3. Reforming Aboriginal Sentencing
This section outlines possible course of actions to remedy the over incarceration of Aboriginal people through a reform of Aboriginal sentencing. In all circumstances, it is suggested that the government should at least enact an exception to mandatory minimum sentences for Aboriginal people if the circumstances warrants it in order to fully allow sentencing judge to implement s 718.2(2) of the Criminal Code. It is also suggested that a reform of Aboriginal sentencing should be accompanied with other socio-economic measures to properly deal with the over incarceration of Aboriginal people. More importantly, I acknowledge the fact that I am not Aboriginal and do not speak in Aboriginal people’s name. In the end effective and long-lasting solution will have to emanate and/or receive the accent of Aboriginal people in order to be legitimate and to further decolonisation goals.
A. Improving the Current System
One way to improve the system in order to diminish Aboriginal over incarceration is to give it the tool to adequately implement s 718.2(e) of the Criminal Code and deal with the shortcoming identified in R v Ipeelee. In order to do so, the government should create and fund education program for judges on Aboriginal sentences (Gladue program). The goal of a Gladue program is twofold: (1) to inform judges on their duty to consider Aboriginal circumstances and how to accomplish such duty; and (2) to reduce the amount of prejudice judges might have against Aboriginal people. Gladue programs should be adapted in accordance with the region and the environment (reserve, rural or urban). Such program, with proper modification, should be made available to other actors of the criminal justice system, especially Crown prosecutors. These programs should be mandatory and should be first applied to “front line” actors, meaning those who frequently deal with Aboriginal offenders. While review of sentencing decisions should be left in the hand of appellate courts, the government should put in place a review system to monitor the performance of the programs and to ensure that the bias of Crown prosecutors are diminished by shining a light on it (a form of accountability measure).
In order to facilitate the implementation of Gladue programs, sentencing circles should become a mandatory consideration if the victim consents, even in the case of allegedly serious offences. A sentencing circle is a process where the offender, the victim(s), elders and members of the community meet to determine the appropriate sentence in the spirit of restorative justice. Mechanism for sentencing circles should be developed in all Aboriginal communities, including urban ones, with necessary modification. When sentencing circles are used, their recommendation should be binding on all parties and on the sentencing judge. Appeal of such sentences should only be available to the defense on the grown of a palpable and overriding error. When sentencing circles are not an option, the government should put in place detailed guidelines for Crown prosecutors and judges on how to proceed in order to properly consider the circumstances of an Aboriginal offender and how this should translate in a sentence, focusing on restorative justice. The guidelines and Gladue programs should be developed with the inputs of national Aboriginal organizations, Aboriginal community leaders, and Aboriginal and sentencing law experts.
B. Reforming Aboriginal Peoples Sentencing Policy
Another way to address the issues of Aboriginal sentencing is to acknowledge that settlers and the colonizer state should not determine how to punish Aboriginal offenders for their crimes. The government should thus attempt to adopt a sentencing policy for Aboriginal people by Aboriginal people. In order to adopt a National Aboriginal Peoples Sentencing Policy, the government should put in place an at large consultation scheme, in the spirit of reconciliation, with Aboriginal communities, Indian Bands’ governments, provincial and territorial governments (especially the Northwest Territory and Nunavut considering their high proportion of Aboriginal people), Aboriginal organizations and any other interested and affected parties. The idea is to create sentencing mechanism and sentences for Aboriginal people by Aboriginal people while respecting victims and Aboriginal culture.
The consultation should be done as openly as possible. It should not start with any propositions or requirements. In order to facilitate consultation, government officials will have to travel around the country to ensure that most communities are visited. Stakeholders should be warned in advance of the consultation to allow for an appropriate time to prepare for it. Funds should be made available on a needs basis to allow all stakeholders to meaningfully participate in the consultation process. The consultation team should be largely composed of Aboriginal people, partly government officials and partly independent experts. At the beginning of a consultation, someone should explain the problem of over incarceration of Aboriginal people and the role of sentencing. The consultation would lead to drafting the policy by the consultation team, Department of Justice and Department of Aboriginal Affairs and Northern Development officials not involved in consultation and academics involved in Aboriginal and Sentencing Law. The draft policy should be distributed to relevant stakeholder for last comments. The final policy should serve as the basis of new processes and sentences for Aboriginal people. The policy should also be approved by representatives of Aboriginal Peoples before coming into force. It is further recommended, in order to maximize resources, that during such consultation other aspect of the criminal justice system and Aboriginal Peoples be explored in order to amass information that could be both useful for the drafting of the policy and the creation of other policies and programs on Aboriginal justice.
C. Aboriginal Sentencing in the Hands of Aboriginal Peoples
The last proposed way to address Aboriginal over incarceration through sentencing is to go one step further and acknowledge that not only is the government not well placed and ill-informed to make decisions regarding Aboriginal justice, but that it should not make those decisions in the first place. The proper way to deal with the problem – and in my opinion the only way that truly further ideals of decolonization – would thus be to transfer authority over sentencing, minimally, or over criminal justice, to Aboriginal Courts or other institutions created according to the local custom and culture of Aboriginal Peoples. This would foster the self-determination right of Aboriginal Peoples. Some governing structures are already adequate to establish such Courts such as the Nunavut government or modern Aboriginal treaties governments. Other structures would probably need reforming such as many Indian Band governments (depending on its legitimacy and effective control over community affairs). Some structure would need to be created from scratch (Métis usually do not have effective government). In the end, Aboriginal Peoples should determine what the appropriate structures are. A funding scheme should be established at first to give the ability to Aboriginal communities to implement their new or improved structures. After set up, communities could establish the mode of financing they desire. In certain case the federal government will need to create such a court itself and remain responsible for it, such as in large urban centres. Such courts should be set up only after appropriate and exhaustive consultation of stakeholders, provincial and municipal governments, and members of those communities. Furthermore, the control of such courts should remain in the hand of Aboriginal Peoples.
The transfer to Aboriginal communities of sentencing and/or criminal justice should be enshrined in a treaty in order to give to those transfer constitutional paramountcy. Considering the great diversities of Aboriginal Peoples, these schemes will vary between communities to reflect customs, culture and environment. It is however impossible to determined what they would look like and how they would function in advance. This solution would have the advantage of giving legitimacy to sentencing regime for Aboriginal people and make them responsible for their own justice, and would largely comply with the goals of the United Nations Declaration on the Rights of Indigenous Peoples and self-determination rights. This solution would however remain a partial one as long as other aspects of Aboriginal governance are not in the hands of Aboriginal Peoples. Effective self-governance is, in my opinion, the only sustainable and holistic solution for Aboriginal over incarceration and for remedying the effects of colonization.
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R v Gladue,  1 SCR 688
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R v M (CA),  1 SCR 500
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R v Smith,  1 SCR 1045
R v Williams,  1 SCR 1128
 Grammond, supra note 1 at p 414; and Ruby, supra note 35 at pp 651-661.
 See Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73.
 S 35(1) & (2) of The Constitution Act, 1982; and Quebec (Attorney General) v Moses, 2010 SCC 17.
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