Theorizing Mass Incarceration: Analyzing Aboriginal Over-Representation in Light of Section 718.2(e) of the Canadian Criminal Code
Aboriginal , Incarceration , Over-representation
This study assesses the impact of changes in Bill C-41 on Aboriginal offenders in Canada. Passed in September 1996, Bill C-41 amended the Criminal Code seeking to clarify sentencing principles. Section 718.2(e) instructs judges to use incarceration only as a last resort when appropriate. Although it indicates that Aboriginal offenders must be given special consideration, it does not provide specific conditions or parameters for its use, leaving it to the judges’ discretion. In 1999 some clarification was provided in the Supreme Court of Canada decision of R. v. Gladue. Gladue clarified the application of section 718.2(e) and highlighted its role in alleviating Aboriginal overrepresentation in prisons. This thesis considers the disproportionate incarceration levels of Aboriginal offenders in Canada and the effectiveness of 718.2(e) in ameliorating the problem. It examines judiciary reasoning for the application of section 718.2(e) in 21 published Court of Appeal cases. The study employs a constructivist, grounded theory approach to discourse analysis of extant case documents. Quantitative data are also used to identify trends in offenders’ backgrounds. Findings reveal that most cases involved male offenders between the ages of 18 and 34 with varying educational backgrounds. In most cases the offender pleaded guilty during the sentencing trial, had a prior record, and had made rehabilitative efforts post-sentencing. The overwhelming majority of offenders had experienced unfavourable upbringings and circumstances in their lives and abused alcohol and/or drugs. Analysis of judges’ sentencing and decision making process revealed five predominant themes: Protection of public rhetoric, Denunciation and Deterrence, Rehabilitation, Special Cases, and Considerations of Gladue. The majority of appeal cases were dismissed or maintained carceral outcomes.