Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

SENTENCING-INDIGENOUS OFFENDERS

R. v. Umpherville, 2024 SKCA 117, December 20, 2024, at paragraphs 49 and 65:

The requirement under s. 718.2(e) of the Criminal Code relates to the fundamental principle of proportionality, which is “the sine qua non of a just sanction” as it “ensures that a sentence reflects the gravity of the offence” and also “ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender” (Ipeelee at para 37, Whitehead at para 36). As explained in J.P., “any factor affecting moral blameworthiness (whether by increasing or decreasing it) must be given weight in order to impose a fit sentence based [on] the principle of proportionality” (at para 64, emphasis in original). This is no less true for the types of systemic and other factors that have led to the gross overrepresentation of Indigenous persons in our country’s prisons than for any other factor that affects the moral blameworthiness of an offender.

Gladue principles are engaged in sentencing of all types of offences and their consideration is necessary to arrive at a just and proportionate sentence, regardless of the level of dangerousness involved (Gladue at para 79; R v Hilbach, 2023 SCC 3 at para 39, 422 CCC (3d) 139; Ipeelee at paras 70–75 and 84–86; R v Wells, 2000 SCC 10 at paras 30 and 50, [2000] 1 SCR 207). I note that Gladue was a homicide case and involved objectively more serious misconduct than the present case.