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

• NCJ Number: 224567
• Journal: Canadian Journal of Criminology and Criminal Justice Volume: 50 Issue: 4 Dated: July 2008 Pages: 491-517
• Author(s): Andrew Welsh; James R.P. Ogloff
• Date Published: July 2008
• Length: 27 pages
• Publication Format: Article
• Publication Type: Report (Study/Research)
• Language: English
• Country: Canada

Annotation

This study evaluated the impact of the Canadian Criminal Code, Section 718.2(e), which encourages judicial consideration of alternatives to incarceration, with particular attention to the circumstances of Aboriginal offenders, through an examination of a random sample of 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.

Abstract

Findings indicate that Aboriginal status did not significantly predict the likelihood of receiving a custodial or noncustodial disposition relative to aggravating and mitigating factors or sentencing objectives cited by judges. Rather, several aggravating and mitigating factors cited by judges, including offense seriousness, prior criminal history, and the plea of the offender were significantly related to sentencing decisions. Significant reforms were made to the Canadian sentencing regime in 1996. These reforms, introduced through Bill C-41, were intended to address general criticism of judicial sentencing practices and, specifically, Aboriginal overrepresentation. Among the reforms contained in Bill C-41, the primary purpose and objectives of sentencing were officially codified in Section 718 of the Criminal Code. Section 718 included a significant reform intended to address Aboriginal overrepresentation, Section 718.2(e). This section provides that a court imposing a sentence must take into consideration all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of Aboriginal offenders. The intent was to address Canada’s over-reliance on incarceration. The purpose of this study was to determine what role Aboriginal status played in judges’ sentencing decisions relative to legally relevant offender and offense characteristics and sentencing objectives that have traditionally guided sentencing. To accomplish this goal, a content analysis was conducted of archival Canadian sentencing decisions. Tables and references