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Aboriginal Offenders in Canada
Aboriginal people (Indigenous people) are comprised of three categories in Canada. The three groups are called the Inuit, First Nations and the Metis. The Indigenous people reside mainly in the provinces within Western Canada; British Columbia, Alberta, Saskatchewan and Manitoba. In Canada, Aboriginal people are overrepresented in the criminal justice system. Aboriginal offenders are incarcerated at disproportionately higher numbers in Ontario. Aboriginal youth are incarcerated at higher rates than Aboriginal adults. These statics may vary depending on the region an Aboriginal offender resides in. Aboriginal adults make up 4.3% of Canada’s population and 51% of Canada’s offender’s population. Cultural and systemic oppression is one of the factors in the overrepresentation of Aboriginals in the criminal justice system. Aboriginal people have experienced residential schools, lack of education, poverty and more.

Sentencing for Aboriginal Offenders
Sentencing for Aboriginal offenders is different than sentencing other offenders. There are factors judges must take into consideration before sentencing an Aboriginal offender. These factors are listed under section 718.1 and 718.2 of the Criminal Code of Canada. Section 718.1 of the Criminal Code ensures that judges adhere to the proportionality principle. This section states judges must consider the offence and the offender’s responsibility during sentencing. The goal of section 718.2 of the Criminal Code is to reduce Aboriginal’s overrepresentation in corrections. When sentencing Aboriginals, courts must take into consideration two factors; the offender’s background and individual characteristics that could have led to the commission if a crime, and sentencing options other than incarceration that would be helpful to all offenders, specifically Aboriginal offenders.

Gladue Courts
In response to the overrepresentation of Aboriginal offenders, governments have enacted the Gladue principle. The Gladue principle arose from the R v Gladue case, which was significant for Aboriginal offenders. The Gladue principle was made applicable to offenders with long term supervision orders as of March 2012.

Gladue courts deal with Aboriginal people’s criminal trials and sentencing. Each Aboriginal offender has an Aboriginal case work that is present during the trial. When Aboriginal offenders do not use Gladue courts, they have individual Gladue reports that are submitted to courts to help with sentencing. The Gladue report contains important information of the offender, like their familial and criminal background and their Aboriginal experience. Another option available to Aboriginal offenders is sentencing circles. Sentencing circles descend from restorative justice practices that occur in remote communities. Sentencing circles touch on Aboriginal roots as a judge, community members and elders sit in a circle, listening and making decisions that determines the offender’s fate. Community members keep healing and restorative justice practices in mind when sentencing, but it is up to the judge assigned to the case to decide the offender’s sentence. Judges have a hard time remaining consistent to applying Gladue principles when sentencing an Aboriginal offender.

R v Ipeelee
Manasie Ipeelee is an Inuk man that lived in Nunavut. When Ipeelee was 11, he developed severe alcohol addiction. He ended up dropping out of school and was arrested for the first time at the age of 12. As a youth, Ipeelee was convicted of 36 crimes. As an adult, Ipeelee was convicted of 24 crimes. Ipeelee committed these crimes under the influence of alcohol. Ipeelee did not suffer from any mental health disorders at the time of the crimes, but suffered from alcohol abuse and antisocial personality disorder.

In August 1999, Ipeelee was designated as a long-term offender for a sexual assault he committed against a homeless 50-year-old woman. His punishment for the sexual assault was 6 years, accompanied by a long-term supervision order. A long term supervision order is part of the Corrections and Conditional Release Act. Long term supervision orders protect the public and help with offender’s reintegration into society. Rehabilitation is a key feature in long term supervision orders. Offenders with long term supervision orders must be willing to recover from their problems. In Ipeelee’s long-term supervision order, he was told to refrain from drinking alcohol. After being released from the correctional facility, Ipeelee breached his long-term supervision order by drinking alcohol. This caused Ipeelee to be sentenced to 3 additional years in jail.

The lower court judge did not take into consideration Ipeelee’s Aboriginal status and thought it was not an important factor when sentencing Ipeelee. Ipeelee appealed the decision he received from the lower courts. When Ipeelee appealed, the appeal judge considered his criminal record and the want to rehabilitate and reintegrate into society.

R v Kakekagamick
Kakekagamick is an Aboriginal male offender that lived in Ontario. Kakekagamick was never convicted of any crimes until 2006. In August 2006, Kakekagamick was convicted of an aggravated assault and was given a 5-year sentence. Kakekagamick was affected by alcohol and drug abuse, his mother’s residential school experience and living on reserves.

Kakekagamick challenged the aggravated assault on the basis that principles in R v W. D. was not applied to the case effectively. Kakekagamick felt that his sentence did not fit the crime and it was too harsh. The appeal judge considered the sentencing principles outlined in section 718.2 of the Criminal Code. Kakekagamick’s Aboriginal status or past familial history was not considered in the lower court’s judge’s decision. The appeal judge asserted that restorative justice and Gladue principles must be taken into consideration when sentencing Aboriginal offenders, in all offences. In the end, the appeal judge dismissed the case.