Sentencing Indigenous Young Adults


Marsha Rampersaud, York University; Jackie Sikdar, York University

This presentation shares findings from the Emerging Adults in Canadian Criminal Courts project, which explores the landscape of young adult jurisprudence in Canada. The larger study analyzes sentencing decisions for young adults, ages 18 to 25, in each province and territory in Canada over a five-year period (2018 to 2022) (n=372) in order to understand patterns in sentencing young adults. The current study uses critical legal analysis to analyze a sample of these decisions that involve Indigenous young adults (n=86). Specifically, the current study documents the application of Gladue principles when sentencing young adults and assesses whether there are any variations in application across the country. Twenty-four years have elapsed since the Supreme Court of Canada’s landmark decision in R. v. Gladue. This decision referred to the overrepresentation of Indigenous peoples at all stages of the criminal justice system as a “crisis ”, particularly because this group represented only 2% of the country’s population at the time (para 47). Importantly, Gladue established a guideline for how sentencing judges should interpret section 718.2(e) of the Criminal Code , which instructs judges to practice restraint in the use of custodial sentences by considering all other appropriate sanctions, with particular attention to the circumstances of Indigenous offenders. This subsection of the Criminal Code was designed with the intention of remedying the hyper-imprisonment of Indigenous peoples across Canada. Yet, prior to Gladue, there was little understanding about how to interpret this subsection and in what circumstances to apply it. In Gladue, (and later refined in R. v. Ipeelee), the Court affirmed the duty of sentencing judges to take notice of the systemic factors that may have brought an Indigenous offender before the courts and instructed them to consider all alternatives to imprisonment. As important and promising as the Gladue and Ipeelee decisions were, section 718.2(e) has not had its intended effect (Rogin, 2017). Data shows Indigenous imprisonment rates have worsened over time: At the time of the Gladue decision (1998-99), Indigenous peoples represented 17% of admissions to prison. This number rose to 19-21% in 2006-07 and 27-28% in 2016-17 (Baigent, 2020). In 2020 Indigenous peoples represented approximately 9% of the Canadian population, while the number of Indigenous peoples in federal prisons surpassed 30%, a historic high signaling the Indigenization of Canada’s correctional system (Office of the Correctional Investigator, 2020). The current study explores whether this overarching national trend of Indigenous hyper-incarceration applies to young adults, and if any variation exists in its application to this age group across the country. This research asks: How do sentencing judges understand an Indigenous offender’s lived experiences and social background? How are these understandings applied at sentencing and with what effect? And how are Indigenous young adults situated within the broader national trend of Indigenous hyper-imprisonment? In total, 372 sentencing decisions pertaining to young adults ages 18 to 24 were collected from the WestLaw Edge legal database. This study employed a critical legal analysis to analyze decisions pertaining to Indigenous young adults (n=86). A critical race theoretical framework (Crenshaw, 1989; Davis, 2003; Alexander, 2012) helped to make sense of the patterns emerging in the data. Two key themes were identified: (i) a discrepancy in applying Gladue when it comes to the moral blameworthiness of accused Indigenous offenders and (ii) the reframing of Gladue factors as sources of criminogenic risk that justify custodial sentences. Findings reveal that post- Gladue decisions tend to prioritize the sentencing objectives of deterrence and denunciation over rehabilitation or restoration, which ultimately limits the potential positive impact of Gladue on imprisonment rates. Further, while Gladue principles are intended to mitigate sentencing, systemic background factors that are connected to colonial legacies are often interpreted by judges as “risk” and “danger” factors, leading to harsher penalties for Indigenous offenders, contrary to the spirit of Gladue . Overall, this study questions the ability of the courts to remedy colonial legacies at the sentencing stage. This presentation is a good fit for hte CRM1 panel, Canadian Contributions to Criminology, as it discusses a solution to Indigenous hyper-imprisonment that is uniquely Canadian.

This paper will be presented at the following session: