Locking up those Dangerous Indians for Good: An Examination of Canadian Dangerous Offender Legislation as Applied to Aboriginal Persons

Abstract

This article examines the systemic reasons behind Aboriginal over-representation as Dangerous Offenders (DO) subject to indefinite detention. Colonialism has left behind various social traumas that continue to devastate Aboriginal communities. It is not surprising that significant numbers of Aboriginal persons accumulate lengthy violent criminal histories such that they come under the radar of the DO regime. One approach this article will stress is a call for greater emphasis on preventative social programming, and less emphasis on incarceration after the fact. This may lead to less Aboriginal over-incarceration generally, but also less Aboriginal over-representation as DOs, and less demand on resources over the long run. Secondly, the article also includes a review of case law where Aboriginal accused have been subjected to DO determinations. The conclusion is that courts are placing greater priority on the avoidance of harm to the public, to the point of marginalizing meaningful consideration of the background circumstances of Aboriginal accused, and of different approaches to long-term supervision that are grounded in Aboriginal cultures and may be more cost-effective. The article calls for greater judicial awareness and sensitivity towards the alternatives, as well as the development of an Aboriginal-specific risk assessment instrument that stresses dynamic instead of static factors.