Plan B for Implementing Gladue: The Need to Apply Background Factors to the Punitive Sentencing Purposes

Abstract

The first part of this article examines the sentencing Indigenous offenders cases of Gladue and Ipeelee with a focus on what the Supreme Court of Canada says that may help judges in applying background factors to the various purposes of sentencing. The second part will be a preliminary discussion of how background factors including recent work on Indigenous law might inform the punitive purposes of sentencing relating to moral blameworthiness and the effectiveness of deterrence, denunciation and incapacitation of Indigenous offenders. This analysis is not meant to disparage the importance of rehabilitation or other restorative principles, but to focus on those aspects of sentencing jurisprudence that have been the most resistant to Gladue analysis and where change has the potential to reduce both Indigenous overrepresentation in prison and among crime victims.