Canada representative and influential case R.v. Gladue and

Canada is a multicultural
society, the fundamental characteristic of multiculturalism is to recognize and
respect the diversity of culture, faiths, traditions, and languages. However, when
we look at the history of colonialism, we can find that the racial prejudice
and discrimination against aboriginal people are inevitably entrenched in this
country. According to R.v. Ipeelee,
the phenomena of indigenous over-representation in the criminal justice system
is not only a legal but also a social issue. The judges are conscious of the
sentencing process is biased against aboriginal people, to avoid such biases in
the legal system it is necessary to acknowledge and consider their disadvantaged
backgrounds. Moreover, the judges must assess the social context when making
decisions such as the employment rate, dysfunctional family background,
education opportunity, income, political factors and so on.

Keywords:
critical legal studies, rule of law, criminal justice system, racial bias

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I.           
Introduction (1 page, double space)

 

A.    Main
points:

a.       Briefly
introduce the case R.v Ipeelee including
the facts, issues, reasons, and the result (R.v
Ipeelee, 2012).

b.      Why Supreme
Court of Canada insisted that aboriginal people deserve the special
considerations in the criminal justice system.

c.       I will
also slightly mention the representative and influential case R.v. Gladue and related principles, and
the importance of 718.2(e) of the Criminal Code.

d.      What
social factors and context judges should take into consideration when
sentencing aboriginal people.

 

B.     Thesis:

a.       The bias against indigenous people is evident
in the over-representation of aboriginal people in the criminal justice system.
Based on R.v. Ipeelee, the racial bias
is highly strong in the sentencing process. To debar such prejudice towards
aboriginal people, the judges must consider their disadvantaged backgrounds
when sentencing them.

 

C.     Questions:

a.       Why
judges should consider social context when making decisions based on R.v. Ipeelee?

b.      In  R.v.
Ipeelee, in what circumstances the social context should be applied?

c.       Why critical
legal theories are more applicable than classical legal approaches for judges when
making legal judgments in R.v. Ipeelee?

 

 

     II.           
The Historical Factors Contributed
Systemic Racism (1-1.5 pages, double space)

 

A.    History
factors:

a.       The
history of colonialism, the reasons behind the prejudice to indigenous people (Palmater,
2014).

b.      The
rules of reception, the survival of aboriginal customary law in part of British
North America, in other words, the aboriginal’s laws did not disappear at the
time of settlement (Hogg, 2015).

c.       The
polices, laws, and measures have been used by European colonizers to eliminate
aboriginal people Canada such as Indian Act, Multigenerational Legacy (residential
school, sixties scoop), and Statutory Banishment (deny political rights, vote,
equal education, lack access to communities, run for elected position, etc.) (Palmater,
2014).

 

B.     Arguments:

a.       The mentioned
measures together contributed to making indigenous people in subordinate,
unequal, peripheral position.

b.      Because
of the historical factors contributed to making the aboriginal people in
marginalized position.

c.       Evidence:

                                                                                     
i.     
Political: less chance to participate in
political debate, law-making process, and judicial system.

                                                                                   
ii.     
Culture:  aboriginal people lose their culture and
language, and low educational background.  

                                                                                 
iii.     
Economic: low employment rate and poor
family background.

d.      The
above-mentioned reasons make the systematic discrimination towards indigenous
people and then further contributed to making them over-represented before the
court (Palmer & Driedger, 2011).

 

C.     Changes

a.       Court
start to recognize the systemic discrimination (Rudin, 2012).

b.      Social
changes lead to law and policies changes.

                                                                                     
i.     
718.2(e) of Criminal Code: request judges
sentencing aboriginal and non-aboriginal differently (R.v Ipeelee, 2012).

                                                                                   
ii.     
Sentencing circle: allow aboriginal to
participate in the sentencing process in their community to discuss the
possible outcomes.

                                                                                 
iii.     
Judges acknowledge the real historical and
social constructed racial discrimination against aboriginal people.

 

  III.           
The Importance of Critical Legal Theories
(4-5 pages, double space)

 

A.    Significance:

a.       Provide
the definition about critical legal theories (Devlin,
2001).

b.      Discuss
the importance of critical legal and substantive equity theories, especially focus
on critical race theory in regard to aboriginal jurisprudence (Devlin, 2001).

c.       How and
when judges should apply these theories in the sentencing process.

B.     Arguments:

a.       Focus
on R.v. Ipeelee, to what extent and/or
in what circumstances, judges should apply for these theoretical approaches to
make decisions.

b.      How their
aboriginal status, family background, and social-economic background make them
over-represented in the criminal justice system.  

c.       Why
white colonizers marginalized aboriginal in this society. Because of the
different legal consciousness, the white settlers and aboriginal people have a
different understanding about the law (Hogg, 2015).

d.      How
realized discrimination make aboriginal people have high accusation rate and
long sentencing punishment (Rudin, 2012).

e.       Further
explain why the different legal consciousness, because the white makes the laws
not aboriginal.

f.       
Discuss R.v. Gladue why judges revisit this case in R.v. Ipeelee. Court acknowledges the unequal social status in society
and set standards and principles in the future cases (Rudin, 2012).

g.      To
achieve the substantive equity and recognize the historically/socially
constructed disadvantages of aboriginal people, the judges must consider social
context when making decisions or sentencing them (Tanovich, 2008).

 

C.     Evidence:

a.       Changes
of Criminal Code to meet the social change (R.v
Ipeelee, 2012).

b.      Judges’
decision in R.v. Ipeelee and R.v. Gladue.

c.       Law
changes and social change, briefly introduce the legal pluralism (Vago & Nelson, 2014).