Colonial Sentencing: Incarcerating Aboriginal people – Part III

Part I and Part II.

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.[1] 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,[2] 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.[3] 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.[4] 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.



Aboriginal Affairs and Northern Development Canada, “Aboriginal Peoples and Communities”, online: < >.

ADJIN-TETTEY, Elizabeth, “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.

ARMITAGE, Andrew, Comparing the Policy of Aboriginal Assimilation: Australia, Canada and New Zealand (Vancouver: UBC Press, 1995).

BALA, Nicholas, Youth Criminal Justice Law, 2nd ed (Toronto: Irwin Law, 2009).

BARNETT, Laura, et al, Legislative Summary – Bill C-10, (Ottawa: Library of Parliament, 2012).

BOE, Roger E., “Aboriginal inmates: Demographic trends and projections” (2000) 12(1) Forum on Corrections Research 7, Correctional Service of Canada.

Canadian Corrections Association, Indians and the Law (Ottawa: Queen’s Printer, 1967).

CHARTRAND, Larry N, “Aboriginal Peoples and Mandatory Sentencing” (2001) 39 Osgoode Hall LJ 449.

FRIEDLAN, Hadley, “Different Stories: Aboriginal People, Order, and the Failure of the Criminal Justice System” (2009) 72 Sask L Rev 105.

GRAMMOND, Sébastien, Aménager la Coexistence – Les Peuples Autochtones et le Droit Canadien (Cowasville (QC): Éditions Yvon Blais, 2003).

GRAMMOND, Sébastien Identity Captured by Law, (Montréal/Kingston: McGill-Queen’s University Press, 2009).

HINDLE, Karen, & Philip Rosen, Restorative Justice – A Complementary Approach to Resolving Criminal Justice Issues, (Ottawa: Library of Parliament, 2004).

JACKSON, Michael, “Locking Up Natives in Canada” (1989) 23 UBC L Rev 215.

Law Reform Commission of Canada, Aboriginal Peoples and Criminal Justice: Equality, Respect and the Search for Justice, (Ottawa: Law Reform Commission of Canada, 1991).

MALLEA, Paula, The Fear Factor: Stephen Harper’s “Tough on Crime” Agenda, (Ottawa: Canadian Centre for Policy Alternative, 2010).

PELLETIER, Renée “The Nullification of Section 718.2(e) – Aggravating Aboriginal Over-representation in Canadian Prisons” (2001) 39 Osgoode Hall LJ 469.

PFEFFERLE, Brian R, “Gladue Sentencing: Uneasy Answers to the Hard Problem of Aboriginal Over-Incarceration” (2006-2008) 32 Man LJ 113.

Public Safety Canada, “Corrections and Conditional Release Statistical Overview”, online: < >.

ROBERTS, Julian V., & Ronald Melchers, “The Incarceration of Aboriginal Offenders: Trends from 1978 to 2001” (2003) 45 Can J Crim & Crim Just 211.

Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People, vol 1 (Winnipeg: Public Inquiry into the Administration of Justice and Aboriginal People, 1991).

Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back, vol 1 (Ottawa: Supply and Services Canada, 1996).

Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, UNESCOR, 2004, Addendum – Mission to Canada, UN Doc E/CN.4/2005/88/Add.3.

ROACH, Kent, Criminal Law, 5th ed. (Toronto: Irwin Law, 2012).

ROACH, Kent, “One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal” (2008-2009) 54 Crim LQ 470.

Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: Supply and Services Canada, 1996).

RUBY, Clayton C, Sentencing, 8th ed (Markham (ON): Lexis Nexis, 2012).

RUDIN, Jonathan, “Aboriginal Over-representation and R. v. Gladue: Where We Were, Where We Are and Where We Might Be Going”, in J. Cameron & J. Stribopoulos, eds., The Charter and Criminal Justice: Twenty-Five Years Later, (Markham (ON): LexisNexis, 2008).

RUDIN, Jonathan, “Addressing Aboriginal Overrepresentation Post- Gladue: A Realistic Assessment of How Social Change Occurs” (2009) 54 Crim LQ 447.

SCHMEISER, D. A., The Native Offender and the Law (Ottawa: Law Reform Commission of Canada, 1974)

Statistic Canada, “Aboriginal Population at a Glance”, online: < >.

Statistic Canada, “Adult correctional services, admissions to provincial, territorial and federal programs”, online: < >.

Statistic Canada, “Adult Correctional Services in Canada, 2008/2009”, online: < >.

Statistic Canada, “Youth correctional services, admissions to provincial and territorial programs, by province and territory”, online: < >.

Submission of the Assembly of First Nations on Bill C-10 to the Senate Standing Committee on Legal and Constitutional Affairs, 41st Parliament, 1st Session.

Submission of the Canadian Bar Association, on Bill C-10 to the Senate Standing Committee on Legal and Constitutional Affairs, 41st Parliament, 1st Session.

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.

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.

United Nations Declaration on the Rights of Indigenous Peoples, GA Res 295, UNGAOR, 61st Sess, Annex, UN Doc A/RES/61/295 (2007).

United Nations Development Group, Guidelines on Indigenous Peoples’ Issues, (New York: United Nations, 2009).

VASEY, Adam, “Rethinking the Sentencing of Aboriginal Offenders: The Social Value of s 718.2(e)” (2003) 15 Windsor Rev Legal & Soc Issues 73.

WILLIAMS, Melissa S., “Criminal Justice, Democratic Fairness, and Cultural Pluralism: The Case of Aboriginal Peoples in Canada” (2001-2002) 5 Buff Crim L Rev 451.


Criminal Code, RSC 1985, c C-46

Indian Act, RSC 1985, c I-5

Safe Streets and Communities Act, SC 2012, c 1

The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3

The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

Youth Criminal Justice Act, SC 2002, c 1


Corbière v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203

Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73

Quebec (Attorney General) v Moses, 2010 SCC 17

R v Gladue, [1999] 1 SCR 688

R v Ipeelee, 2012 SCC 13

R v M (CA), [1996] 1 SCR 500

R v Powley, 2003 SCC 43

R v Smith, [1987] 1 SCR 1045

R v Williams, [1998] 1 SCR 1128

[1] Grammond, supra note 1 at p 414; and Ruby, supra note 35 at pp 651-661.

[2] See Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73.

[3] S 35(1) & (2) of The Constitution Act, 1982; and Quebec (Attorney General) v Moses, 2010 SCC 17.

[4] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 295, UNGAOR, 61st Sess, Annex, UN Doc A/RES/61/295 (2007).

3 thoughts on “Colonial Sentencing: Incarcerating Aboriginal people – Part III

  1. Pingback: Colonial Sentencing: Incarcerating Aboriginal people – Part III | jurisblogger

  2. Pingback: Colonial Sentencing: Incarcerating Aboriginal people – Part II | jurisblogger

  3. Pingback: Colonial Sentencing: Incarcerating Aboriginal people – Part I | jurisblogger

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.