Area of Law: Aboriginal Law
Answer # 0661
Sentencing of First Nation persons in the criminal justice systemRegion: Ontario Answer # 0661
The following information has been provided with the assistance of Lakehead University Faculty of Law, Aboriginal Law Studies.
Aboriginal offenders & Gladue Principles
In 1996, the Criminal Code was amended so that no offenders should be jailed (deprived of liberty) if less restrictive measures are appropriate. The law includes special considerations for Aboriginal offenders.
Section 718.2(e) of the Criminal Code provides:
“A court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”
Although Section 718.2(e) applies to everyone, it does have a special focus placed on Indigenous Peoples, in an attempt to reduce the high rates of incarceration caused by discriminatory policy.
The Youth Criminal Justice Act carries a similar provision under section 38(2)(d). In 1999, section 718.2(e) was first challenged by Jamie Gladue, an Aboriginal woman, in the Supreme Court of Canada case, R v Gladue,  1 SCR 688. This case brought to light the fact that there is an over representation of Aboriginal people in Canada’s criminal justice system.
The Court concluded that a lack of understanding of Aboriginal people lead to systematic racism. The unbalanced ratio of imprisonment rates flow from many factors such as:
- the generational effects of colonization and displacement
- the impact of residential schools
- the loss of cultural identity
The Canadian justice system recognized that Canada’s Aboriginal peoples have been marginalized significantly resulting in communities left impoverished and disadvantaged. The Court held that judges should consider the unique circumstances surrounding the offence and parties to the offence, and take into account the unique factors in relation to Aboriginal people. These factors are referred to as the Gladue Principles:
(A) The unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and
(B) 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.
The Court also stated that sentencing Aboriginal offenders to jail is often inappropriate, given their difference in background, which reduces the likelihood of rehabilitation, and the discrimination that exists in penal institutions.
How Gladue applies in Canadian courts
Every criminal court in Canada is required to take Gladue factors and principles into consideration when sentencing an Aboriginal person. Courts in Ontario are also required to take a person’s Aboriginal background and the Gladue principles into account at bail hearings, and a Gladue report is created for the court to consider prior to sentencing.
In addition, there are specialized courts, called Gladue courts, where the legal professionals who work there, such as Crown Counsel, Duty Counsel, and Probation and Parole Officers, have expertise in Aboriginal programs and services. For more information on Gladue courts and practices, please see the Department of Justice Canada’s publication, Gladue Practices in the Provinces and Territories.
Aboriginal people should self-identify as First Nations, Métis or Inuit
When Aboriginal persons are charged with a crime, it is important that they tell their legal advisor, and/or those in the criminal justice system (duty counsel, crown etc.) of their Aboriginal ancestry. This applies to both those living on and off reserve, as well as people who are status and non-status.
It is important that people identify themselves as Aboriginal persons so that their legal counsel can better help them. There are laws, including in the Criminal Code, the Youth Criminal Justice Act, and provincial Family Services Acts, which take the unique Aboriginal heritage into consideration.
By applying section 718.2(e) to cases that come before the courts, Aboriginal people found guilty of less serious crimes have the option to receive punishments that are more likely to result in rehabilitation and which are more culturally appropriate. For example, a sentencing alternative, such as diversion, may be applied. Diversion is a negotiated resolution. After charges are laid, the offender is given the chance to participate in the program, which could require the offender to donate to a charity, write a letter of apology or perform community service. Once the program is completed, the offender’s charge is dismissed. First Nations have diversion programs for minor offences.
Policing of Aboriginal communities
First Nations Policing Program (FNPP)
Under the FNPP, Aboriginal communities have agreements with the federal and provincial/territorial governments regarding police services. Through the FNPP, there are two types of policing agreements:
1. Where an Aboriginal community manages its own services, in accordance with provincial policing laws and regulations;
For example: in British Columbia the Stl’atl’imx (Stat-la-mic) Tribal Police Service is a First Nations administered police force with a police board comprised of community members; in Ontario, there are First Nations Constables, who are appointed by the Commissioner of the Ontario Provincial Police (OPP) and approved by the Aboriginal community. For more information, please see OPP’s publication, First Nation Policing in Ontario,
2. Where a dedicated group of police officers within an existing police force (usually the RCMP) provides policing services to an Aboriginal community.
The FNPP is funded by both the federal and provincial/territorial governments, and is administered by the Aboriginal Policing Directorate. The Directorate has many duties, including:
- providing policy advice on Aboriginal public safety and justice issues
- conducting research and reporting about the performance of the FNPP
- acting as the departmental lead on Aboriginal self-governance as it relates to the administration of justice.
Some bands have their own “band constables” who do not have official police status. These constables enforce First Nations by-laws.
There are a number of organizations and programs that provide legal assistance for Aboriginal people throughout Canada. For more information, visit the Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) website. For further resources, check our Aboriginal Law links.
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