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. …