Connecting gender and colonialism in sentencing Indigenous people : the application of subsection 718.2(e) of the Canadian Criminal Code

Abstract

This study examined seventy-two published case judgements involving Indigenous people being sentenced in criminal courts across Canada. The research analyses whether judges recognize the intersection of gender and colonialism in Indigenous women’s lived experiences. I found that judges do not sentence intersectionally and an intersectional analysis shows that the practices of law are colonial and gendered. Section 718.2(e) is used by judges to define Indigenous identity. Judges strip Indigenous people of the power to define Indigenous identity, constructing Indigenous identity through restrictive definitions that exclude many Indigenous people from the benefits of section 718.2(e). Additionally, judges overlooked how gender interacts with colonialism when sentencing Indigenous women. For instance, domestic violence was often a precursor to Indigenous women’s violence. Law treats gender and Library's copy signed by author colonialism as mutually exclusive categories of experience making it difficult for judges to recognize Indigenous women’s circumstances.