Listening to what the criminal justice system hears and the stories it tells : judicial sentencing discourses about the victimization and criminalization of Aboriginal women

Criminalized Aboriginal women continue to be overrepresented in Canadian prisons. Research demonstrates they often have extensive experiences of victimization. This thesis explores how judges navigate these issues on sentencing, primarily by examining discourses about victimization in selected judgments. This author identified and reviewed 91 decisions sentencing Aboriginal women offenders, focusing those dealing with conditional sentences where possible. This author uses the feminist theory of the victimization-criminalization continuum to inform her thesis. Parliament attempted to respond to the overincarceration of Aboriginal peoples in 1996 with the enactment of amendments to the sentencing regime: s. 718.2(e) requires judges to consider alternatives to imprisonment for Aboriginal offenders where appropriate, and s. 742.1 offers one such alternative through the conditional sentence order. In R. v. Gladue, the Supreme Court of Canada directed how judges are to engage in the sentencing analysis for Aboriginal offenders. In 2012, the Court offered further clarification on this direction in R. v. Ipeelee. This is the context for this thesis. The histories of victimization of criminalized Aboriginal women being sentenced generally overlap with factors that comprise the Gladue analysis, and are interrelated. However, this author suggests that the focuses of the victimization-criminalization continuum and the Gladue analysis differ: the victimization-criminalization continuum most directly focuses on gendered vulnerabilities and reactions to victimization, whereas the Gladue analysis most directly focuses on reverberations of colonization (and how that should impact sentencing). This author uses various judgments to examine the overlap between these analyses, highlighting decisions that successfully integrate gendered understandings of victimization histories within the Gladue analysis, and those demonstrating more decontextualized reasoning. This author then discusses how judicial discourses about victimization intersect with discourses about rehabilitation and treatment. This author suggests associated problems that appear at this intersection – particularly where imprisonment is regarded as a place of healing (despite documented deleterious effects of incarceration). Finally, this author argues that recent incursions into the conditional sentencing regime through amendments to the Criminal Code that restrict its availability (first through the passage of Bill C-9 and then Bill C-10) are problematic for criminalized Aboriginal women who may otherwise be sent to prison