Section 718.2 (e)’s directive to canvass all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of Aboriginal offenders was to be given real force. This study’s goal was therefore to identify what considerations may be impeding or encouraging the application of section 718.2 (e)’s directive through a constructivist discourse analysis of 33 court of appeal cases. The study has mapped trends and influences which weigh strongly on sentencing judges in the decision-making process and considerations that are affecting the application of this provision. Prohibitive and permissive dimensions of the Gladue case were identified related to the application of section 718.2 (e), creating competing ideals in the application of the provision. Modern Penal Rationality (MPR) underpinned many of the judges’ justifications. However, unforeseen considerations were also noted. Ultimately, MPR, dominates the sentencing calculus and diminishes section 718.2 (e)’s application and alternative/restorative potential.

Section 718.2 (e)’s directive to canvass all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of Aboriginal offenders was to be given real force. This study’s goal was therefore to identify what considerations may be impeding or encouraging the application of section 718.2 (e)’s directive through a constructivist discourse analysis of 33 court of appeal cases. The study has mapped trends and influences which weigh strongly on sentencing judges in the decision-making process and considerations that are affecting the application of this provision. Prohibitive and permissive dimensions of the Gladue case were identified related to the application of section 718.2 (e), creating competing ideals in the application of the provision. Modern Penal Rationality (MPR) underpinned many of the judges’ justifications. However, unforeseen considerations were also noted. Ultimately, MPR, dominates the sentencing calculus and diminishes section 718.2 (e)’s application and alternative/restorative potential.

Section 718.2 (e)’s directive to canvass all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of Aboriginal offenders was to be given real force. This study’s goal was therefore to identify what considerations may be impeding or encouraging the application of section 718.2 (e)’s directive through a constructivist discourse analysis of 33 court of appeal cases. The study has mapped trends and influences which weigh strongly on sentencing judges in the decision-making process and considerations that are affecting the application of this provision. Prohibitive and permissive dimensions of the Gladue case were identified related to the application of section 718.2 (e), creating competing ideals in the application of the provision. Modern Penal Rationality (MPR) underpinned many of the judges’ justifications. However, unforeseen considerations were also noted. Ultimately, MPR, dominates the sentencing calculus and diminishes section 718.2 (e)’s application and alternative/restorative potential.

This study explores the differences (and similarities) between sentencing reform and the legal practices of criminal defence lawyers. This research specifically focuses on Section 718.2 (e) of the Criminal Code, which is aimed at reducing the use of imprisonment for Aboriginal offenders and the application of the section in the Supreme Court’s 1999 decision R .v. Gladue. It investigates whether or not the section and/or Gladue has affected the legal practices of criminal defence lawyers and if so, how. The practice of lawyers, in this study, is conceptualized as structured action. The agency of lawyers is thus constrained and enabled by both macro and micro processes. These include traditional legal ideology, managerial/organizational ideology, presuppositions surrounding Aboriginality as well as the broader socio-political context of neo-liberalism and neo-conservativism. How the practices of defence lawyers either reflect or contradict the section and Gladue is examined through the oral narratives of lawyers—obtained through in-depth semi-structured interviews with twelve defence lawyers. The findings of this analysis show that the vast majority of lawyers were not integrating the section or Gladue in their defence strategies. This suggests that efforts to remedy the issue of Aboriginal over-incarceration need to be aware of the complexity of criminal justice processes, the agency of lawyers and the broader social and political context. / October 2008

This study explores the differences (and similarities) between sentencing reform and the legal practices of criminal defence lawyers. This research specifically focuses on Section 718.2 (e) of the Criminal Code, which is aimed at reducing the use of imprisonment for Aboriginal offenders and the application of the section in the Supreme Court’s 1999 decision R .v. Gladue. It investigates whether or not the section and/or Gladue has affected the legal practices of criminal defence lawyers and if so, how. The practice of lawyers, in this study, is conceptualized as structured action. The agency of lawyers is thus constrained and enabled by both macro and micro processes. These include traditional legal ideology, managerial/organizational ideology, presuppositions surrounding Aboriginality as well as the broader socio-political context of neo-liberalism and neo-conservativism. How the practices of defence lawyers either reflect or contradict the section and Gladue is examined through the oral narratives of lawyers—obtained through in-depth semi-structured interviews with twelve defence lawyers. The findings of this analysis show that the vast majority of lawyers were not integrating the section or Gladue in their defence strategies. This suggests that efforts to remedy the issue of Aboriginal over-incarceration need to be aware of the complexity of criminal justice processes, the agency of lawyers and the broader social and political context.

This study explores the differences (and similarities) between sentencing reform and the legal practices of criminal defence lawyers. This research specifically focuses on Section 718.2 (e) of the Criminal Code, which is aimed at reducing the use of imprisonment for Aboriginal offenders and the application of the section in the Supreme Court’s 1999 decision R .v. Gladue. It investigates whether or not the section and/or Gladue has affected the legal practices of criminal defence lawyers and if so, how. The practice of lawyers, in this study, is conceptualized as structured action. The agency of lawyers is thus constrained and enabled by both macro and micro processes. These include traditional legal ideology, managerial/organizational ideology, presuppositions surrounding Aboriginality as well as the broader socio-political context of neo-liberalism and neo-conservativism. How the practices of defence lawyers either reflect or contradict the section and Gladue is examined through the oral narratives of lawyers—obtained through in-depth semi-structured interviews with twelve defence lawyers. The findings of this analysis show that the vast majority of lawyers were not integrating the section or Gladue in their defence strategies. This suggests that efforts to remedy the issue of Aboriginal over-incarceration need to be aware of the complexity of criminal justice processes, the agency of lawyers and the broader social and political context.