No full-text available
To read the full-text of this research,
you can request a copy directly from the author.
Why Gladue Needs an Intersectional Lens: The Silencing of Sex in Indigenous Women’s Sentencing Decisions
Abstract
Le présent article examine comment les juges chargés de déterminer les peines tiennent compte des inégalités croisées que subissent les femmes autochtones touchées par l’analyse de l’arrêt Gladue. En passant en revue toutes les décisions pertinentes sur une période de deux ans (2017–18), l'auteure suggère que les juges qui appliquent l’arrêt Gladue pour déterminer les peines ne contextualisent pas adéquatement les circonstances spécifiques aux femmes autochtones à l’intersection du sexe et de l’indigénéité. L’auteure pointe du doigt la réduction au silence du genre dans la décision fondamentale de R c Gladue et recommande une nouvelle approche — une lentille intersectionnelle — qui tient compte spécifiquement des expériences vécues par une femme autochtone en particulier en matière d’inégalités intersectionnelles lors de l’évaluation de (1) sa culpabilité morale pour une infraction et (2) des sanctions appropriées dans sa situation particulière.
One of the central concerns of abolitionists is not falling into the trap of implementing reforms in the criminal punishment system that maintains hegemonic, oppressive power structures. The challenge is determining which reforms lead toward abolition and which are reformist reforms, entrenching the status quo. This critical, narrative study analyzed a reform in Canada, Section 718.2(e) of the Criminal Code (e.g., Gladue), intended to remediate systemic anti-Indigenous racism at sentencing by requiring judges to consider all alternatives to incarceration when sentencing Indigenous peoples. Yet despite the reform in place, Indigenous incarceration rates continue to rise precipitously in Canada. How is it that the Canadian state, even when claiming “remediation,” keeps producing the same—oppressive—result toward Indigenous peoples? Twenty-one semi-structured interviews were conducted with judges from the Ontario Court of Justice ( n = 12) and Gladue report writers ( n = 9) about the utility of Gladue reports. The findings indicate that Gladue is mostly a reformist reform. The article theorizes that a way out of the reformist reform of Gladue, toward abolition, is through honoring Indigenous self-determination and providing reparations in support of Indigenous-led justice.
Over the past five years, the Supreme Court of Canada has continued to grapple with the meaning of constitutional equality and discrimination. In this regard, there is a clear consensus that the Court should follow a two-step test to assess violations of section 15(1) of the Canadian Charter of Rights and Freedoms. First, the Court must identify a grounds-based distinction and, second, determine whether the distinction violates substantive equality. While both parts of the test present interconnected conceptual and contextual challenges, this article focuses on how the Court has applied the first step of the section 15 equality analysis. Recent case law reveals a deeply divided Court. First, fundamental differences are apparent with respect to whether grounds-based distinctions may be understood as inextricably embedded in legislative schemes. Second, the justices diverge on the exigencies of proving adverse impact discrimination. Legal technicalities, comparator group formalities, and fear of imposing any positive rights obligations on governments obscure critical dimensions of the disproportionate effects of law. Third, the association of adverse impact with unintentional discrimination risks overlooking the importance of the actual knowledge of disparities in the effects of laws and policies. Finally, the complex realities of intersectionality, while recognized by some justices, continue to remain on the periphery of equality rights doctrine. While the second step of the equality analysis engages more directly with an assessment of the contextual realities of substantive inequality, it is critical to ensure that courts reach this stage of the analysis and that it is not cut short, thwarted, or obstructed by narrow and formalistic approaches to identifying grounds-based distinctions.
Social justice entails opposing discrimination and working towards eliminating structural
violence. The problem of overrepresentation of Indigenous peoples across Canada’s criminal justice system, a site of structural violence, has persisted for decades. Most studies uncovered through this review and meta-analysis indicated Indigenous disadvantage in criminal sentencing. Specifically, Indigenous peoples were at much greater risk of receiving punitive sentences than non-Indigenous people. Additionally, the disparity was observed to be significantly greater among women than men. This synthesis also elucidated the paucity of data and research related to Indigenous peoples’ involvement with the court system. Implications and future research needs are discussed.
There is a growing body of empirical research demonstrating that sentencing and other criminal justice decisions often have a detrimental, even traumatic impact upon an offender’s dependent children. Judges must balance numerous factors when making sentencing decisions, generally encompassing the protection of the public, the seriousness of the offence, and the personal circumstances of the offender. Should the probable impact of a sentence on an offender’s dependents be a significant factor to be weighed with these other factors in the process of sentencing? More specifically, when a court is sentencing an offender with parental responsibilities, does it have a duty to inquire about the potential impact of the sanction on the offender’s dependent child or children? Must it consider the principle of the best interests of the child or a child’s right to family life as a separate legal consideration in constructing a sentence? International human rights standards suggest that it does. After reviewing existing evidence on the potential hardship of sentencing decisions for an offender’s dependent children, the authors examine the experience of six countries in interpreting and applying these standards in their domestic laws, policies, and practices. They discuss some options for sentencing reforms in the broader context of efforts to reduce high rates of imprisonment in many countries and the need to address the differential impacts of criminal sanctions for primary caregivers and their children.
