Progressive Reforms or Maintaining the Status Quo? An Empirical Evaluation of the Judicial Consideration of Aboriginal Status in Sentencing Decisions

Abstract

Government statistics and empirical research have long documented the fact that Aboriginal people account for a much higher proportion of Canada's inmate population than would be expected by looking at their relative proportion in the general population. In spite of this increasing focus on overrepresentation, there has been little documented change in Aboriginal incarceration rates. Section 718.2(e) was added to the Criminal Code to encourage judicial consideration of alternatives to incarceration, with particular attention to the circumstances of Aboriginal offenders. To evaluate the impact of section 718.2(e), the current study examined 691 randomly sampled sentencing decisions from the Quicklaw database to determine the extent to which Aboriginal status was correlated with judges’ sentencing decisions relative to other legally relevant factors that have traditionally guided sentencing. Hierarchical logistic regression analyses indicated that Aboriginal status did not significantly predict the likelihood of receiving a custodial or non-custodial disposition relative to aggravating and mitigating factors or sentencing objectives cited by judges. Rather, several aggravating and mitigating factors cited by judges, including offence seriousness, prior criminal history, and the plea of the offender were significantly related to sentencing decisions.