Over-represented but not understood : sentencing provisions as an inadequate response to the over incarceration of Aboriginal peoples in Nova Scotia

Abstract

This paper will explore the over incarceration of Aboriginal offenders in Nova Scotia. It will critically examine s. 718.2(e) as well as R. vs Gladue 1999 as a response to the over-representation of Aboriginal peoples in Canadian prisons. In 1996, Bill C-41 was introduced which defined the principles of sentencing for judges across the country and included a provision (s. 718.2(e)) that mandated judges to consider the situation of all Aboriginal offenders. However, over twenty years later, evidence demonstrates that the over incarceration of Aboriginal offenders has not decreased. This paper will analyze ten sentencing decisions from the Nova Scotia Provincial Court in order to understand better the implementation of s. 718.2(e) and R. vs. Gladue 1999. The results show that its use in court is inconsistent and inadequate to combat over incarceration. While judges recognize and identify the challenges faced by many Aboriginal offenders, they are still bound by the principles of deterrence and denunciation above those of rehabilitation and reintegration.