Canada has had a long-standing problem with both societal and institutional racism against Indigenous peoples, especially within the justice system. Numerous national inquiries, commissions, and investigations have all concluded that every level of the justice system has failed Indigenous peoples. More recent inquiries indicate that racism against Indigenous peoples is particularly problematic in police forces in Canada. Yet, despite the evidence, little has been done in Canada to act on the recommendations. This has resulted in the over-incarceration of Indigenous peoples, numerous deaths of Indigenous peoples in police custody, and the national crisis of thousands of murdered and missing Indigenous women and girls. This article seeks to highlight the lesser-known problem of police-involved racialized and sexualized abuse and violence against Indigenous women and girls as a root cause of the large numbers of murdered and missing Indigenous women and girls in Canada. It is argued that an in-depth look at police-involved disappearances, sexual assaults, and murders of Indigenous women should be included in a national inquiry into the high rates of murdered and missing Indigenous women and girls. It is hoped that such an investigation under the national inquiry will result in evidence-based analysis and recommendations for legislative and policy-based changes that are consistent with the human rights protections afforded Indigenous women and girls and with the calls for action by Canada's Truth and Reconciliation Commission, various United Nations human rights bodies, and the families, communities, and nations of the Indigenous victims.
This paper provides an outline of the appellate jurisprudence interpreting and applying the Supreme Court of Canada’s jurisprudence in Gladue. The decision interpreting the instruction in s. 718.2(e) of the Criminal Code for judges to consider reasonable alternatives to imprisonment “for all offenders, with particular attention to the circumstances of aboriginal offenders” inspired both intense hope and intense controversy. The acceptance of Gladue, as well as its failure to reduce Aboriginal overrepresentation, begs the question of how Gladue is applied in courts throughout the country. The first part of this article briefly outlines how the Supreme Court interpreted s. 718.2(e) in Gladue and in the subsequent case of Wells. The second part of this paper examines reported sentence appeals taken by the Crown from the sentencing judgments in which the trial judge has applied Gladue. The third part of this article examines appeals by the accused alleging that the trial judge has erred in applying s. 718.2(e) and Gladue. The fourth part of this article examines decisions that deal with the scope of Gladue, and in particular whether it applies to non-sentencing proceedings such as bail, contempt and dangerous offender proceedings. If Gladue remains an important step forward in recognizing the failures of the justice system with respect to Aboriginal people, its implementation at a national level represents two disappointing steps back: the failure to reduce Aboriginal overrepresentation and the focus on the seriousness of the offence.
Critics of law's many claims to power over women identify 'wars' on 'drugs' as a terrain of women's oppression. Domestic skirmishes in the drug 'wars' in countries of the North have facilitated intensified surveillance of women as they birth and raise their children or claim support from public institutions; justified intrusion into the 'private' spaces of women's bodies, their homes, and their places of leisure; and increased the criminalization of women. In the countries of the South that have borne the brunt of the globalization of American prohibition laws – places where the 'war' is literal, not metaphorical – women have been displaced by armed conflict and had their livelihoods destroyed by crop eradication programs.
Situated at the intersections of the North and the South are the women from poor countries and the poor women from rich countries who work as couriers, carrying small quantities of prohibited drugs from source and transit states into those in which consumers reside. In many states, including Canada, the United States, and the United Kingdom, convicted couriers normally receive very harsh sentences, usually multi-year prison terms. This sentencing practice has fuelled concerns about the imprisonment rates of black women from socially, politically, and economically marginalized communities. Some studies indicate that black women receive prison sentences for importing drugs at rates greatly disproportionate to their populations in the United States, the United Kingdom, and Canada and that drug-importation offences contribute significantly to the over-representation of black women in prisons.
