This paper explores the argument that section 718.2(e) of the Criminal Code, which gives direction to sentencing judges that they should be particularly mindful of Aboriginal offenders and their unique circumstances (social, political and cultural), is an “other right” within the scope of section 25 of the Charter. The author relies on a contextualized understanding in making the argument that the Aboriginal sentencing provision of the Criminal Code is a reparative right that addresses the colonial harms experienced by Aboriginal peoples by past and to some extent present policies of colonization and assimilation. Such a benefit unique to Aboriginal peoples contained within the Criminal Code may not at first blush seem like the kind of Aboriginal right that has come to be defined by the courts (such as an Aboriginal right to hunt moose, for example). Section 25, however, extends in scope beyond such limited characterizations of what can constitute an Aboriginal right. Section 25 includes “other rights” and logically includes section 718.2(e) to the extent that it provides a unique benefit or right that recognizes the reality of Aboriginal colonization in Canada. Although the Aboriginal-specific sentencing provision may withstand an equality Charter challenge under section 15(1) because it meets the necessary criteria of an “ameliorative” program under section 15(2) of the Charter, the author argues that this approach will do more damage than good in moving towards the goal of achieving Aboriginal decolonization in Canada. To place Aboriginal interests within the confines of “groups” who require ameliorative programs to overcome disadvantage ignores the unique political status of Aboriginal nations as nations working with Canada to redefine the country according to post-colonial values. The myth that Canada is a bilingual, bijuridical and bicultural nation (English and French) is too powerful. Courts must resist any approach that reinforces this myth, which section 15(2) of the Charter does, and instead opt for one that recognizes Aboriginal peoples as founding nations alongside of Canada and not diminished by it, which section 25 of the Charter is more capable of achieving provided a robust interpretation of its provisions are adopted.
"The Aboriginal Sentencing Provision of the Criminal Code as a Protected “Other Right” under Section 25 of the Charter."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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