Judicial Depictions of Responsibility and Risk: The Erasure of State Accountability in Canadian Sentencing Judgments Involving Indigenous People

Author

Sarah Jane Nussbaum, Osgoode Hall Law School of York University (Student Author)

Date of Award

3-3-2022

Document Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

First Advisor

Francois Tanguay-Renaud

Abstract

This dissertation is set within the context of Canadas mass imprisonment of Indigenous people and centres on a critical evaluation of reported sentencing judgments. In particular, the dissertation examines some of the ways in which sentencing judges both draw attention to, and obscure, state accountability. The dissertation demonstrates that sentencing judges erase the role of the state in the criminalization of Indigenous people and in the construction of Indigenous people as risky. The result is that sentencing judgments rationalize and support the re-entrenchment, rather than the redressing, of the states oppression of Indigenous people. The dissertation is theoretical and descriptive, critically examining sentencing judges portrayals of Indigenous people and the state. The case studies are disheartening: the studies illustrate a few different ways in which sentencing law, despite purportedly aiming to repair systemic harm, continues to cement such harm. Yet the theoretical tools used to dissect sentencing judgments destructive practices can also assist in thinking through possibilities for change. The dissertation draws on theories that engage with the centrality of relationships in peoples lives (including peoples relationships with the state), the role of the state in generating and sustaining inequality, the interconnections between state efforts to contextualize Indigenous people and the reinforcement of stereotypes, and the resilience, strength, and diversity of Indigenous Peoples, communities, families, and individuals. These theories all support some existing proposals (and some current practices and possible new proposals) for pursuing decarceral approaches. The decarceral approaches that this dissertation addresses recognize that any sentencing analysis (including an analysis of how to assign responsibility for past criminalized conduct and an analysis of how to protect a community in the future) requires a consideration not only of criminalized individuals experiences but also of the states actions and inactions. A sentencing analysis must see and identify the state as having contributed to the criminalization of Indigenous people and to the construction of Indigenous people as risky. Additionally, the state must take accountability for its actions in historically and contemporarily inflicting violence on Indigenous people and for its potential to instead support Indigenous peoples resilience, safety, and sovereignty.

Comments

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Recommended Citation

Nussbaum, Sarah Jane, "Judicial Depictions of Responsibility and Risk: The Erasure of State Accountability in Canadian Sentencing Judgments Involving Indigenous People" (2022). PhD Dissertations. 82.
https://digitalcommons.osgoode.yorku.ca/phd/82