The conventional view that severe punishment of couriers is necessary to achieve deterrence and protect society has encountered resistance from some sentencing judges in a few jurisdictions. They have criticized guidelines that produce harsh penalties, sought to modify these norms, and sometimes refused to invoke them. A recent Ontario sentencing decision offers what at first sight seems to be a fundamental break with established practice, both in its relatively light penalty and, more importantly, in its justification of the sentence. In R. v. Hamilton, the judge imposed conditional sentences on two black women couriers who had entered Canada after swallowing condoms stuffed with cocaine. Hill J.'s opinion characterizes importing by couriers as a distinctive offence deserving of mitigation because of the social context – the racialized identities, impoverished circumstances, and parenting responsibilities – of the women who commit it. His construction of black women couriers as trapped by their circumstances, 'desperate' for money and 'vulnerable' to exploitation by drug-trade organizers, draws on developments in feminist analysis and 'critical race theory' that have promoted social contextualization as a way to address discrimination. Without relinquishing the notion that courts must hold couriers accountable for their crimes, Hill J. seeks to temper the penal consequences of the offences, mitigating sentence on the basis that these women neither chose nor controlled the social context that drove them to commit their offences. This usage of social-context analysis did not persuade the appeal court, which treated the women's social context as marking them as precisely the kinds of persons that severe punishment seeks to deter and, hence, as a reason to impose harsh penalties.
Despite their different holdings on the relevance of social context to determining the penalty, the two decisions share common themes that have the effect of buttressing discriminatory as well as punitive practices of the criminal-justice system. First, they rest on similar understandings of how the social context of poor black women accounts for a disproportionate number of them appearing before the courts as drug couriers. Both opinions treat 'social context' as pertinent to the women's choices but not to those of officials. Neither imagines the possibility that the identities and circumstances of black women might cause them to be targeted when enforcement agents decide whom to watch, stop, and search. Second, both opinions reproduce the misleading portrayals of the dangers of drugs that have marked sentencing discourse since the state first criminalized intoxicants. This demonization of prohibited substances lays the foundation for portraying any importer of such substances as a menace to society, no matter how small...
This article offers a review of shifts in feminist legal theory since the early 1990s. We first use our respective histories and fields of expertise to provide a brief overview and highlight some key themes within feminist legal theory. We then examine Social & Legal Studies (SLS), asking whether it has met its key goal of integrating feminist analyses at every level. Our review suggests that SLS has offered many important contributions to feminist legal scholarship but has not fulfilled its lofty goal of integrating feminist analyses at every level of scholarship. It features feminist work quite consistently and some degree of mainstreaming is evident, as is the international reach of SLS. Too many articles fail, however, to incorporate or even mention feminist approaches. We end with thoughts about, and hopes for, the future of legal feminism, examining efforts to revitalize the field and suggesting possible directions for the future.
This paper examines the implications of the rise of restorative justice in criminal justice practice and discourse and whether a unified approach to criminal justice based on restorative justice is desirable or possible. Pure and partial theories of restorative justice are examined with an emphasis on the relation between restorative and retributive theories of justice. The author examines the hypothesis that restorative justice could contribute to a process of net widening. Concluding that popular ideas in criminal justice will by definition mean different things to different people, the author explores different approaches to restorative justice including those which stress the accountability of offenders, the rehabilitation of offenders and the crime prevention effects of restorative justice. The author also examines the various constituencies of restorative justice including the private or quasi-public sector, criminal justice professionals, crime victims, women and aboriginal peoples. The relation between restorative justice and the criminalization of politics is also assessed with special attention to the relation between restorative and aboriginal justice and the larger decolonialization project. The author concludes with some thoughts on the causes of the rise and the possible fall of restorative justice.
In 1996 Canada introduced progressive sentencing law reforms, such as: restorative non-carceral alternatives for offenders to serve their prison sentence in the community under strict conditions for up to two years; and special consideration of Aboriginal offenders so that courts may take into account the detrimental effects of colonialism such as residential schools, family breakdown and substance abuse. This article is a quantitative examination of 168 reported sentencing decisions to assess the impacts of these reforms upon Aboriginal men and women convicted of violent offences. Findings presented here suggest that the potential of sentencing law reforms is realized unevenly across Canada, pursued most often in sexual assault cases, and seldom on behalf of Aboriginal women. I suggest sentencing law reforms are insufficient strategies to address the incarceration spiral of Aboriginal women when the conditions of their lives are contoured by legacies of trauma and neglect.
The overrepresentation of Aboriginal women in Canada's justice 1 system is a longstanding social problem that is reflective of wider social and economic differences for Aboriginal peoples. While other minority and/or marginalized groups in Canada may experience similar intersections of race, gender, and class, a special ‘context of difference’, grounded in the colonial legacy of assimilationist policies, exists for Canadian Aborigines. It is argued that a cycle of violence and criminality for Aboriginal women has emerged from this context of difference. The relationship and tensions that exist between the ‘cycle’ and the ‘context’ are explored in an attempt to determine the nature of both. The implications of the relationship on the legal realities for Aboriginal women are discussed as well as the traditional and contemporary theoretical explanations offered for its existence. The paper concludes by considering possibilites for breaking the cycle.
For Abstract see ChemInform Abstract in Full Text.
