Appropriate sentencing of Aboriginal (1) offenders has been seen as a persistent challenge in many countries of the world whose populations include Aboriginal minority groups. There are a variety of reasons why this is so. In the first place, in some countries, there is recognition that Aboriginal people have unique traditional, constitutional, and legal rights (based on treaties, customary law, and/or constitutional recognition), often pre-dating the establishment of colonial states, which may entitle them to differential treatment under the law. Most commonly, this refers to a perceived need to treat them in ways that are culturally respectful and appropriate, and which recognize their cultural heritage and uphold their "Aboriginal rights." Secondly, it is commonly maintained that Aboriginal people have historically been, and continue to be, oppressed, discriminated against, and disadvantaged as a result of colonial and postcolonial regimes. This legacy of mistreatment has left Aboriginal people in situations of serious social, political, and cultural disadvantage which, it is argued, need to be taken into account when applying the criminal law to them. Thirdly, in most of these countries (or at least in parts of most of them), Aboriginal people are seriously statistically over-incarcerated, (2) and the sentencing of offenders is often construed as an opportunity through which such over-representation might be alleviated or reduced.
In this article, we review, compare, and contrast the approaches that legislators, courts, and criminal justice policy makers have taken to address the perceived needs of convicted Aboriginal offenders when sentencing them in Canada, Australia, and New Zealand. We have chosen these three jurisdictions for comparison, for five main reasons. All three countries (1) have minority Aboriginal populations; (2) have a statistical over-representation of Aboriginal people in prison; (3) have "common law" legal systems originally imported via British colonization; (4) have adopted, to differing extents and in different ways, specific legal and policy approaches to the treatment of Aboriginal offenders at sentencing, and, finally, (5) the legal and constitutional status of their Aboriginal people varies between the three countries.
Our aim is not to critique the different sentencing approaches but to discern how they have differed between the three countries in recent years and what useful lessons might be learned from such a comparison. As we shall discuss in more detail below, there are several identifiable commonalities in the approach to sentencing Aboriginal offenders in each country. One of these is the perceived need to reconcile special treatment of Aboriginal offenders with three competing sentencing objectives: (1) rehabilitating offenders, (2) recognizing and protecting victims, and (3) protecting communities by reducing or preventing crime. As we shall illustrate, each of the three countries has taken a somewhat different approach in its attempts to reconcile these.
We begin by presenting information about current trends with respect to the sentencing of Aboriginal offenders in each of the three countries, before discussing similarities and contrasts between the approaches taken to this issue in the three jurisdictions. We conclude by highlighting lessons that might usefully be drawn from this comparison.
Background; size and status of the Aboriginal population
Canada has three distinct Aboriginal groups in its population: First Nations People (sometimes referred to as "North American Indians" or Dene), Metis (resulting from intermarriage between First Nations people and Europeans in the 19th century), and Inuit (formerly referred to as "Eskimos"). According to the 2011 Census (Statistics Canada 2013a), just over 1.4 million people (4.3% of Canada's population) identify themselves as Aboriginal; 61% of these identify themselves as First Nations People only, just over 32% as Metis only, and just over 4% as Inuit only. Canada's Aboriginal population is not evenly spread across the country; almost 60% live in one of the four western provinces (Manitoba, Saskatchewan, Alberta, and British Columbia) which together comprise 31% of Canada's total population (Statistics Canada 2013b). They make up the largest proportion of the populations of Canada's two northern territories (Nunavut [86%] and the Northwest Territories [52%]). Aboriginal youth aged 15-24 (the traditionally most crime-prone age group in Canada) constitute 18% of the Aboriginal population, compared with 12% of the non-Aboriginal population. While many Aboriginal people live in (often remote) "Aboriginal communities," the 2006 census revealed that 54% of Aboriginal people live in Canada's urban areas, almost a third of these in the cities of Winnipeg, Edmonton, Vancouver, Calgary, and Toronto (Aboriginal Affairs and Northern Development Canada 2010; Place, 2012; see also LaPrairie 1995b; LaPrairie 1995c). As reported by Knopf (2008: 5-7), Aboriginal Canadians are afflicted by large-scale socio-economic disadvantage. Many live well below the poverty line and experience poor health, including significantly lower than average life expectancy. Education and employment levels are substantially lower than for non-Aboriginal Canadians.
