3. Reforming Aboriginal Sentencing
This section outlines possible course of actions to remedy the over incarceration of Aboriginal people through a reform of Aboriginal sentencing. In all circumstances, it is suggested that the government should at least enact an exception to mandatory minimum sentences for Aboriginal people if the circumstances warrants it in order to fully allow sentencing judge to implement s 718.2(2) of the Criminal Code. It is also suggested that a reform of Aboriginal sentencing should be accompanied with other socio-economic measures to properly deal with the over incarceration of Aboriginal people. More importantly, I acknowledge the fact that I am not Aboriginal and do not speak in Aboriginal people’s name. In the end effective and long-lasting solution will have to emanate and/or receive the accent of Aboriginal people in order to be legitimate and to further decolonisation goals.
A. Improving the Current System
One way to improve the system in order to diminish Aboriginal over incarceration is to give it the tool to adequately implement s 718.2(e) of the Criminal Code and deal with the shortcoming identified in R v Ipeelee. In order to do so, the government should create and fund education program for judges on Aboriginal sentences (Gladue program). The goal of a Gladue program is twofold: (1) to inform judges on their duty to consider Aboriginal circumstances and how to accomplish such duty; and (2) to reduce the amount of prejudice judges might have against Aboriginal people. Gladue programs should be adapted in accordance with the region and the environment (reserve, rural or urban). Such program, with proper modification, should be made available to other actors of the criminal justice system, especially Crown prosecutors. These programs should be mandatory and should be first applied to “front line” actors, meaning those who frequently deal with Aboriginal offenders. While review of sentencing decisions should be left in the hand of appellate courts, the government should put in place a review system to monitor the performance of the programs and to ensure that the bias of Crown prosecutors are diminished by shining a light on it (a form of accountability measure).
In order to facilitate the implementation of Gladue programs, sentencing circles should become a mandatory consideration if the victim consents, even in the case of allegedly serious offences. A sentencing circle is a process where the offender, the victim(s), elders and members of the community meet to determine the appropriate sentence in the spirit of restorative justice. Mechanism for sentencing circles should be developed in all Aboriginal communities, including urban ones, with necessary modification. When sentencing circles are used, their recommendation should be binding on all parties and on the sentencing judge. Appeal of such sentences should only be available to the defense on the grown of a palpable and overriding error. When sentencing circles are not an option, the government should put in place detailed guidelines for Crown prosecutors and judges on how to proceed in order to properly consider the circumstances of an Aboriginal offender and how this should translate in a sentence, focusing on restorative justice. The guidelines and Gladue programs should be developed with the inputs of national Aboriginal organizations, Aboriginal community leaders, and Aboriginal and sentencing law experts.
B. Reforming Aboriginal Peoples Sentencing Policy
Another way to address the issues of Aboriginal sentencing is to acknowledge that settlers and the colonizer state should not determine how to punish Aboriginal offenders for their crimes. The government should thus attempt to adopt a sentencing policy for Aboriginal people by Aboriginal people. In order to adopt a National Aboriginal Peoples Sentencing Policy, the government should put in place an at large consultation scheme, in the spirit of reconciliation, with Aboriginal communities, Indian Bands’ governments, provincial and territorial governments (especially the Northw