An analysis of public support for special consideration of aboriginal offenders at sentencing

Abstract

The 1996 Criminal Code amendments which require judges to consider "all other sanctions other than imprisonment that are reasonable in the circumstances… with particular attention to the circumstances of Aboriginal offenders" (Section 718.2(e)) are obviously controversial. Controversy did not disappear with the Supreme Court's assessment of this section as being legitimate. The Supreme Court of Canada in Gladue (1999) made it reasonably clear that the Government's goal in creating this subsection was legitimate: addressing the over-representation of aboriginal people in Canada's prisons. The Supreme Court noted that "The drastic over-representation of Aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in signaling out Aboriginal offenders for distinct sentencing treatment in s.718.2(e), intended to attempt to redress this social problem to some degree" (Gladue, para. 64).