sentencing Indigenous offenders
Section 718.2(e) of the Criminal Code requires sentencing judges to consider all available sanctions other than imprisonment and to pay “particular attention to the circumstances of Aboriginal offenders”.
In the landmark 1999 decision of R. v Gladue, the Supreme Court of Canada recognized that the purpose of this section was to respond to the problem of the overrepresentation of Indigenous people in prison.
The Supreme Court said that sentencing judges must consider the unique systemic or background factors that may have played a part in bringing the particular Indigenous offender before the courts and the types of sanctions that may be appropriate because of their Indigenous heritage or connection.
Gladue principles have since been used in other contexts
Since the Gladue decision was handed down, similar principles have been used in other contexts to inform exercises of decision-making.
A consideration of the realities of the Indigenous people appearing before decision-makers in the criminal justice system has been applied in contexts including bail hearings, extradition hearings and parole hearings.
Indigenous man who had difficult background shot and killed university student
The case of R. v King concerned an Indigenous man who shot and killed a person in downtown Hamilton. The accused was 19 years old and “had a very difficult background” according to the Court – his parents were alcoholics and he was placed into foster care. He had an extensive criminal record, no fixed address and multiple drug addictions.
After the accused was violently robbed, he purchased a gun to protect himself. On the day in question, after consuming crystal methamphetamine and alcohol, he went to sell drugs to a new client.
En route, the accused had an altercation with a group outside a mosque. After showing his gun to try and defuse the situation, a young university student from this group ran after him and the accused turned and fired his gun, killing him.
After being acquitted, Crown appealed arguing that prior convictions should not have been excluded
The accused was charged with second-degree murder. He testified at trial that he believed the victim had a gun and argued self-defence. The jury returned a verdict of not guilty, however, the Crown appealed the acquittal on several grounds.
The accused had 29 convictions, including eight as an adult. When an accused chooses to testify, they place their credibility at issue, which normally allows the Crown to adduce evidence of prior convictions. However, this can cause significant prejudice and the trial judge can exclude convictions where the prejudicial effect outweighs the probative value arising from the criminal record.
The accused in this case brought an application to exclude some of the convictions, arguing:
“that because of the [accused’s] Indigeneity, if the jury were to learn about the extent of his criminal record, there was a heightened risk that it could cause an increased degree of prejudice to him”.
The trial judge excluded many of the convictions, including all those related to assault, relying on the Gladue principles.
Parties agreed on the need to consider the realities of the Indigenous accused
On appeal, the Crown argued that the judge erred in the methodology he used when considering those principles.
The Court of Appeal noted that the parties agreed that trial judges hearing an application to exclude convictions ought to take account of the “realities of an Indigenous accused appearing before them, including the consequences of overt and systemic racism experienced by Indigenous people”. However, the parties disagreed over how to operationalize this.
Court decided trial judge’s consideration of Gladue principles was appropriate; dismissed the Crown’s appeal
The Court of Appeal explained that trial judges consider four factors when deciding applications to exclude convictions – the nature of the convictions, the similarity between the convictions and the charge faced, how recent the convictions were, and the risk of presenting a distorted picture to the jury.
Several of these factors may require further specifics to be considered in order to put the judge in a position to assess the probative value and prejudice of admitting the convictions. The Court explained:
“For the purposes of the analysis, it does not matter whether the application of the Gladue principles is conceptualized as a separate step in the … analysis or a further specification of the existing … factors – the substance of the analysis will be the same.”
For example, when it comes to assessing prejudice, trial judges are required to take notice of the fact that Indigenous people are often subject to racism, which prevents the jury from evaluating their credibility accurately.
The Court dismissed the Crown’s appeal in this case, finding that the trial judge correctly considered the accused’s Indigeneity and personal circumstances.
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