Inequality, Crime and Sentencing: Borde, Hamilton and the Relevance of Social Disadvantage in Canadian Sentencing Law

Source: (2004) Queen’s Law Journal. 30 (Fall): 114-155.

In R. v. Gladue n1 and R. v. Wells, the Supreme Court: of Canada adopted methodology for sentencing aboriginal offenders in the hope of reducing the overrepresentation of aboriginal peoples in Canada’s prisons. Relying on section 718.2(e) of the Criminal Code, the Court held that in deciding on a fit sentence for an aboriginal offender, a judge must address two issues. First,
the judge must take into account the unique systemic and background factors that may have contributed to the aboriginal offender being before the court. Second, the judge must consider the type of procedures and sanctions that may be appropriate in the circumstances given the offender’s specific heritage or connection to an aboriginal community. (excerpt)