Aboriginal Law

Aboriginal Law has many components. Treaty negotiations, land and fisheries use, residential, and school abuse cases, are all part of Aboriginal Law. With respect to Criminal Law, Aboriginal issues take a different focus. First Nations and Aboriginal people have long been disadvantaged by the Canadian Legal System. Evidence of this is found in our prisons, where Aboriginal people make up a disproportionate amount of the inmates in numbers far beyond what would be reasonable.

Recognizing this, Parliament has made certain adjustments to the Criminal Code to take into account Aboriginal Ancestry. S. 718.2(e) states as follows, "All available sanctions other than imprisonment that are reasonable in circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders."

Parliament has now codified instructions to judges to take into account the Aboriginal Heritage of native offenders. The purpose of this law is to reduce the serious problem of over representation of Aboriginal people in prison, and to encourage Sentencing Judges to have recourse to a restorative approach to sentencing. It directs Sentencing Judges to undertake the sentencing of Aboriginal offenders individually, but also differently, because the circumstances of Aboriginal people are unique. The judge must therefore consider the unique systemic or background factors that may have played a part in bringing the offender before the court, and the types of sentencing procedures and sanctions that may be appropriate in the circumstances because of the offender's heritage or connection.

While judges may take judicial notice of the broad systemic and background factors, and the priority given to restorative justice, the court should be provided with case specific information by counsel or in the pre-sentence report. It is therefore important that lawyers representing Aboriginal people make the appropriate inquiries as to their background, their band status, and past family history, etc. Whether the offender resides on a reserve or in a rural or urban area the judge must be made aware of alternatives to incarceration that exists, whether inside or outside the Aboriginal community.

One of the key cases that has been decided since this amendment is Regina vs. Gladue, [1999]1 S.C.R. 688. This case determined among other things, that this section of the Criminal Code applies to all Aboriginal offenders, not just those residing on a reserve. In general, the emphasis for Aboriginal offenders will be on a restorative justice approach. The restorative sentence must be more individualized and more comprehensive, based on the realistic assessment of the offender's needs from his own point of view as well as his future relationship with the victims and the community. The sentence must protect the community from future short-term and long-term harm.

The offender must want to participate and the representatives of the community at large should also express a willingness to assume at least part of the responsibility for the healing process. The victim should also play an important part, either by direct participation or by having their interests given prominence as part of the healing community. The goals of denunciation and deterrents are fundamentally relevant to the offenders community.

The more violent and serious the offence, the more likely that the appropriate sentence will not differ, as between Aboriginal and non-Aboriginal offenders. S.718(2)(e) requires a different methodology for assessing a fit sentence for an Aboriginal offender. It does not necessarily mandate a different result. In general, the more support the offender has from his community, and in particular the victims, the less likely that incarceration will result. In short, a judge is required to consider all possible alternatives for Aboriginal offenders, and in particular to consider a restorative justice approach. This does not mean
however, that there are two types of law for different citizens, merely that Aboriginal heritage is something that should be considered by the court.

If you have any questions please contact Mr. Taylor directly by phone toll-free at 1-877-753-9180 at any time.