R. v. Jimmy, 2023 SKCA 28 March 1, 2023, at paragraphs 22 to 25 and 29:
In light of the Supreme Court’s decisions in Gladue and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee], the proper application of s. 718.2(e) requires that judges approach the sentencing of Indigenous offenders in a way that considers the systemic or background factors that may have played a part in bringing those offenders before the courts – and with an eye to implementing sentencing procedures or sanctions that are appropriate in the circumstances for those offenders because of their Indigenous heritage (Gladue at para 66, R v Chanalquay, 2015 SKCA 141 at para 34, [2016] 4 WWR 242 [Chanalquay], and R v Charles, 2021 SKCA 75 at para 37, [2021] 7 WWR 734 [Charles]). This approach must be employed even where the offender has committed a serious offence involving personal violence (Friesen at para 92; R v Ratt, 2021 SKCA 7 at para 63, leave to appeal to SCC refused, 2021 CanLII 63699 [Ratt]; R v Noltcho, 2021 SKCA 113 at para 15 [Noltcho]; and R v Bear, 2022 SKCA 69 at para 107 [Bear]) – and even where the nature of the offence calls for a sentence of incarceration (Charles at para 41 and R v J.P., 2020 SKCA 52 at paras 63–64, 62 CR (7th) 328 [J.P.]).
The approach required by s. 718.2(e) calls upon “judges to carefully consider (i) the extent to which an Indigenous offender’s unique circumstances may have had a bearing on their moral culpability; and (ii) whether and how the relevant sentencing objectives can be actualized through sanctions other than imprisonment or through the term of imprisonment imposed” (Bear at para 108).
This distinct approach to sentencing, however, does not necessarily mandate a different result for an Indigenous offender versus a non-Indigenous offender. Section 718.2(e) does not require, or permit, an automatic reduction of sentence simply because the offender is Indigenous (Gladue at para 88, Ipeelee at para 75, R v Whitehead, 2016 SKCA 165 at paras 56 and 61, [2017] 5 WWR 222, and R v Dillon, 2022 SKCA 17 at para 33, 92 MVR (7th) 214 [Dillon]). As Richards C.J.S. discussed in Chanalquay, “the fundamental dynamic underlying s. 718.2(e) when a trial judge sentences an [Indigenous] offender is not merely one of reflexively giving less jail time. Rather, it involves the subtler idea of attempting to limit or minimize jail time by using restorative justice approaches when and if such approaches are appropriate” (at para 36).
Nor does s. 718.2(e), and the analysis it calls for, mean that other sentencing principles can be ignored or that restorative justice objectives must necessarily be given priority over objectives such as deterrence, denunciation and separation in relation to Indigenous offenders. As is the case with all offenders, the analysis for sentencing Indigenous offenders “must be holistic and designed to achieve a fit sentence in the circumstances” (Gladue at para 81 and Chanalquay at para 38).
Nor does s. 718.2(e) give judges licence to ignore or misapply other sentencing principles.
