Progressive Reforms or Maintaining the Status Quo? An Empirical Evaluation of the Judicial Consideration of Aboriginal Status in Sentencing Decisions

Abstract

Government statistics and empirical research have long documented the fact that Aboriginal people account for a much higher proportion of Canada's inmate population than would be expected by looking at their relative proportion in the general population. In spite of this increasing focus on overrepresentation, there has been little documented change in Aboriginal incarceration rates. Section 718.2(e) was added to the Criminal Code to encourage judicial consideration of alternatives to incarceration, with particular attention to the circumstances of Aboriginal offenders. To evaluate the impact of section 718.2(e), the current study examined 691 randomly sampled sentencing decisions from the Quicklaw database to determine the extent to which Aboriginal status was correlated with judges’ sentencing decisions relative to other legally relevant factors that have traditionally guided sentencing. Hierarchical logistic regression analyses indicated that Aboriginal status did not significantly predict the likelihood of receiving a custodial or non-custodial disposition relative to aggravating and mitigating factors or sentencing objectives cited by judges. Rather, several aggravating and mitigating factors cited by judges, including offence seriousness, prior criminal history, and the plea of the offender were significantly related to sentencing decisions.

The Impact of Indigenous Status on Adult Sentencing: A Review of the Statistical Research Literature From the United States, Canada, and Australia

“…We located two Indigenous Canadian sentencing disparities studies published over the past 20 years that utilized multivariate statistical techniques (see Weinrath, 2007;Welsh & Ogloff, 2008). These studies found some support for both the differential involvement and positive discrimination hypotheses.…”

“…However, the sample used by Welsh and Ogloff (2008) raises two particular problems that limit their research findings. First, the sample of cases was drawn from an electronic legal database that, although noted to be "extensive," did not contain information on all criminal sentencing decisions, with "less serious cases decided on busy court dockets where sentences are imposed with little or no reasons" missing (p. 497).…”

“…These circumstances include racism, poverty, unemployment, poor education, limited opportunities, substance abuse, loneliness, and familial and community fragmentation (Pfefferle, 2008;Vasey, 2003;Welsh & Ogloff, 2008). In addition, judges are directed to consider the "type of sentence that is appropriate given the offender's specific aboriginal heritage or connection to an aboriginal community" (Ives, 2004, p. 120).…”

“…Once again, sentencing has been viewed as a possible source of the problem and a crucial point at which Indigenous imprisonment rates could be reduced (Pfefferle, 2008;Vasey, 2003;Welsh & Ogloff, 2008). In 1996, parliamentary reforms to the Canadian Criminal Code that more broadly created a set of guidelines for the sentencing of all offenders also made a specific provision recognizing the unique circumstances of Indigenous defendants: "All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders" (s.718.2(e)).…”

“…Finally, Welsh and Ogloff's (2008) study examined the impact of 1996 reforms to the Canadian Criminal Code to include a specific Aboriginal provision (s.718.2[e]; see "Positive Discrimination Hypothesis"). Their sample (n = 691) consisted of sentencing decisions made 76 months prior to and following the implementation of Section 718.2(e).…”