Sentencing Aboriginal Offenders: Balancing Offenders' Needs, the Interests of Victims and Society, and the Decolonization of Aboriginal Peoples

In response to the over-representation of Aboriginal people in the criminal justice system, section 718.2(e) of the Canadian Criminal Code mandates consideration of background and systemic factors affecting Aboriginal offenders and culturally appropriate, community-based sanctions grounded in Aboriginal justice traditions. The problem of over-representation is partly attributable to the legacies of colonization, which included the denigration and outlawing of Aboriginal legal traditions and norms. Legitimizing Aboriginal justice traditions within the criminal justice system is a culturalist and counter-hegemonic response to the effects of colonization. The focus on restorative sentences must be balanced with the interests of victims of Aboriginal offenders and community safety as a whole to ensure that the potential decolonizing effects of this regime are not undermined. "Culturalization" of the criminal justice system has sometimes led to reinforcing notions of "otherness" by rationalizing victimization of women and children in subaltern communities as "normal." Aboriginal and other women have expressed concerns about potential marginalization in a regime that seemingly considers culture, community interests, and harmony in determining fit sentences in response to their victimization. This article examines some of the potential tensions between determining fit sentences for Aboriginal offenders as part of the decolonization of Aboriginal people and sentencing principles such as denunciation, proportionality, and promotion of a safer society, including respect for victims, especially women and children's rights. Some post-Gladue jurisprudence shows a sensitive and cautious judicial approach to reconciling the communal benefits of restorative processes and the interests of victims and society in ways that protect victims' interests and community safety. Ultimately, improvement in the material conditions of Aboriginal people in tandem with criminal justice reform has a better potential to address Aboriginal over-representation in the criminal justice system.