Published on November 24, 2017
Aboriginal Persons & Criminal Justice: The Role of Rehabilitation: Aboriginal Persons & Criminal Justice: The Role of Rehabilitation Law 202 – aboriginal law In this video: In this video Over-representation of Aboriginal persons in Canada’s criminal justice system An examination of factors that have led to the over-representation of Aboriginal persons Attempts to mitigate over-representation and sentencing reform The effectiveness of modern efforts on reducing over-representation Slide3: Population of Aboriginal Offenders in Canada 6 % Aboriginal Identity Population = 4% Aboriginal Offender Population = 24% 5% 5% 2 % 10% 59% 76% 38% 20% 49% 0 % 35% 53% 5% 1 % 3 % 3 % 14% 2% 16% 15% 6 % 5 % 25% 50% 55% Aboriginal Sentencing and Incarceration: Aboriginal Sentencing and Incarceration Aboriginal persons represent a disproportionate population in prisons Aboriginal persons represent 4% of national population, but 24% of federal inmates In some provinces, Aboriginal persons represent up to 60% of the inmate population What Accounts for this Disproportionality? : What Accounts for this Disproportionality? Historically, Aboriginal people have faced systemic and direct discrimination Residential schooling Sixties Scoop and foster systems Cultural interference Forced re-location Lack of resources and opportunity Minimal Aboriginal-specific institutions Few job opportunities Limited access to legal assistance or funding Ongoing poverty, abuse, racism, and family violence Sentencing Reform: Sentencing Reform 1996 sentencing Reform – Criminal Code of Canada S.718.2(e) “A court that imposes a sentence shall also take into consideration[ … ] (e) all available sanctions other than imprisonment [ … ] , with particular attention to the circumstances of aboriginal offenders ” R v. Gladue [ 1999] and R v. Ipeelee  Supreme Court emphasized the need to consider systemic and background factors that bring Aboriginal offenders before the court Stressed restorative justice approach Gladue Reports Report that outlines systemic or background factors that is used in bail and sentencing hearings Increased use over the years, but not always used Attempts to Further Mitigate Over-Representation: Attempts to Further Mitigate Over-Representation Gladue Courts Specialized court to address over-representation of Aboriginal offenders Different approach than historical Euro-Canadian approach Recognizes the cultural harm that Aboriginal persons have and continue to experience Specialization of the staff allows for greater emphasis on restorative justice Sentencing circle; Higher emphasis on rehabilitation and preventing recidivism General Principles of Sentencing Gladue Emphasis Deterrence – general/specific Denunciation Rehabilitation Reparation Incapacitation Less attention on denunciating and deterring others from the offence Largest emphasis is on rehabilitation and reducing recidivism Communitive and Resource oriented Have any Attempts been Successful at Mitigating Over-Representation?: Have any Attempts been Successful at Mitigating Over-Representation? Aboriginal Sentencing and Incarceration Paradigm shift towards community-based programs, sentencing circles Emphasis on prevention and rehabilitation Impact of courts on rehabilitation A more culturally appropriate sentence More likely to result in rehabilitation Interaction with community members (elders, organizations, victims) The Pro’s and Con’s: The Pro’s and Con’s Pro’s – reduced recidivism (up to 84%) S entencing is less punitive and more community-rehab based (less incarceration, more ‘community service’) 1 in 15 Aboriginal offenders use a Gladue court 1 in 7 accused Aboriginal persons use a Gladue report in their legal proceedings Con’s – few specialized courts exist (only 12 in all of Canada) Aboriginal persons still have a lack of resources and access (money, legal aid, location, etc.) On-going systematic discrimination What’s next?: What’s next? What can be done to improve sentencing for Aboriginal offenders? Continue to recognize the hardships faced by Aboriginal people Continue to eliminate discrimination and improve access Increase the allocation of resources to help Aboriginal people More legal aid; More Gladue courts; More personnel training There are other methods and approaches that can improve the justice system to help Aboriginal offenders. We must recognize that despite all efforts, Aboriginal offenders continue to be adversely discriminated against. References : References Slide 3 – Information adopted from 2014 Stats Canada data- https:// www.statcan.gc.ca/tables-tableaux/2014sum-som/l01/cst01/demo14a-eng.html Slide 5/8/9 – Truth and Reconciliation Commission of Canada. Canada’s Residential Schools, Volume 5: The Legacy. 218-240 R v. Gladue ,  1 S.C.R. 688 R v. Ipeelee ,  1 S.C.R. 433 Slide 7/8 – Borrows, John. Recovering Canada: The Resurgence of Indigenous Law Slides 6/8 – Bond et. al. The Impact of Indigenous Status on Adult Sentencing Slides 7 – Rudin , Jonathan. Aboriginal Legal Services. Gladue Impacts.