Sentencing the Aboriginal Offender

In Canadian law people of Aboriginal background face a different sentencing regime than other Canadians. The Criminal Code provides for restraint in the use of imprisonment for Aboriginal offenders. The Criminal Code provides :

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

(e) all available sanctions or options 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, in a case called Gladue, concluded that Aboriginal offenders are more adversely affected by incarceration and less likely to be rehabilitated by it, because imprisonment is often culturally inappropriate. Jail also facilitates further discrimination towards Aboriginal offenders.

The Supreme Court held, in a later case, Ipeelee that "courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples."

Aboriginal people are incarcerated at rates well above their percent of the general population. The Supreme Court has said the higher rate of imprisonment for Aboriginal offenders flows from a number of sources including "low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness and community fragmentation." The Court also noted bias and discrimination against Aboriginal people within the justice system.

The Youth Criminal Justice Act, which governs the prosecution of young people for criminal actions, contains a subsection similar to subsection 718.2(e).

What this means is that a restorative justice process may be more appropriate for an Aboriginal offender. Such processes focus on healing those affected by the criminal act, including the offender, and so are more in line with traditional Aboriginal justice. In addition, a restorative justice approach will often allow for no jail time, which helps reduce the over-representation of Aboriginals offenders in Canadian jails.
This does not, however, mean that all Aboriginal offenders automatically qualify for lighter sentences than non-Aboriginal offenders. The principles of sentencing apply to all offenders equally, and so in many situations such a remedy will not be appropriate to the circumstances of the case. In general the more serious the offence the less difference there will be between the sentence received by an Aboriginal and a non Aboriginal offender.