Incarcerating cultural difference: race, national responsibility and criminal sentencing
Keywords: Indigenous peoples, Legal status, laws, etc
Indigenous peoples, Canada
Criminal justice, Administration of, Canada
Discrimination in criminal justice administration, Canada
Indigenous women, Legal status, laws, etc
Indigenous women, Canada
Blacks, Legal status, laws, etc
Blacks, Canada
Women, Black, Legal status, laws, etc
Women, Black, Canada
Racism, Canada

This project is a case study that examines the emergence, applications and implications of section 718.2(e) of the Criminal Code of Canada. This section of the Criminal Code states: "A court that imposes a sentence shall take into consideration the following principles: ... (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders." In 1999, the Supreme Court of Canada released R. v. Gladue and the meaning of section 718.2(e) was interpreted judicially and thus acquired the status of legal precedent. The Court reasoned that Canadian judges who sentence Aboriginal offenders must recognize the historical and systemic disadvantage that First Nations communities have endured and must consider remedial or "restorative justice" principles in the application of alternative sanctions. Recent sentencing decisions that follow this provision have also considered the impact of systemic racism against the Black community in Canada. Consequently, in several of these cases, judges have attempted to reduce sentences for Black offenders, recognizing how structural disadvantage and systemic racism have impacted their lives and their "crimes." These more recent sentencing cases mark the first decisions that attempt to extend and apply the provisions set out in the Criminal Code to a racialized community other than Aboriginal peoples. I understand section 718.2(e) as one form of legal compensation aimed to address the over-incarceration of Aboriginal peoples in Canada. I demonstrate that over-incarceration rates have been explained in ways that rely upon cultural difference paradigms. In particular, the impact of colonization on Aboriginal peoples and its legacy is most often anchored and transformed in law as being a fundamental problem of cultural difference. In this project, I maintain that section 718.2(e) simply follows this racist logic rather than address fundamental historical and structural questions. Through an analysis of the national and legislative history preceding this provision, as well as the case law identified above, this project addresses the implications of cultural difference paradigms that operate in the application of this sentencing provision. I show how this sentencing provision works through cultural difference frameworks in order to: (1) incarcerate certain populations based on a white settler logic of liberal legal compensation operationalized through legal strategies and legal reasoning in the context of sentencing hearings; (2) circumscribe the terrain of (possible) legal compensation the nation and law is willing to concede to and consequently, works to foreclose the range of reparations claims that can be made in name of the nation and (3) delineate the moral frame through which justice can be imagined. This project is motivated by the idea that it is necessary to investigate what appear to be anti-racist and/or anti-colonial legal incentives (incentives that identify a nation's own role and complicity in past injustice) and examine how they ultimately work to consolidate a particular version of the nation that is upheld by the implementation of individual and group justice.