Key Factors Relevant to Aboriginal Sentencing Considerations

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

 Section 718.2(e) of the Criminal Code addresses Aboriginal sentencing. The section requires a sentencing judge to pay particular attention to the circumstances of Aboriginal offenders and to consider all available sanctions other than imprisonment that are reasonable in the circumstances.

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 Aboriginal people uniquely is because Aboriginal people are overrepresented in Canadian prisons. To deal with the overrepresentation of Aboriginal people in prison, s. 718.2(e) directs judges to undertake the sentencing of Aboriginal offenders differently. First, the sentencing judge should consider "the unique systemic or background factors which may have played a part in bringing the particular aboriginal 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 Aboriginals to have a higher incidence of crime and incarceration.

Systemic factors include the widespread discrimination that Aboriginals 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 traditional sentencing ideals of deterrence, separation, and denunciation do not accord with the understanding of sentencing held by Aboriginal offenders and their community. Most traditional Aboriginal 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. Section 2: Criminal Law


  The Supreme Court of Canada stated s. 718.2(e) is more than simply a reaffirmation of existing sentencing principles but in fact gives,
" . . . direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case.”
KEY: as the court noted, sentencing Judges still (1) must match the offence and the offender, and (2) give a fit sentence.
Therefore, remember the method of analysis done by the sentencing Judge is different for aboriginal offenders.