Toward an Expanded Role for Indigenous Law in the Assessment of Moral Blameworthiness in Criminal Matters

Abstract

This article provides a critique of Canadian courts’ attempted integration of Indigenous laws into sentencing for criminal matters. First, it examines Canadian courts’ approach to resolving conflicts between Indigenous and Canadian laws in the context of recent criminal contempt proceedings in British Columbia, contrasting this approach with other legal domains. Second, it argues that Canada’s recognition of Indigenous laws creates an obligation to incorporate them into determinations of moral blameworthiness. Third, it analyzes the normative rationales underpinning Canada’s sentencing regime. Fourth, it argues that a failure to consider conflicts of Indigenous and Canadian laws in sentencing compromises the principle of proportionality. Fifth, it proposes a relaxed standard for admitting evidence of a conflict of Indigenous and Canadian laws at sentencing.