Criminal Law

Aboriginal offenders not well understood in criminal justice system

By Joseph Neuberger

There have been a number of leading decisions coming out of the superior courts recently in relation to how important it is to not simply pay lip service to Gladue principles when dealing with aboriginal offenders.

The case of R. v. Moise, 2015 SKCA 39 (CanLII), specifically noted in a dangerous offender proceeding that “there must be a meaningful evaluation of any alternatives to incarceration including culturally sensitive programming, supports and safeguards available within and outside the Aboriginal community which may assist in rehabilitating the offender, reducing his or her risk to reoffend violently and managing his or her behaviour within the community."

This decision, in line with a number of similar cases, takes a more enlightened approach to recognizing the importance of understanding and carefully taking into consideration the particular challenges and needs of aboriginal offenders who unfortunately find themselves in the criminal justice system. When it comes to sentencing, this ruling also urges courts to take meaningful steps to review culturally specific factors and programs.

Even more important in the battle to recognize the plight of aboriginal offenders is the recent case of Ewart v. Canada.

In this case, the offender, who is of aboriginal heritage, brought a court action to “enjoin” — stop the prosecution from using various risk-assessment tools due to their lack of validation and reliability when applied to aboriginal offenders. The actuarial assessment tools typically used to assess risk within the general population do not rule out cross-cultural bias and, as noted in the decision, do not account for pronounced differences between aboriginal and non-aboriginal groups.

The best approach is for a structured clinical assessment that would include some actuarial assessment, as well as an examination of the totality of the circumstances of what is known about the offender. This case is an extremely important decision and a significant step forward to a more fair and holistic approach to dealing with aboriginal offenders.

While the criminal justice system still has a long way to go to properly address issues surrounding aboriginal offenders, the next step for our government will be to apply what we know about root causes and issues that face our aboriginal communities and to be proactive to prevent individuals from entering the criminal justice system.

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