R. v. Gilliland

The Court of Appeal held that the Provincial Court judge in this matter had incorrectly concluded that the "Aboriginal heritage" of the accused was not something that he could take judicial notice of and that the Court required a Gladue report to be provided before the systemic and background factors affecting the accused could be considered. A unanimous Court of Appeal stated that "there are two distinct kinds of information which are relevant to the sentencing of Aboriginal offenders" (¶14). Sentencing judges must both take judicial notice of the systemic factors that generally affect Aboriginal persons and consider the "case-specific" information on the systemic and background factors affecting the individual offender, so long as this information is available.

In this case, the accused waived his right to submit a Gladue report on systemic and background issues particular to him as an individual. However, the Provincial Court judge was still obligated to take judicial notice of the systemic factors affecting Aboriginal individuals generally in crafting a fit sentence. Furthermore, the accused in this case had provided detailed submissions on his life experiences that should have been taken into account as well. Nevertheless, the Court of Appeal found that the sentence imposed by the Provincial Court could not be considered "a substantial and marked departure" from other sentences imposed in similar circumstances to those of the accused and the appeal from this sentence was dismissed.