Canadian sentencing laws recognize that some categories of people in society are different than others. This section considers how the Criminal Code and Youth Criminal Justice Act tailor sentencing principles to meet the needs of Aboriginals and youth respectively.
Section 718.2(e) of the Criminal Code addresses Aboriginal sentencing. The section requires a sentencing judge to pay particular attention to the circumstances of Aboriginal offenders and to consider all available sanctions other than imprisonment that are reasonable in the circumstances. An individual’s Aboriginal status is considered in determining a sentence because his or her circumstances are different from non-Aboriginal offenders.
One reason why the Criminal Code treats Aboriginal people uniquely is because Aboriginal people are overrepresented in Canadian prisons. For example, in 1997, Aboriginal people constituted close to 3% of the population of Canada, yet amounted to 12% of all federal inmates.
To deal with the over-representation of Aboriginal people in prison, s. 718.2(e) directs judges to undertake the sentencing of Aboriginal offenders differently. First, the sentencing judge should consider “the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts”. Some of these background factors include the low incomes, high unemployment, lack of opportunities, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation that lead Aboriginals to have a higher incidence of crime and incarceration. Systemic factors include the widespread discrimination that Aboriginals experience both in, and outside, penal institutions.
Second, the sentencing judge should consider “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”. This is because the traditional sentencing ideals of deterrence, separation, and denunciation do not accord with the understanding of sentencing held by Aboriginal offenders and their community.
Most traditional Aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. Restorative justice is an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to a crime’s occurrence. Restorative justice determines a particular sanction by considering the needs of the victims, and the community, as well as the offender. An example of this can be seen in circle sentencing.
In a circle sentencing, the judge, crown counsel, defence lawyer, victim, offender, police and community members discuss the crime. In this sense, the community participates in resolving the conflict. Those involved sit in a circle to break down the formality that can characterize a courtroom sentencing hearing. An emphasis is placed on healing and consensus building among all who are affected by the crime.
The Youth Criminal Justice Act provides the legislative framework for Canada’s youth justice system. It includes a separate sentencing regime because the needs and situations of youth are different from those of adults. Section 38 states the principles and purposes of youth sentencing.
Section 38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.
(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:
(a) The sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;
(b) The sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;
(c) The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;
(d) All available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and
(e) Subject to paragraph (c), the sentence must:
(i) Be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),
(ii) Be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and
(iii) Promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.