In Canada, sentencing has been the target of reforming the criminal justice system with a view to alleviating the over-representation of indigenous people in the criminal justice system and the historic injustice perpetuated against indigenous communities through colonialism. My thesis explores how sentencing decisions from the Nunavut Court of Justice construct and shape Inuit identity in Nunavut. My research analyzes the sentencing decisions of the Nunavut Court of Justice since its creation in 1999. Using selected sentencing decisions as case studies, I interrogate how the Court uses notions of “Inuit”, “Inuit culture”, and “Nunavut”, both implicitly and explicitly. I show how rather than a tool for alleviating the historic injustice perpetuated against indigenous people through colonialism and systemic racism, the sentencing process perpetuates historic injustice through constructing binary, essentialized notions of Inuit identity. The consequences affect both the criminal justice system and the realization of indigenous self-determination. I conclude that as a result the Nunavut Court of Justice exemplifies an intractable dilemma facing the criminal justice system for indigenous people that sentencing reforms cannot solve. I suggest new ways of imagining criminal justice and indigenous self-determination that provide hope for a way out of the intractable dilemma. / Graduate

The sentencing provisions of section 718.2(a)(i) of the Criminal Code of Canada adopt the view that Canadians have the right to live in society without being subjected to hatred. The research has shown, however, that section 718.2(a)(i) misses the opportunity to address hate-motivated offences directed toward Aboriginal people. This is particularly troubling given the high rates of violence experienced by Aboriginal people and Aboriginal women. It is now widely acknowledged that Euro-centric laws and discriminatory policies flourished in Canadian society in an attempt to dismantle formerly organized Aboriginal nations and their strong structures of governance, diverse cultures of language, practices and traditions. Although later laws were entrenched to transform oppressive relationships, this thesis reveals there remains significant gaps in understanding hate motivated crimes directed toward Aboriginal people and Aboriginal women. The patterns of violence directed toward Aboriginal women substantiate the finding that for some men, Aboriginal women are considered prey. However, the sparse data available does not distinguish Aboriginal women as a specific class of people subjected to hatred. Reviewing the current case law, the thesis looks closely at: proving hate motivated offences, ideology, slurs, knowledge, degree of motivation, identity of the victim, the accused and issues surrounding denial of culpability. Several important broad findings and trends of the courts are drawn from the examined jurisprudence and literature. This thesis revels there is little case law giving meaningful attention to the hatred of Aboriginal people. Aboriginal people are rarely found to be victims of hate-motivated crimes. Aboriginal people and Aboriginal women are, with few exceptions, a missing category of protection under section 718.(2)(a)(i) in both the written provisions and case law. The direct and specific inclusion of Aboriginal women as a protected category of protection under s. 718.2(a)(i) and a definition provision of hatred would be consistent with principles of the constitution, human rights law and the provisions of the Criminal Code. Most importantly, it may assist in addressing gaps in addressing hate-motivated crimes directed toward Aboriginal people and Aboriginal women.

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 thesis tests one of the major propositions of deterrence theory: that increases in the severity of punishment can reduce the likelihood of offending. To this end, a case study in which the statutory penalties were doubled for almost all drink-driving offences in New South Wales, Australia, is examined. Two quasi-experimental studies were undertaken to assess the impact of these legislative changes: an interrupted time-series analysis of road crash rates (Study 1) and an analysis of drink-driving reoffending rates before and after the penalty changes were implemented (Study 2). Study 1 showed a significant increase in a surrogate measure of alcohol-related road crashes after the tougher drink-driving penalties were introduced. Further analyses suggested that this increase was driven primarily by a secular rise in non alcohol-related crashes that coincided with the policy???s implementation. Two possible conclusions about the deterrent effect of the policy are drawn from these findings: (1) that there was a reduction in alcohol-related road crashes which was overwhelmed by the rise in non alcohol-related crashes occurring around the same time or (2) that there was no change in crash rates. Study 2 found that drink-drivers who were convicted under the new penalty regime were less likely, and took longer, to reoffend than drink-drivers convicted before the introduction of the new penalties. This reduction in reoffending was only apparent for drink-drivers residing in country and regional areas and was small in magnitude.These latter findings are consistent with the possibility that the penalty changes coincided with a reduction in alcohol-related crashes but suggest that any decrease is likely to have been relatively small. A third study using a scenario-based survey methodology was also undertaken to examine the relationship between legal sanctions and willingness to drink-drive, controlling for other factors. The results of this study showed that participants who were more knowledgeable about drink-driving penalties were less likely to state that they would offend in the drink-driving scenario than participants who were less knowledgeable about the law. The implications of these findings for deterrence theory and criminal justice policy are discussed.

abstract: Prior sentencing research, especially research on cumulative disadvantage, has mainly focused on the treatment of male defendants, and little attention has been paid to female defendants, especially minority female defendants. Drawing on the intersectional vulnerability and focal concerns perspectives, the current study emphasizes the need to examine disparity in sentencing through an intersectional lens and across multiple decision-making points. Using the State Court Processing Statistics dataset (SCPS) from 1990-2009, this paper investigates the impact that race/ethnicity has for female defendants across individual and successive stages in the sentencing process. The results suggest that race operates through direct and indirect pathways to cause lengthier sentences for Black female defendants compared to White female defendants, thus providing evidence of cumulative disadvantage against Black female defendants. Theoretical, research, and policy implications will be discussed. / Dissertation/Thesis / Masters Thesis Criminology and Criminal Justice 2018

Magister Legum - LLM / The detention of juvenile offenders is not encouraged by both the Constitution and a number of international instruments. This right is entrenched in the South African Constitution (section 28(1)(g) ) which provides that every child has the right not to be detained except as a measure of last resort in which case, in addition to the rights a child enjoys under section s12 and 35, the child may be detained only for the shortest appropriate period of time. This Constitutional provision, in clear terms, views the incarceration of juvenile offenders in a serious light as it provides that the detention of juvenile offenders should be a measure of last resort. One of the important international instruments, the United Nations Convention on the Rights of the Child, (Article 37(b) provides that children may be arrested, detained or imprisoned "only as a measure of last resort and for the shortest possible period of time". This thesis examines the impact of the Constitution and some international instruments on the Criminal Law Amendment Act, 105 of 1997 with regard to juvenile offenders. It also sets out the current legal position in South Africa with regard to sentencing of juvenile offenders. / South Africa

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.

Jury sentencing has been the widely supported procedure of the American Criminal Justice system for a century, yet the stigmatization of mental illness that has been falsely influencing the proceedings of the courtrooms has gone unnoticed for too long. It is a common misconception that individuals with schizophrenia are violent deviants and as such they are more likely than defendants who do not carry the burden of a mental illness to receive harsher sentences when involved in criminal activities (Steadman, 1981). This study presented four conditions to which participants were randomly assigned, alone or in a group of three, and were asked to sentence a defendant, either with or without schizophrenia I hypothesized that group deliberations would result in more lenient sentences for defendants with schizophrenia than individual deliberations would, and that both group and individual deliberations would result in harsher sentences for defendants with schizophrenia than defendants who do not have a mental illness. The results of this study revealed that defendants with schizophrenia were sentenced in a more lenient manner than defendants with no mental illness. However, several other significant findings indicated an indirect negative attitude toward the mentally ill defendant.

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