The "over-incarceration" of Aboriginal people
Aboriginal people have long been recognized as statistically overrepresented in Canada's prisons. For example, in 2010/11, "27% of adults in provincial and territorial custody and 20% of those in federal custody involved Aboriginal people, about seven to eight times higher than the proportion of Aboriginal people (3%) in the adult population as a whole" (Dauvergne 2012: 11). Perreault (2009: 23) reports that Aboriginal Canadians are imprisoned at a rate of 756 per 100,000, nearly 10 times the non-Aboriginal rate of 76 per 100,000. (3) Further, the gap between Aboriginal and non-Aboriginal people imprisoned has been steadily widening (Office of the Correctional Investigator 2012: 5). (4)
Other research has shown that rates of over-representation in prison vary significantly between different regions of the country (LaPrairie 2002; LaPrairie and Stenning 2003; Perreault 2009). Perreault (2009), for example, reports that the highest rate of Aboriginal incarceration is in Saskatchewan (1,570 per 100,000 vs. a non-Aboriginal rate of 50 per 100,000) and lowest in the Atlantic Provinces, defined as New Brunswick, Nova Scotia, and Newfoundland and Labrador (280 per 100,000 vs. a non-Aboriginal rate of 80 per 100,000). (5)
Given the above, an issue for at least the last 30 years in Canada has been whether, and if so to what extent, sentencing practices contribute to the over-incarceration of Aboriginal people and whether this might be reduced through legislative sentencing reform. An important consideration to keep in mind is the fact that, unlike Australia (see below), the Canadian constitution allocates the responsibility for legislating criminal law (including criminal sentencing laws) to the federal Parliament, rather than to provincial legislatures. This means, of course, that sentencing laws are supposed to apply uniformly across the country.
Legislative provisions and court decisions
In response to the recommendations of several commission of inquiry reports and parliamentary inquiries, the federal Parliament passed new sentencing legislation, Bill C-41 1995, which, among other things, included a specific provision with respect to the sentencing of Aboriginal offenders (see Stenning and LaPrairie 2004). Paragraph 718.2(e) of the Criminal Code, which was inserted by this 1995 legislation, provided that when sentencing, "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" (emphasis added).
That the inclusion of these last nine words in paragraph 718.2(e) was motivated by the government's desire to address Aboriginal over-incarceration was made clear by the then Minister of Justice, addressing the House of Commons Standing Committee on Justice and Legal Affairs during its consideration of this provision:
The reason we referred specifically there to aboriginal persons is that they are sadly over-represented in the prison populations of Canada. (Canada, House of Commons 1994: 62.15) The task of interpreting what exactly the section 718.2(e) provision required judicial officers to do and how it should affect the sentencing of Aboriginal offenders was left to the courts. Eventually, in 1999 and 2000, the matter came twice before the Supreme Court of Canada, in R v Gladue and R v Wells. The decisions made in these two cases have been the subject of considerable controversy and disagreement over the ensuing years, (6) but the two rulings provided the legal basis for sentencing Aboriginal offenders in Canada for the next decade. Nine core propositions of the two decisions can be summarized as follows (adapted from Stenning and Roberts 2001: 152-55):
The over-incarceration of Aboriginal offenders results from
systematic discrimination/bias in the criminal justice system including "an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders" (Gladue, at paras 60, 64); as well as
systemic background factors including, for example, poverty, lack of education and employment, substance abuse, and community fragmentation (Gladue at paras 64, 67).
Section 718.2(e) is a remedial provision that was designed to "address the serious problem of over-incarceration of aboriginal offenders in Canadian penal institutions to the extent that a remedy was possible through sentencing procedures" (Wells at para 37; Cladue at paras 64-65).
Section 718.2(e) provides "direction to sentencing judges to undertake...