Plan B for Implementing Gladue: The Need to Apply Background Factors to the Punitive Sentencing Purposes

24 Pages Posted: 6 May 2019

See all articles by Kent Roach

Kent Roach

University of Toronto - Faculty of Law

Date Written: April 5, 2019

Abstract

The first part of this article examines the sentencing Indigenous offenders cases of Gladue and Ipeelee with a focus on what the Supreme Court of Canada says that may help judges in applying background factors to the various purposes of sentencing. The second part will be a preliminary discussion of how background factors including recent work on Indigenous law might inform the punitive purposes of sentencing relating to moral blameworthiness and the effectiveness of deterrence, denunciation and incapacitation of Indigenous offenders. This analysis is not meant to disparage the importance of rehabilitation or other restorative principles, but to focus on those aspects of sentencing jurisprudence that have been the most resistant to Gladue analysis and where change has the potential to reduce both Indigenous overrepresentation in prison and among crime victims.

Keywords: Sentencing Indigenous Offenders, Moral Blameworthiness, Punitive Purposes, Supreme Court of Canada

Suggested Citation

Roach, Kent, Plan B for Implementing Gladue: The Need to Apply Background Factors to the Punitive Sentencing Purposes (April 5, 2019). Available at SSRN: https://ssrn.com/abstract=3367159 or http://dx.doi.org/10.2139/ssrn.3367159

Kent Roach (Contact Author)

University of Toronto - Faculty of Law ( email )

Toronto, Ontario M5S 1A1
Canada
416-946-5645 (Phone)
416-978-2648 (Fax)

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