BarTalk June 2000
Volume 12, Number 3

by Perry Shawana

Recent amendments to the Criminal Code of Canada have the potential to change how Aboriginal people are sentenced. Section 718 of the Code prescribes the purposes and principles of sentencing and was recently amended to include “the circumstances of Aboriginal offenders”. Section 718.2 (e) of the Code (“the amendment”) reads:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(e) 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.

The Supreme Court of Canada has considered the amendment in R. v. Gladue, [1999] 1 S.C.R. 688, 23 C.R. (5th) 197, 133 C.C.C. (3rd) 385. The Court recognized that the amendment is ameliorative in nature, and intended to curb the long recognized trend of the over representation by Aboriginal people in penal institutions.

In R. v. Gladue it was held that there is a judicial duty to give real force to the amendment. Judges must consider the systemic factors that bring Aboriginal offenders before the Court, and the types of sentencing procedures and sanctions which may be appropriate because of the offenders’ Aboriginal connection.

There are several principles that should be kept in mind when representing Aboriginal people. Some of these principles include:

• Section 718.2 (e) applies to all Aboriginal people – Indian, Metis and Inuit. An Aboriginal community should be defined to include any network of support;

• Section 718.2 (e) does not replace traditional sentencing principles, but rather complements them. The goal is to restore the community so that the criminal justice system is relevant to Aboriginal people. The section is intended to treat Aboriginal people fairly by taking into account their difference;

• Section 718.2 (e) does not mean lesser sentences but recognizes that incarceration is more harmful to the Aboriginal community as a whole. The offender should be accountable to the community. Incarceration may still be appropriate;

• The right to have particular attention paid to his/her circumstances as an Aboriginal offender may be waived, and where there is no waiver of the right judges have the duty to acquire that information and to be aware of alternatives to incarceration; and

• The absence of alternative sentencing programs does not eliminate the duty of a judge to consider the special circumstances of an Aboriginal offender or to impose a sentence that takes into account principles of restorative justice.

The Aboriginal community should have a voice in sentencing offenders from their community. Professionals involved in the criminal justice system have a responsibility to actively seek out the special circumstances that bring an Aboriginal offender before the Courts and identify alternatives to incarceration.

For information about the Aboriginal community in your area contact your local legal aid office, native community law offices, tribal councils, friendship centres, and individual First Nations administration offices. The Ministry of Aboriginal Affairs also publishes a directory of Aboriginal organizations in BC. See www.gov.bc.ca/aaf or call 250.356.2394.

Perry Shawana is a member of the BC Branch Equality Committee and is Chair of First Nations Studies at the University of Northern British Columbia.

This article was published in the June 2000 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.