Sentencing Aboriginal Offenders: The Honour of the Crown, Reconciliation and Rehabilitation of the Rule of Law

Abstract

This thesis argues that the honour of the Crown and the reconciliation agenda are engaged in the sentencing of Aboriginal offenders, given grossly disproportionate Aboriginal incarceration rates and their underlying causes, including socio-economic problems, community breakdown and cultural dislocation that arise at least partly from the history of Crown-Aboriginal interaction. Such an interpretation facilitates a new relationship between the Crown and Aboriginal peoples and will contribute to the rehabilitation of the rule of law. I address not only the underlying legal questions pertaining to the engagement of the honour of the Crown and the reconciliation agenda in sentencing Aboriginal offenders, but also interrogatories relating to the role of morality in the law and the rule of law for Aboriginal peoples in the sentencing context. Fundamentally, the honour of the Crown and reconciliation principles are interpreted and applied such that the sentencing of Aboriginal offenders can accommodate and attempt to ameliorate colonialist history. This distinctive history produces a legal requirement of reconciliation and honour-based governance if the rule of law is to be a reality for Aboriginal peoples in Canada.

Section 718.2(e) of the Criminal Code and Gladue analysis provide a vehicle for the courts to inject the honour of the Crown into the sentencing of Aboriginal offenders, albeit at one remove. However, the honour of the Crown requires a vigorous Gladue type analysis by judges sentencing Aboriginal offenders regardless of the existence of section 718.2(e). Canada must be prepared to accept responsibility and directly address some of the fallout in the criminal justice system from the history of Crown / Aboriginal relations. The honour of the Crown requires a different sentencing approach for Aboriginal offenders independent of section 718.2(e) and reconciliation is an interpretive normative principle underlying the sentencing of Aboriginal offenders, shaping the honour of the Crown and infusing the rule of law for Aboriginal peoples. Aboriginal offender rehabilitation needs to go hand in hand with the rehabiltation of the rule of law for Aboriginal peoples as a pivotal component of reconciliation.