Progressive reforms or maintaining the status quo? An empirical evaluation of the judicial consideration of aboriginal status in sentencing decisions.

• Author: Welsh, Andrew
• Position: Canada

In spite of an exemplary list of human rights advancements, Canada has a long-standing legacy of relying on incarceration as the primary response to crime. According to the Corrections and Conditional Release Statistical Overview prepared by Public Safety and Emergency Preparedness Canada (2006), Canada's incarceration rate remains high relative to most Western European countries. In 2003, the incarceration rate in Canada was 108 per 100,000 in the general population (Public Safety and Emergency Preparedness Canada 2006). This problem is further exacerbated by the overrepresentation of Aboriginal peoples in Canadian correctional facilities. As of April 9, 2006, Aboriginal offenders represented 16.6% of the federal offender population despite comprising only 3.38% of the Canadian general population (Public Safety and Emergency Preparedness Canada). Overrepresentation is widely acknowledged and has been discussed, perhaps exhaustively, in the academic literature, government reports, and Supreme Court rulings (Cawsey 1991; LaPrairie 1992, 1996; R. v. Gladue; Roberts and Melchers 2003; Welsh and Ogloff 2000). Nonetheless, there is little evidence that this disproportionate incarceration rate has changed.

Sentencing reforms and section 718.2(e)

Not surprisingly, as noted by Roberts and Melchers (2003), the explanations for overrepresentation are diverse and complex. While some researchers have suggested that Aboriginal peoples are committing either disproportionately more crimes or more serious and/or visible crimes, other researchers have pointed to differential criminal justice system processing as a result of discrimination (LaPrairie 1990, 1992, 1996). Past research findings on differential justice system processing have been mixed. A past study by Canadian researchers, for example, failed to find evidence of differential treatment in parole decision-making (Welsh and Ogloff 2000). A certain amount of attention, however, has focused on sentencing, and although sentencing practices cannot solely account for Aboriginal overrepresentation, significant reforms were made to the Canadian sentencing regime in 1996. These reforms, introduced through Bill C-41, were intended to address general criticisms of judicial sentencing practices and, specifically, Aboriginal overrepresentation.

Among the reforms contained in Bill C-41, the primary purpose and objectives of sentencing were officially codified in section 718 of the Criminal Code (1995). Although this reform was largely a codification of judicially recognized goals of sentencing, section 718 did include a significant reform intended to address Aboriginal overrepresentation. Section 718.2(e) provides that a court imposing a sentence must take into consideration all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of Aboriginal offenders. The general principle underlying section 718.2(e) is restraint in the use of imprisonment for all offenders. Nonetheless, this section has generally been read as a statutory means of ameliorating the serious problem of overrepresentation of Aboriginal people in prisons (Manson, Healy, and Trotter 2000; Roberts and Melchers 2003).

Despite the good parliamentary intentions of section 718.2(e), there has been much speculation about the ability of this provision to ameliorate Aboriginal overrepresentation. The Supreme Court of Canada, in its R. v. Gladue decision, did provide a framework of analysis for judges when considering Aboriginal status in sentencing decisions. In their written reasons, the Supreme Court acknowledged that many Aboriginal people appear in the criminal justice system as a result of systemic discrimination and, consequently, emphasized the remedial nature of section 718.2(e). Moreover, the Supreme Court cited several background factors that they considered relevant to sentencing, including years of dislocation and economic deprivation, high unemployment rates, lack of opportunity, substance abuse, loneliness, and community fragmentation. Importantly, the Supreme Court of Canada also stressed that section 718.2(e) does not imply an automatic non-custodial sentence or reduction in prison sentence.

Legal scholars, however, have noted several limitations with the Supreme Court of Canada's interpretation of section 718.2(e) in the R. v. Gladue case (Anand 2000; Pelletier 2001; Stenning and Roberts 2001; Turpel-Lafond 1999). Among these criticisms, it has been frequently noted that the Supreme Court failed to specifically address how Aboriginal status should be balanced with other legally relevant objectives, such as deterrence and denunciation. This issue is particularly salient in cases involving violent or sexual offences. In spite of the remedial nature of section 718.2(e), a subsequent Supreme Court decision has given some indication that judges may find that conditional sentences and other alternatives to incarceration may be inappropriate for Aboriginal and other offenders who commit the most serious crimes (R. v. Wells). Such a narrowing of the application of section 718.2(e) may be further exacerbated in the case of Aboriginal offenders, given the observed differences in the offence seriousness and criminal history between Aboriginal and non-Aboriginal offenders (LaPrairie 1996; Royal Commission on Aboriginal Peoples 1996).

Determinants of sentencing

Existing empirical research examining determinants of sentencing outcomes, generally, and the sentencing of Aboriginal offenders, specifically, does suggest that the Bill C-41 statutory reforms may fail to adequately address overrepresentation. Sentencing is often considered by judges, even when compared to arriving at a verdict, as the most difficult component of a trial (Manson et al. 2000). This difficulty stems, in large part, from the fact that sentencing is a complex process involving the consideration of a wide range of information (Hogarth 1971). Judges must consider a variety of aggravating and mitigating factors concerning the offender, the offence, and the surrounding circumstances. Not surprisingly then, it is extremely difficult to empirically untangle the extent to which extra-legal factors, such as race, affect sentencing decisions.

A large body of research has examined the determinants of judges' sentencing decisions. Two consistent predictors--the seriousness of the offence and the offender's prior criminal record--have emerged and have been well discussed across the research (Ebbesen and Konecni 1981; Manson 2001; Palys and Divorski 1986; Roberts 1995; Spohn 2002). Other legally relevant aggravating and mitigating factors have been linked to sentencing outcomes, including the plea of the accused and pre-trial status or time in custody (Albonetti 1997; Spohn; Spohn and DeLone 2000; Uhlman and Walker 1980).

In addition to legally relevant variables, there has been a great deal of rhetoric and anecdotal evidence about overt racism and unwarranted disparity in the conviction and sentencing of Aboriginal people (Jackson 1989). The possibility that judges' sentencing decisions may be influenced by extra-legal factors has some support in the literature (Andrews, Robblee, Saunders, Huartson, Robinson, Kiessling, and West 1987; Brantingham 1985). Conjectures about unnecessary harshness with Aboriginal offenders at sentencing, however, have not been consistently supported. Some Canadian and U.S. studies have observed that Aboriginal offenders are in fact subject to harsher sentencing decisions in the criminal justice system as compared to their non-Aboriginal counterparts (Benjamin and Kim 1980; Bienvenue and Latif 1974; Dubienski and Skelly 1970; Hall and Simkus 1975; Poupart 1995). Other studies have cited no differences in sentencing outcomes between Aboriginal and non-Aboriginal offenders (Feld 1995; Leiber 1994; Moyer 1987). A recent examination of sentencing data from five Canadian cities, for example, found that there was no difference in the probability of receiving a custodial sentence or a secure custodial sentence between Aboriginal and non-Aboriginal youth (Latimer and Foss 2005). Although Latimer and Foss did report that Aboriginal youth received longer sentences, a re-examination of the data by Doob and Sprott (2007) indicated that this difference was a statistical artifact of combining data from multiple cities. A subsequent examination of the sentencing data for each city independently found no significant differences in sentence length.

Perhaps the clearest finding that has emerged from the research is that race and, specifically, Aboriginal status, may have an indirect effect on sentencing outcomes that is mediated by both demographic and criminal history variables. Prior criminal history, lower socio-economic status, and offence seriousness are more directly associated with sentencing outcome. A quick perusal of the literature shows that Aboriginal offenders experience higher rates of substance abuse (Johnston 1997), are more likely to have served a prior federal sentence (Solicitor General of Canada 1998), and are disproportionately convicted of violent offences (LaPrairie 1996; Solicitor General of Canada). This differential involvement in criminal behaviour, particularly of violent offences, could leave sentencing judges with fewer options when sentencing Aboriginal offenders.

Summary and present study

The goal of section 718.2(e) was to address Canada's over-reliance on incarceration generally; it was also enacted with the explicit intent of reducing incarceration of Aboriginal offenders. Nonetheless, both sentencing research and case law suggest that there are obstacles to fully implementing this provision. Offence seriousness and prior criminal history, for example, are the two most consistent predictors of sentencing outcomes across research (Ebbesen and Konecni 1981; Roberts 1995; Spohn 2002). Furthermore, the Supreme Court of...