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How aboriginal sentencing works

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Canadian law instructs courts to weigh special cultural considerations when meting out punishment to an aboriginal person convicted of a crime. It applies to all Aboriginal Peoples, to both status and non-status Indians, regardless of whether they live on- or off-reserve.

It’s spelled out in s. 718.2 of the Criminal Code, which instructs judges that: “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.”

More explanation is found in a landmark Supreme Court of Canada case R. v. Gladue. It adds that, when imposing sentences, a judge must consider “the unique systemic or background factors” that contributed to the offence and also what sort of sentence is merited, “in the circumstances for the offender because of his or her particular aboriginal heritage or connection.”

This doesn’t mean that Aboriginal Peoples get a free pass or automatic lighter sentences when committing crimes, but rather is an acknowledgement of a group that faces unique adversity in Canada.

As R. v. Gladue explains, “Section 718.2 (e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed.”

Rather, its purpose is to “ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.”

That “restorative approach,” also called restorative justice, is a correctional approach with a broader view of the impact of crime. It focuses less on just the punitive aspect of the legal system, but also on healing, reintegration, prevention, and reparation.

Gladue itself was a 1995 case in which the aboriginal defendant, Jamie Tanis Gladue, appealed her three-year sentence for manslaughter. At trial, the judge took into account a number of mitigating factors, but didn’t specifically consider her aboriginal background, saying it didn’t apply to those living off-reserve.

The Supreme Court appeal said the trial and appeal court judges erred and that aboriginal sentencing principles apply no matter where the accused lives. However, it also said Gladue’s sentence was appropriate, and her heritage wouldn’t allow any reduction.

A more illustrative case could be 2015’s R. v. Romie, a sexual assault case. While the Criminal Code suggests a maximum 10 years, Romie got two years less a day.

The trial judge said he, as required, had taken judicial notice of systemic and background factors that have impacted Mr. Romie as well as his specific circumstances.”

Those included Romie’s own problems with alcohol abuse as well as a very troubled childhood plagued by alcoholism and domestic violence.

Some critics, including an aboriginal MLA from the Northwest Territories have called for abolition of aboriginal sentencing, saying it creates a two-tiered justice system. However, it’s firmly enshrined in the Criminal Code and hasn’t faced any legal challenge to date.

Read more:

Restorative Justice

 R. v. Gladue