In 1996, the Canadian government introduced progressive sentencing law reforms that called for special consideration of the conditions in Aboriginal communities as legacies of colonialism and to limit the use of incarceration. At the same time, feminist-inspired law reforms sought compulsory criminalization and vigorous prosecution of gendered violence. Since that time, there has been a doubling of the rate of imprisonment of Aboriginal women, and gendered violence is three and a half times greater in Aboriginal communities. Using the sentencing decisions of two cases involving Aboriginal women convicted of manslaughter, the author explores the practice of law as a site of backlash and an appropriation of feminist-inspired antiviolence strategies. The author draws on feminist and critical race studies of restorative justice in the context of gendered violence to examine why the victimization–criminalization continuum has not been fully recognized in the practice of restorative justice.
This article examines some of the theoretical and substantive issues associated with the uncritical embrace of selected feminist ideals in recent Canadian attempts to restructure and rethink federal women's imprisonment. The article focuses on the limitations of a woman-centered model of corrections and how these models of punishment fail to depart from more traditional conceptualizations of punishment. The definition and constitution of a woman-centered regime is troublesome because it relies on a problematic category of “woman”; it is insensitive to wider social, economic, and political cultural relations of power; it sets up a false dichotomy between the woman-and male-centered regimes; and it denies the material and legal realities of imprisonment. These concerns illustrate clearly that although the woman-centered model of corrections appears to be less intrusive and less punitive, it is not; further, the oppressive qualities of incarceration are simply obscured by a feminized social control talk.
This article maps out the current literature and trends in Canada in the area of restorative justice and intimate violence. It focuses on feminist and women-centered approaches to the debates and controversies in this area. The article concludes with a recommendation for a moratorium on new restorative justice initiatives dealing with intimate violence.
In this article, I report on findings from a qualitative study with 68 formerly incarcerated women in Canada which examined their experiences of imprisonment and release to the community. Data from this study illustrate a disjuncture between women-centered correctional policy rhetoric and the lived experience of incarceration. Programming is greatly affected by the prison culture of punishment and control and thus is not generally experienced as empowering. A women-centered approach is also not evident in regard to job skills development as prisoners are predominantly utilized for feminized jobs such as hairdressing, cooking, and cleaning the prison.
This paper uses recent policy changes in Canadian women's imprisonment to examine the emergence of neo-liberal strategies of penal governing. The first section critically assesses the claim that new strategies of crime control involve a reconfiguration of the responsibilities of state and civil society. In the second section, the logic and interpretive politics of empowerment strategies are evaluated. An emphasis is placed on how 'empowerment', a term previously associated with radical activists and social movements, is now as easily used by the Correctional Service of Canada to legitimate and justify the construction of a regime at five new regional prisons for women. This article reflexively examines the feminist and Aboriginal knowledges that contributed to the construction of empowerment as a legitimate and viable penal reform strategy; and it shows how feminist and Aboriginal reformers' notions of empowerment can be aligned with very different political rationalities and used as a strategy of responsibilization by policy makers and correctional officials. In particular, it shows how these knowledges get linked to penal power and used to create a new regime of governing and reinforce pre-existing relations of power. Finally, a discussion of the reassertion of sovereign and disciplinary power, when it comes to governing those who fail to take responsibility for their own empowerment is provided to show how neo-liberal strategies of government develop alongside, and operate in conjunction with, other forms of power.
Sentencing within a Restorative Justice Paradigm: Procedural Implications of
- Mary Ellen Turpel-Lafond
Victimization and Punishment
- Balfour
ONSC 1692 (“[t]he classic factors are present in this case
- See
Law Reforms”, note 9 at 91
- Balfour
Law Reforms”, note 9 at 98; Kaiser-Derrick
- Balfour
supra note 21 at 80. See also Jean Lash
- Murdocca
Prisons That Empower”, note 68; Paula Maurutto & Kelly Hannah-Moffat, “Assembling Risk and the Restructuring of Penal Control
For a detailed discussion of pre-sentence reports, see Kelly Hannah-Moffat & Paula Maurutto, “Re-Contextualizing Pre-Sentence Reports: Risk and Race”
Intersecting Challenges: Mothers and Child Protection Law in BC
- See Judith Mosoff
Gladue Was a Woman: The Importance of Gender in Restorative-Based Sentencing
- Josephine Savarese
Punishing Women: The Promise and Perils of Contextualized Sentencing for Aboriginal Women in Canada” (2007) 55 Cleveland State Law Review 269 at 273. See also
- Toni Williams
Talking Prisons and Human Rights”
- See Jesse Winter
:3/4 Canadian Woman Studies 25 at 25 [Monture, “Confronting Power
- See Patricia
- A Monture
Categorical Denials: Equality Rights and the Shaping of Social Identity” (1993) 19 Queen’s
- Jiwani
The Role of Section 718.2(a)(ii) in Sentencing for Male Intimate Partner Violence against Women
- Isabel Grant