On a Gladue-style approach to sentencing Black accused in Canada

January 23, 2019

In R v Jackson, Superior Court Justice Shaun Nakatsuru took judicial notice of “the historical and s­­ystemic injustices committed against African Canadians” during the sentencing hearing of a Nova Scotian man of mixed African and Indigenous heritage.[i] The defence argued that the analysis applied by courts to Indigenous offenders, as prescribed in R v Gladue, should also be applied to offenders of African descent, due to the similarities between both communities in terms of sources and outcomes of discrimination, and submitted an Impact of Race and Culture Assessment (IRCA) in support of this submission.[ii]

 

Although Justice Nakatsuru rejected this approach, the court did acknowledge that jurisprudence about sentencing Indigenous persons, while not providing a ready-made template for sentencing African-Canadians, nevertheless provided some guidance for this process.[iii]

In R v Gladue, the Supreme Court of Canada stated that judges, when sentencing an Indigenous offender, should consider the “unique background and systemic factors” which may have contributed to the circumstances that placed the Indigenous offender in that courtroom.[iv]

 

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