Is sentencing different if I’m Indigenous?
Question & AnswerIs sentencing different if I’m Indigenous?
4. Learn about sentencing options
Gladue principles say that jail should be a last resort for Indigenous persons. The court must consider all alternative and restorative options before a jail is given. Alternative options include a fine or a sentence that can be served in the community, like .
And when a jail sentence is given, the court must apply Gladue principles when deciding the length of the sentence.
The court must also consider other types of sentences and processes that are culturally-appropriate. This includes sentencing circles if they are available.
A is an alternative sentencing where the accused, affected community members, judge, Crown, and lawyer try to agree on an appropriate sentence that everyone is satisfied with. In some places, an Elder or Knowledge Keeper can help the court to understand Indigenous law and how it applies to the case.
The circle might also include an Indigenous court worker, police or court officers, and members of the accused’s family. The victim and members of their support network can also participate, if they wish.
Sentencing circles are usually not available where the sentence is longer than two years. And sentencing circles might not be available for some serious offences, like . It will depend on the courthouse where your case is being heard.
Sentencing circles are generally based on restorative justice principles. This means that instead of punishing the accused, sentencing circles try to help the accused heal their relationship with the victim and with the community.
How it works
Sentencing circles are usually organized by your lawyer. If you do not have a lawyer, you can ask if they can help with your sentencing circle. If they can’t help you, they might suggest that you make a Legal Aid application to hire a lawyer.
Sentencing circles vary in structure and process. But in most cases, before the sentencing circle happens, you must in front of a judge. If you’re in , you might be released on “ pending sentence”. This means that you will have bail conditions to follow, including a condition that you return to court on the date of your sentencing hearing.
The sentencing circle happens in court and is recorded, just like a regular court proceeding. The sentencing circle is not confidential.
The sentencing circle might use traditional Indigenous customs like smudging or a talking stick. Where an Elder is participating, they might open the circle with a song or prayer.
Participants in the circle might talk about your personal circumstances, the crime you have been charged with, and the appropriate way to repair the harm to the victim and the community. This is called “reparations” and includes things you can do to make up for the wrongdoings.
The participants will also recommend an appropriate sentence for you. The judge must consider the recommendations when sentencing you.
However, the judge doesn’t have to follow the recommendations of the sentencing circle. It is up to the judge to choose the sentence that they feel is appropriate for you. So even if you participate in a sentencing circle, the judge can still sentence you to jail.