Key Factors Relevant to Indigenous Sentencing Concerns

Canadian sentencing laws recognize that some categories of people in society are different than others.

An individual’s Aboriginal status is considered in determining a sentence because his or her circumstances are different from non- Aboriginal offenders.

One reason why the Criminal Code treats Indigenous people uniquely is because Indigenous people are overrepresented in Canadian prisons. To deal with the overrepresentation of Indigenous people in prison, s. 718.2(e) directs judges to undertake the sentencing of Indigenous offenders differently. First, the sentencing judge should consider "the unique systemic or background factors which may have played a part in bringing the particular Indigenous offender before the courts”.

Some of these background factors include the low incomes, high unemployment, lack of opportunities, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation that lead Indigenous people to have a higher incidence of crime and incarceration.

Systemic factors include the widespread discrimination that Indigenous people experience both in, and outside, penal institutions.

Second, the sentencing judge should consider "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”.

This is because the ideals of deterrence, separation, and denunciation do not accord with the understanding of sentencing held by Indigenous offenders and their community. Most traditional Indigenous conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. Restorative justice is an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to a crime’s occurrence. Restorative justice determines a particular sanction by considering the needs of the victims, and the community, as well as the offender.

An example of this can be seen in circle sentencing.

In this sense, the community participates in resolving the conflict. Those involved sit in a circle to break down the formality that can characterize a courtroom sentencing hearing. An emphasis is placed on healing and consensus building among all who are affected by the crime.  LawLessons.ca Section 2: Criminal Law