Access to justice for indigenous offenders

Anna JohnsonEquitable Access: A comparison of the sentencing of Indigenous offenders across Canada

Researcher: Anna Johnson

The overrepresentation of Indigenous offenders in Canada’s criminal justice system has been noted in academic literature for several decades and the sentencing regime has often been critized for its treatment of Indigenous peoples (Adjin-Tetty 2007; Welsh and Ogloff 2008; Hurlbert 2008; Roach 2009; Hannah-Moffat and Maurutto 2010; Milward and Parks 2011). Although the government of Canada attempted to remedy this widespread problem with the enactment of s.718.2 (e) of the Criminal Code which instructs judges to consider alternatives to incarceration when sentencing Indigenous offenders, previous literature has found mixed results regarding the application of this Criminal Code provision and Indigenous peoples continue to be overrepresented at various rates in both provincial/territorial and federal prison facilities (Statistics Canada 2015:4).

Conducted by Anna Johnson, this study undertakes a cross-country comparison of the sentencing of Indigenous offenders for manslaughter offences at the trial level in order to examine whether these varying rates are influenced by the differential application of the sentencing provisions across the country. Using a mixed-method approach, Johnson examines the sentencing of Indigenous offenders convicted of manslaughter between 1999 and 2014. Drawing from the framework of legal geography, bounded rationality, and expectation states theory, this study argues that the integration of these three theories can help explain the differential application of the sentencing provisions (Blomley 1994; Blomley and Bakan 1992; (March and Simon 1958; Unnever and Hembroff 1988; Albonetti 1991).

Johnson’s research identifies whether judges are more or less likely to be applied when sentencing Indigenous offenders in certain jurisdictions. When judges fail to identify the negative impact of colonialism on Indigenous peoples when determining a proper sentence, this discrepancy undermines the principle of substantive equality. To ensure that all Canadians are treated equally, have equitable access to the justice system and that the law is not discriminatory, the specific needs of certain groups must be identified and addressed by the justice system. This study contributes to knowledge about whether there is equitable access and substantive equality for Indigenous peoples in the Canadian justice system and discusses the policy implications of these findings.