Indigenous Law Bulletin
by Richard Edney
Like Australia, Canada disproportionately imprisons Indigenous persons for criminal offences in comparison with non-Indigenous persons. Another distinct point of similarity is that Canada has a history of establishing governmental inquiries and Royal Commissions in order to address the problem of Indigenous overrepresentation throughout the criminal justice system.
Both Australia and Canada have made attempts to ensure that prison is used as a sentence of last resort against Indigenous persons who commit criminal offences. In this article I will consider the impact of a specifically targeted statutory initiative from Canada that had as its object the reduction of the overrepresentation of Indigenous persons in prison. The significance for Australia, and notwithstanding the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’), is that there are no similar State or Territory statutory provisions. There is reference in the Crimes Act 1914 (Cth) to the principle that imprisonment should be a sentence of last resort for Indigenous persons, but that is the extent of prescription for judicial officers and it applies only in respect of Commonwealth offences. It is proposed to consider the position in Canada in light of the introduction of this particular statutory amendment. I will then discuss the viability of such a statutory regime for Australian jurisdictions.
In Canada in 1996, in response to the problem of continuing overrepresentation of Aboriginal persons in custody, the Canadian Criminal Code, RS C 1985, c46 (‘Code’) underwent a significant amendment in relation to sentencing provisions. The significance of the amendment was the manner in which it would now impose upon judicial officers a duty to take into account Aboriginality in the sentencing process and it would prescribe the manner in which it could be taken into account.
Relevant provisions of s 718.2(e) of the Code provide as follows:
A Court that imposes a sentence shall also take into consideration the following principles
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
This appears to be explicit statutory recognition of the harm that has been caused to Indigenous communities because of the disproportionate manner in which imprisonment has been utilised against them. The effects of imprisonment are thus understood as a collective source of disempowerment for Indigenous communities throughout Canada, and the provision gives appropriate recognition to the structural and institutional sources of harm inflicted by the criminal justice system. Indigenous offending, and the appropriate response, is given a collective focus that shifts the perspective of sentencing from beyond the individual offender.
The impact of the changes to the Canadian Criminal Code may be partly measured by the manner in which they have affected judicial decision making; that is, was the amendment of the Code a simple symbolic act or, given the content of the amendment, a potential instrumental means of reducing Indigenous overrepresentation in prison? A way of measuring such change is to consider the manner in which the Canadian Supreme Court has interpreted the amended Code. In short, to measure the extent to which judicial practices have added value or content to the provision by providing it with a meaning in the context of the practical operation of the criminal justice system. An important decision in that regard was the decision of the Canadian Supreme Court in the decision of R v Gladue (‘Gladue’).
Gladue is an important decision in that it is an example of a court attempting to give weight to a new statutory directive. It is also historically important in that it was the first decision of the Canadian Supreme Court to comprehensively consider the amended Code.
In Gladue, the Canadian Supreme Court attempted to provide a comprehensive analysis of the amendment to the Code and the implications for the sentencing of Indigenous offenders in Canada. That said, the decision may also be ‘read’ as being concerned with establishing the nature of judicial duty when an Indigenous person is sentenced. In that sense, the decision must be approached from the perspective that it is concerned with those in the criminal justice system, ie judicial officers, who exercise ‘power’ over others at sentence.
The first issue considered by the Court was the objective to be achieved by the amendments. In framing this issue, the Canadian Supreme Court first considered what it perceived to be the objectives of the amendment to the Code. The Court asked itself the following question: did s 718 merely represent a codification of existing common law sentencing principles in relation to the sentencing of Aboriginal offenders or did it have a more positive and affirmative role in reducing Aboriginal overrepresentation in prison? In assessing this, the Court in Gladue noted the extant Canadian authorities on the relationship between Aboriginality and sentencing. The court then described the legislative amendment as essentially remedial. In coming to this conclusion the Court noted that
s 718.2(e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case. (emphasis in original.)
Importantly, in the second step of their consideration of s 718.2(e) the Canadian Supreme Court note that the amendment changes
the method of analysis which each sentencing judge must use in determining the nature of a fit sentence for an aboriginal offender. (emphasis added.)
More radically, the amendment arguably altered the existing intellectual and analytical framework of the sentencing court by imposing restrictions in the discharge of sentencing discretion by forcing the judicial hand to a position where imprisonment would only be imposed in an extremely small number of situations. This would then become part of the judicial obligation in the sentencing of Aboriginal offenders and would, as required by the terms of s 718, for the sentencing court to investigate fully all other sanctions apart from the penalty of imprisonment.
It is to be noted at this juncture that the amendments to the Code do not provide immunity for Aboriginal persons from receiving a custodial sentence in Canada, but it does require the sentencing court to be more imaginative and exhaustive in its approach to the sentencing of Aboriginal offenders. What is most refreshing in the analysis is that there is recognition of the historical circumstances of Aboriginal offenders as a community and how this must be factored, or weighed, in the sentencing process. The Court in Gladue achieved this shift in analysis, and the incorporation of the unfortunate historical and contemporary nexus between Indigenous communities and the prison when it contended that
sentencing judges should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique, and different from those of non-aboriginal offenders. The fact that the reference to aboriginal offenders is contained in s 718.2(e), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction. (emphasis in original.)
The Court supplemented its analysis of the amended code with reference to empirical literature on the dimensions of Indigenous overrepresentation in the criminal justice system of Canada. Like Australia, Canada has held Royal Commissions and other public inquiries in an attempt to reduce Indigenous imprisonment rates.
