Colonial Sentencing: Incarcerating Aboriginal people – Part II

Part I

2. Sentencing of Aboriginal Peoples

A. Sentencing Law in Canada

As succinctly demonstrated, Aboriginal over incarceration is a complex problem with various consequences on our society. Part of the problem and solution comes from the Canadian sentencing regime. Before exploring how the regime could be modify in hope of diminishing over incarceration, it is important to understand how it currently works. Sentencing is the last step of the criminal justice process and happens after a finding of guilt by a trial court or a plea of guilt.[1] When the accused pleads guilty as the result of a plea bargain, there is often a joint submission by the defense and the Crown on the appropriate sentence.[2] If not, there is a sentencing hearing where a judge determines the appropriate sentence after hearing both parties. Both parties can appeal the sentence to a court of appeal if the sentence was not predetermined by law, such as for murder where a sentence of life imprisonment is mandatory.[3] Sentencing courts hold a lot of discretion when determining sentences, and are usually limited by only a maximum sentence and in certain cases a minimum sentence or a mandatory sentence.[4] Judges are however not completely free to determine a sentence as they must follow broad sentencing principles as established first by common law and subsequently codified in the Criminal Code. The overarching principle of sentencing is proportionality, meaning that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”[5] Other principles include the consideration of aggravating and mitigating circumstances, sentences should be similar for similar crime in similar circumstances, and the least restrictive appropriate sentence should be impose.[6] Sentences should also fulfil the following goal: denounce unlawful conduct; deter the offender and other persons from committing offences; separate offenders from society, where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or to the community; and promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.[7]

Sentences for adult include imprisonment, fines, absolute and conditional discharges, suspended sentences and probation, conditional sentences, restitution, and forfeiture.[8] Restitution consists of giving back stolen property or compensating damages to the victim(s) or his/her family, while forfeiture involves giving up proceeds of a crime.[9] Conditional discharges, suspended sentences and probation, and conditional sentences are sentences served in the community and associated with conditions and limits on liberties imposed by the judge.[10] Sentences served in the community tend to be more restorative in nature and are usually considered more beneficial for the reintegration of the offender than imprisonment. Imprisonment is generally recognized as a sanction of last resort.[11]

Sadly, the ability to impose a conditional sentence has been significantly limited by Bill C-10. This is due to explicit limitation on the imposition of conditional sentences for alleged serious offences and by increasing the number of offences subject to a mandatory minimum sentence.[12] These limitations will likely limit the possibility of Aboriginal people to obtain such sentences and therefore contribute to the over incarceration of Aboriginal people. Mandatory minimum sentences can also contribute to this fact as many of the new minimums are associated with drug offences and firearm offences, offences that are in high proportion amongst Aboriginal people.[13] Furthermore, minimum sentences, when disproportionate to the offences and its circumstances, have been determined to be cruel and unusual punishment and thus unconstitutional pursuant to s 12 of the Charter of Rights and Freedoms.[14]

B. Aboriginal People and Sentencing

Since the problem of over incarceration of Aboriginal people has been recognized for a long time, Parliament decided to adopt, in its reform of the sentencing provisions of the Criminal Code, a section geared toward remedying the situation. Paragraph 708.2(e) of the Criminal code reads: “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders” (emphasis added). This provision was subsequently interpreted by the Supreme Court in R v Gladue and most recently in R v Ipeelee. In Gladue the Court confirmed the remedial nature of s 718.2(e) of the Criminal Code and the need to interpret such provision in a large and liberal manner. It also specifically indicated that such provision was adopted to deal with Aboriginal over incarceration which is partly caused by the bias of the criminal justice system concerning Aboriginal offenders.[15] The Court recognizes that the consideration of Aboriginal people’s circumstances will sometime means that the relevance of other sentencing principles will be diminished, such as deterrence. S 718.2(e) of the Criminal Code is an indication that restorative justice should play a primordial role in the sentencing of Aboriginal offenders. Importantly, the Court affirms that judges have to take judicial notice (information retrieved by the judge instead of being presented by the parties) of the “systemic or background factors and the approach to sentencing which is relevant to aboriginal offenders.”[16] The offender can also induce any relevant evidence on those factors at the sentencing hearing. In summary, the provision requires that

“When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.”[17]

Paragraph 718.2(e) of the Criminal Code and Gladue had a mitigated success.[18] Some of the common errors associated with Gladue were even addressed in Ipeelee where the Supreme Court reaffirmed the growing importance of s 718.2(e) of the Criminal Code. The Court clarified that there was no need to prove the existence of a causal link between the background factors and the commission of the current offence.[19] It also expressly characterised the remedial nature of Gladue as a response to the effect of colonization on Aboriginal Peoples.[20] Finally the Court stated that Gladue was applicable to all offenses, even to violent or serious offences, and that more importantly courts should refrain from comparing an Aboriginal offender with a settler one in determining the appropriate sentence.[21] Nevertheless, these rectifications do not address one of the biggest problems with sentencing of Aboriginal people: the cultural gap between the white-western justice model and restorative Aboriginal justice (including racial bias and continued colonialism).[22] Our criminal law is a poor tool to regulate the behaviour of Aboriginal people who often see it as illegitimate and as imposed on them. It is disconnected from their values and thus in many occasions the offender has difficulty viewing his conduct as wrong, his punishment as deserved, and that he needs to change.

