Broken Promises: A Response to Stenning and Roberts' "Empty Promises"

Abstract

The authors argue that the data relied upon in Stenning and Roberts' article "Empty Promises: Parliament, The Supreme Court, and the Sentencing of Aboriginal Offenders" do not support their conclusions that Aboriginal over-representation in prison is not a national problem and that Aboriginal offenders already receive shorter sentences than comparable non-Aboriginal offenders. The authors then argue that the proper purpose of s.718.2(e) is to reduce Aboriginal over-representation in prison and not, as Stenning and Roberts have argued, to eliminate discriminatory disparities in the sentencing of Aboriginal offenders. They suggest that s. 718.2(e) can be justified by theories that relate Aboriginal over-representation in prison to the unique experience of colonialism and not, as Stenning and Roberts suggest, to social and economic disadvantage that Aboriginal offenders may share with other offenders. Finally, the authors suggest that Stenning and Roberts' arguments against the reference to Aboriginal offenders in s. 718.2(e) are related to implicit assumptions about the needs for formal equality and sentencing tied to desert. These assumptions are not in accord with Canadian law, which favours substantive equality and sentencing that is not determined by desert.