Textbook Notes (369,035)
Canada (162,359)
Sociology (1,513)
SOC219H5 (35)

Aboriginal Justice Policy in Canada.docx

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Nicole Myers

Aboriginal Justice Policy in Canada Canada‟s CJS has failed in regards to all Aboriginals – pointed out by the Aboriginal Justice Inquiry of Manitoba (1991) and the Royal Commission on Aboriginal Peoples (RCAP) Policies are formed by all levels of government (federal and provincial/territorial) and the RCMP, Supreme Court of Canada, and sometimes the lower courts Federal: 1. Criminal Code 2. Constitution: Indian Act, Section 35 of Canadian Charter of Rights and Freedoms Provincial – Ontario Court of Justice & Ministry of the Attorney General of Ontario: Administration of justice, including application of the Criminal Code Supreme Court of Canada: Rulings that bear directly on Aboriginal people and the CJS  take into account by all trial courts and all levels of government Indian Act: - Effective 1876; many amendments since - Refers only to Aboriginal people who are registered with the federal Department of Indian and Northern Affairs in having „status‟  Indian government - Grants by the Crown of reserve lands only apply to certain Aboriginal people - „non-status‟ Indians cannot register and thus normally not live on reserves - Inuit and Metis are not covered by the Act and thus don‟t receive benefits - Aboriginals increasingly live in urban settings (54% in 2006)  major implications for policy development in society, including the CJS Overrepresentation: The Extent of the Problem - Extreme overrepresentation of Aboriginals as incarcerated offenders: o 2008/09 Office of the Correctional Investigator: incarceration rate for Aboriginal people has increased, are almost 9 times the national average, and Aboriginals are 1/5 of federally incarcerated o 32% of federally incarcerated women are Aboriginal - Statistics Canada, in 2007/08: Aboriginals were 22% of those sentenced to any level of government custody, but are only 3% of Canada‟s total population o Proportion of Aboriginal offenders to non-Aboriginal offenders continues to increase, although rates vary by province/territory o Among provinces, representation of Aboriginal adults in custody is higher - Incarceration rates of Aboriginal youth are higher than non-Aboriginal youth o 2005/06: 31% in sentenced custody and 23% in remand o But are only 6% of Canada‟s youth population - Over-incarceration has a negative impact on incarcerated individuals o Nunavut: overcrowding, no programming, difficult for families to visit because they must travel by air, hard to return home after release, gang recruitments o Need to give educational and occupational opportunities equal to those of non-Aboriginals to help in decreasing the incarceration rate - Aboriginals are overrepresented as offenders, victims, and in correctional facilities  CJS is seriously flawed Systematic Discrimination: A Framework for Analysis - Aboriginal people are overrepresented in virtually all aspects of the CJS, including policing, courts, and corrections  widespread bias against Aboriginals, which has translated into systematic discrimination in the CJS - Systematic discrimination: tending to arise from the unconscious implementation of structures or policies which were not intended to be discriminatory but which, owing to the manner in which they interact with larger social structures, have a negative impact on members of certain groups o Used where the application of a standard or criterion, or the use of “standard practice”, creates a negative impact upon an identifiable group that is not consciously intended - Doesn‟t only affect Aboriginals, but also other racialized minority groups - Aboriginals are overrepresented as offenders and victims, and systematic discrimination exists in the CJS for two reasons: 1. Socio-economic marginality a. Structural problems that lead to the social and economic marginality of Aboriginal people b. 2006, median income & employment rates: i. non-Aboriginals - $33,394 & 81.6% ii. Aboriginals - $22,366 & 65.8% iii. First Nations - $19,114 & 60.4% c. Employment rates are even lower in non-urban areas d. Seriously substandard levels of housing, education, and healthcare i. Need much more dwelling repairs than non-Aboriginals ii. Very few adults had attained a university degree iii. High rates of tuberculosis and suicide 2. Colonialism a. Cultural alienation, territorial dispossession, and socio-economic marginalization became increasingly pronounced i. Resulted in crime and alcoholism Policy Development: Attempts to Address the Impacts of Systematic Discrimination - Examples of policies designed to address systematic discrimination (reduce overrepresentation of Aboriginals in the CJS): 1. Changes in the Criminal Code on sentencing (federal government & Supreme Court) 2. Establishment of Gladue (Aboriginal Person) Court in Toronto by Ontario Court of Justice & Attorney General of Ontario 3. Federal Aboriginal Justice strategy Sentencing Policy and Aboriginal People - 1996: amendments to Criminal Code – section 718: guidelines on sentencing which constrains judges‟ decision-making o Aimed to reduce sentences of imprisonment imposed by courts o Section 718.2(e) encourages usage of alternative sanctions than imprisonment, especially in the case of Aboriginals  due to over- incarceration of Aboriginals - 1999: appeals from British Columbia in R. v. Gladue lead the Supreme Court to o Emphasize section 718.2(e) and all Aboriginals should be considered, regardless of where they live (urban, remote, or on reserve) o Recognize roles of poverty, marginalization, and systematic discrimination in overrepresentation of Aboriginals o Emphasize sentencing alternatives through a restorative justice approach, but due to rarity of programs, all alternatives should be considered even if they don‟t have a cultural component  However, there is a lack of adequate restorative justice programming so Aboriginals are still being incarcerated - Section 718.2(e) does not mean Aboriginals will always receive lesser sentences, but that in terms of a violent offence Aboriginals and non-Aboriginals will receive similar sentences - The Supreme Court‟s Gladue judgments are too general and do not give guidelines for sentencing according to the Criminal Code‟s new amendments - Critics Stenning & Roberts declare Gladue a „bad criminal justice policy‟ and that neither the legislation (new amendments) nor the judgment would result in a decrease in Aboriginal overrepresentation 1. Aboriginal overrepresentation is not due to discrimination during sentencing, but rather from a complex variety of factors: higher offending rates due to socio-economic marginalization and discrimination in other areas of the CJS 2. Parity is lost – other minorities suffer from socio-economic marginalization and systematic discrimination, but Aboriginals are only given consideration 3. Alternatives referred to by the court are essentially non-existent - Roach & Rudin argue that judges may apply conditional sentences in place of imprisonment where less serious sanctions could have been imposed prior to section 718.2(e) and Gladue, resulting in net widening for Aboriginal offenders o Conditional sentences are a prison sentence of under 2 years to be served in the community under certain conditions set by a judge  Breaching conditions would lead to actual incarceration for remainder of sentence  Aboriginal offenders are disproportionately likely to offend, reoffend, and breach conditions due to social and economic marginalization (a result of colonialism), which varies throughout Canada and is leading to the emergence of a growing „Aboriginal underclass‟ – group of Aboriginals at greatest risk o Also, judges may impose a conditional sentence of greater duration than an imprisonment sentence - Despite call, government support, and motivation for change, nothing has really changed – why? 1. Enormous scope of problem 2. Limitations of the CJS - Underlying problems should first be addressed; only then will the policy changes introduced make an impact The Gladue (Aboriginal Persons) Court in Toronto - Policy success
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