Present Evidence to Prove Systemic Disadvantage?


Do you have to present evidence of the systemic and other background factors affecting Aboriginal Peoples in Canada? No.

The Supreme Court said that in Ipeelee there has been a fundamental misunderstanding and missapplication of the Gladue Principles.  "Restorative justice" principles and rehabilitation were significant considerations in sentencing.
The Supreme Court ruled that courts can take what is called ‘judicial notice’ of systemic and background factors negatively affecting Aboriginal Peoples in Canada. 

Judicial Notice is a legal doctrine wherein a court can accept various things as fact without the need of a party to prove these facts by presenting evidence to the court.

This means you do not have to present evidence that there is a history of colonialism, displacement and such.  The court can accept those as proven facts.

These accepted facts provide necessary context for the sentencing Judge to consider a restorative justice sentence.

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As noted in paragraph 60 from the Ipeelee decision below these factors include;

Paragraph 60 of Ipeelee

60   Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27 (CanLII), 2000 SKCA 27, 189 Sask. R. 190).  To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered.  In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code.