The Court then moved to consider what it described as a ‘framework of analysis for the sentencing judge’. This requires the judge, when sentencing an Aboriginal offender, to consider:
The court then explained further that the requirement to consider the ‘circumstances of aboriginal offenders’ is a judicial duty that is in no way discretionary but instead the only permissible manner to determine what it describes as a ‘just and appropriate sentence’. In this manner the interpretation of the amended Code by the Court in Gladue was robust and added substantially to the provision itself by imposing a significant duty upon judicial officers engaged in the process of sentencing Aboriginal offenders. Importantly, by describing the judicial duty in the manner in which it did, the Court made it incumbent for any future sentencing court to adopt its framework, lest it be exposed to appealable error.
In terms of the sentencing of Indigenous persons at the State and Territory levels in Australia, there are no distinct or different statutory principles to be applied. This is somewhat surprising given the importance of Recommendation 92 of the RCIADIC: that imprisonment should be a sanction of last resort. Only at the Commonwealth level is there a similar provision to the one in the Canadian Criminal Code. This is contained in the Commonwealth Crimes Act 1914 where s 17A notes that imprisonment should be a sentence of last resort and that such a principle of parsimony is
acknowledged to be of great importance for the sentencing of Aboriginal and Torres Strait Islander offenders whose rate of imprisonment shows a significant degree of over-representation.
The problem with this section is that it may only be of symbolic value and it does not – unlike the amended Canadian Criminal Code – impose a judicial duty upon the sentencing judge to consider the ‘unique’ circumstances of Indigenous offenders in the determination of a just and proportionate sentence.
As a result of this legislative vacuum, recourse must be had to the common law authorities concerning Indigeneity and sentencing. Important decisions on how Indigeneity should be treated by the sentencing process include Neal v Queen, R v Fernando and, more recently, R v Fuller-Cust; and although these cases are important from the perspective of an attempt to comprehend Indigeneity as a distinct matter in mitigation, they rely significantly on the liberal notion of formal legal equality and are careful, in an almost paradoxical manner, not to place too great an emphasis on Indigeneity. Those authorities complete the paradox by exhorting that Indigeneity only becomes ‘relevant’ once an Indigenous person suffers from economic or social disadvantage. Otherwise, it is deemed irrelevant.
The problem – and limitation – with this type of analysis is that it disconnects any sense of Indigenous history from the practical operation of the criminal justice system. What this means is that the marginalisation and disempowerment of Indigenous communities over time, and how this compounds, is ignored. In such a context, formal equality and the rule of law become empty vessels. The statutory amendment in Canada makes a necessary connection between colonial practices and contemporary harm caused to the numerous Indigenous communities in Canada through the use of imprisonment. In that sense, such an amendment goes further than what has been decided in Australian cases, notwithstanding the superficial appeal of those cases from a first reading.
The necessity of the amendment of the Canadian Criminal Code to impose a judicial duty in the sentencing of Indigenous offenders contains within it the disquieting implication that judicial officers in that country were not paying sufficient regard to the unique circumstances of Indigenous offenders at the sentencing stage, and that this was a cause of the ongoing overrepresentation of such offenders in the criminal justice system. There is no evidence to suggest that judicial officers within Australia are any different. In those circumstances, the Canadian reform may be of significant value in the Australian context by delineating more clearly the obligation of judicial officers to exhaust in practice all sentencing options other than imprisonment.
Of course, this is not to suggest that amending sentencing legislation is a panacea for Indigenous overrepresentation in the criminal justice system. It is not. The power of extra-legal forces that exclude Indigenous persons from meaningful participation in the benefits of the Australian polity play a significant role in the social, political and economic exclusion of Indigenous communities and provide the structural reasons for Indigenous offending. Instead, such legislation may ensure that in the exercise of sentencing discretion, judicial officers listen and – hopefully – act upon the unique story of the Indigenous offender and why he or she is even at court and the futility of terms upon terms of imprisonment for the offender and the community.
Richard Edney is a Senior Lecturer in Law at Deakin University Law School
 See generally S Haslip, ‘Aboriginal Sentencing Reform in Canada: Prospects for Success’ (2000) 7(1) E Law – Murdoch University Electronic Journal of Law <http://www.murdoch.edu.au/elaw/issues/v7n1/haslip71.html> at 10 June 2005.
 Section 17A.
 R v Gladue  1 SCR 688.
 Other important cases that have assisted in the development of this sentencing jurisprudence in Canada such as R v Wells  1 SCR 207 and R v D R  BCSC 136.
 Ibid .
 Ibid .
 Ibid .
 Ibid -. Manitoba, Aboriginal Justice Inquiry of Manitoba, Report of the Aboriginal Justice Inquiry of Manitoba (1991); Canada, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (1995).
 Ibid -.
 Ibid .
 I note that in Australia there now exists a number of Indigenous courts attached to courts of summary jurisdiction. A feature of those courts is that the same sentencing principles apply to Indigenous offenders. In that sense those courts represent a change in practice rather than a fundamental change in the sentencing principles that are to apply.
 Crimes Act 1914 (Cth), s 17A.
  HCA 55; (1982) 149 CLR 305, 326 (Brennan J).
 (1992) 76 A Crim R 58, 62-63 (Wood J).
  VSCA 168; (2002) 6 VR 496, 520-523 (Eames J).