Infusing Reconciliation into the Sentencing Process

(2019) 28:2 Constitutional Forum 25

6 Pages Posted: 22 Mar 2019 Last revised: 28 Mar 2019

Date Written: March 8, 2019


The Canadian criminal justice system has long been criticized for its over-incarceration of First Nations peoples. In response, Parliament required that courts consider the unique circumstances impacting First Nations persons before passing sentence, and in particular before imposing a sentence of imprisonment. Although these efforts are important for reconciling relations between First Nations people and Canada, scholars have paid inadequate attention to whether the process in which the vast majority of sentencing hearings are conducted might also hinder reconciliation. In this article, I contend that the traditional order of sentencing submissions will generally fail to facilitate important dialogue between state representatives and First Nations people. I propose that reversing the order in which counsel make sentencing submissions would allow for a dialogical approach to sentencing that would better ensure that First Nations offenders feel they are treated fairly by the criminal justice system.

Keywords: Criminal Law; Aboriginal Law

JEL Classification: K14

Suggested Citation

Fehr, Colton, Infusing Reconciliation into the Sentencing Process (March 8, 2019). (2019) 28:2 Constitutional Forum 25, Available at SSRN:

Colton Fehr (Contact Author)

Simon Fraser University ( email )

8888 University Drive
Burnaby, British Columbia V5A 1S6

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