Part III.



[1] Trials are heard by either a provincial court or a superior court. Provincial courts hear cases with a judge alone, while superior court may hear cases with a jury, which makes the factual findings including guilt, if the accused wishes it. Summary conviction offences are dealt with by the provincial courts, indictable offences can be dealt with by both provincial and superior courts except for the most serious offences which are the exclusivity of the superior courts. For most offences, the Crown has discretion to decide if it wishes to proceed by way of summary conviction or indictment. Youth offenders are tried by youth courts. See Roach 2012, supra note 5 at pp 28-30.

[2] Roach 2012, ibid at p 472.

[3] S 687 of the Criminal Code; and Roach 2012, ibid at p 474.

[4] Roach 2012, ibid at pp 469-470.

[5] S 718.1 of the Criminal Code; and R v M (CA), [1996] 1 SCR 500.

[6] S 718.2 of the Criminal Code.

[7] S 718 of the Criminal Code.

[8] Youth sentences vary from adult sentences and are governed by the Youth Criminal Justice Act, SC 2002, c 1. Youth sentences are not explored in detail in this essay. For more information see Nicholas Bala, Youth Criminal Justice Law, 2nd ed (Toronto: Irwin Law, 2009).

[9] Roach 2012, supra note 5 at p 493.

[10] Laura Barnett et al, Legislative Summary – Bill C-10, (Ottawa: Library of Parliament, 2012) at pp 25-26 [Barnett]; and Road 2012, ibid at p 489-492.

[11] Clayton C Ruby, Sentencing, 8th ed (Markham (ON): Lexis Nexis, 2012) at pp 507-509 [Ruby]; and Karen Hindle & Philip Rosen, Restorative Justice – A Complementary Approach to Resolving Criminal Justice Issues, (Ottawa: Library of Parliament, 2004).

[12] Barnett, supra note 34 at pp 26-28 & 59-60; Submission of the Canadian Civil Liberties Association on Bill C-10 to the Senate Standing Committee on Legal and Constitutional Affairs, 41st Parliament, 1st Session, at p 14-16; Submission of the Canadian Bar Association, on Bill C-10 to the Senate Standing Committee on Legal and Constitutional Affairs, 41st Parliament, 1st Session, at pp 15-18, 22, 24 & 26; Submission of the government of the Northwest Territory, on Bill C-10 to the Senate Standing Committee on Legal and Constitutional Affairs, 41st Parliament, 1st Session; Submission of the government of Nunavut, on Bill C-10 to the Senate Standing Committee on Legal and Constitutional Affairs, 41st Parliament, 1st Session; and AFN Submission, supra note 4 at pp 9-10.

[13] AFN Submission, ibid at p 8-13; and Larry N Chartrand, “Aboriginal Peoples and Mandatory Sentencing” (2001) 39 Osgoode Hall LJ 449 [Chartrand].

[14] S 12 of The Constitution Act, 1982; R v Smith, [1987] 1 SCR 1045; Barnett, supra note 34 at pp 26-27; and Chartrand, ibid.

[15] R v Gladue, at paras 61-65; R v Williams, [1998] 1 SCR 1128, at para 58; and AFN Submission, supra note 4.

[16] R v Gladue, at para 83.

[17] R v Ipeelee, at para 59.

[18] Kent Roach, “One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal” (2008-2009) 54 Crim LQ 470; Renée Pelletier, “The Nullification of Section 718.2(e) – Aggravating Aboriginal Over-representation in Canadian Prisons” (2001) 39 Osgoode Hall LJ 469; Adam Vasey, “Rethinking the Sentencing of Aboriginal Offenders: The Social Value of s 718.2(e)” (2003) 15 Windsor Rev Legal & Soc Issues 73; Ruby, supra note 35 at pp 661-663; and Pfefferle, supra note 6.

[19] R v Ipeelee, at para 81.

[20] R v Ipeelee, at para 77.

[21] R v Ipeelee, at para 84.

[22] AFN Submission, supra note 4; Hadley Friedlan, “Different Stories: Aboriginal People, Order, and the Failure of the Criminal Justice System” (2009) 72 Sask L Rev 105; Elizabeth Adjin-Tettey, “Sentencing Aboriginal Offenders: Balancing Offenders’ Needs, the Interests of the Victims and Society, and the Decolonization of Aboriginal Peoples” (2007) 19 Can J Women & L 179; and Law Reform Commission of Canada, Aboriginal Peoples and Criminal Justice: Equality, Respect and the Search for Justice, (Ottawa: Law Reform Commission of Canada, 1991).

2 thoughts on “Colonial Sentencing: Incarcerating Aboriginal people – Part II

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