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Canada’s Justice System Is Anti-Indigenous

Reversing the Trend in Indigenous Incarceration

Perhaps the most glaring evidence of the persistence of colonialism and white supremacy in so-called Canada is the disproportionately high number of Indigenous peoples in Canadian prisons. In 1995, when Indigenous peoples represented only three per cent of Canada’s total population, they made up 18 per cent of Canada’s incarcerated population – a number which has only increased since. Last year, Indigenous people represented just four per cent of the country’s population but made up 37 per cent of the population in its prisons. The Correctional Investigator of Canada, Ivan Zinger, said in a release, “[t]he Indigenization of Canada’s prison population is nothing short of a national travesty.”

Indigenous women, transgender, Two-Spirit people, and youth are among those most targeted by the justice system. Indigenous women make up half of the women serving sentences in federal prisons. In Saskatchewan, Indigenous women make up 98 per cent of the women in custody. In the years 2014 and 2015, Indigenous young people comprised a third of federal admissions to custody while making up just seven per cent of the general population.

Overrepresentation of Indigenous people in Canada’s prisons originates from a justice system rooted in colonialism and white supremacy. Yet the Canadian government’s “restorative justice” initiatives for Indigenous people in conflict with the law do not adequately acknowledge the underlying causes of the high incarceration rate. Instead, the pursuit of “restoration” with regards to Indigenous convicts is centred on rehabilitation after their sentencing. Without policies that acknowledge and attempt to repair the material conditions that drive high Indigenous incarceration rates, the Canadian government will fail to reverse the “Indigenization” of its prison populations. Systemic racism has kept Indigenous peoples in poverty and restricted their access to education, health care, and employment, and the disproportionate number of Indigenous people in the Canadian criminal justice system is a direct result of these conditions. Policing further perpetuates this cycle of incarceration as Indigenous people are often targeted by racial profiling. Once they’re in interaction with the court system, Indigenous victims are less likely to be afforded alternative sentencing options and more likely to have their requests for assistance ignored. 

The Supreme Court of Canada’s landmark decision in R. v. Gladue (1999) – a case surrounding the sentencing of a young Indigenous woman who pleaded guilty to homicide – advised lower courts to make sentencing decisions considering the background of Indigenous offenders based on section 718.2 (e) of the Criminal Code. The Supreme Court stated that the disproportionate number of Indigenous people in the justice system reflects “what may fairly be termed a crisis in the Canadian criminal justice system.” The Gladue decision also resulted in “Gladue rights” for all persons who self-identify as Indigenous. These rights allow for offenders who identify as Indigenous to prepare a “Gladue report,” which may outline certain circumstances or ways they have been marginalized so that these may be considered in sentencing decisions.

Despite this supposed advancement, the Indigenous population in prisons has been growing by about 44 per cent since April 2010, while the non-Indigenous incarcerated population has decreased by 13.7 per cent during that same period. In practice, Gladue reports may further entrench anti-Indigenous racism in the justice system. According to the First Peoples Law, one “sinister result of Gladue Reports” is their use by Corrections Canada “as evidence of an Indigenous offender’s likelihood to reoffend” and “as a basis to thus deny the offender early release,” often forcing Indigenous offenders to serve longer sentences than non-Indigenous offenders with similar convictions.  

Furthermore, Indigenous people are more frequently denied bail, which means they will be held in remand if they are an adult or pre-trial detention if they are a minor. They are also 33 per cent less likely to be acquitted than white people and 14 per cent more likely to plead or be found guilty; once convicted, Indigenous offenders are 30 per cent more likely to be imprisoned. Additionally, convicted Indigenous individuals are disproportionately sent to maximum security correctional facilities and are more likely to be placed in solitary confinement. As seen with Gladue, changes in the methods of sentencing have not provided an effective solution to the overrepresentation of Indigenous people in the justice system, and can instead increase the harm of the carceral system. It is therefore crucial to work towards a non-carceral model of community safety as an alternative.

In R v. Ipeelee (2012), Canada’s Supreme Court conceded that “Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process.” The Court also declared that lower courts should consider this in sentencing Indigenous offenders. In 2015, the Truth and Reconciliation Commission (TRC) called on all levels of government to “provide realistic alternatives to imprisonment for Aboriginal offenders” – such as the Indigenous Justice Program, which funds Indigenous-led community-based justice programs that use “restorative and traditional justice processes” rooted in traditional Indigenous cultures – and respond to the underlying causes of offending.” Although such programs are by themselves inadequate in addressing the high incarceration rates of Indigenous people, community-based programs are an important first step to take as an alternative to carceral systems of justice while simultaneously addressing the material conditions of Indigenous communities.

It is essential to recognize the systemic racism and material conditions that have allowed for the number of Indigenous people in prisons to increase drastically. The Canadian government must work to end the socio-economic marginalization of Indigenous peoples, starting with the Calls to Action of the TRC that outline improvements to education, health care, employment opportunities, and child welfare in Indigenous communities. These recommendations provide a path to begin to alleviate the “social and political inequalities, intergenerational trauma, and economic barriers” caused by colonialism that leave Indigenous people at higher risk of involvement with the legal system. Support Indigenous-led initiatives focusing on offering support to communities and educating Indigenous youth on the criminal justice system such as First Nations Justice Strategy and Level’s Indigenous Youth Outreach Program. Call on the Canadian government to take legislative action that will ensure fairness and equality for Indigenous peoples in the justice system. Support abolitionist movements that promote non-carceral models of justice, such as the Saskatchewan-Manitoba-Alberta Abolition Coalition, Defund the SPVM, and Solidarity Across Borders. Get involved with local organizations that support Montreal’s Indigenous community, like the First Peoples Justice Center of Montreal, the Native Friendship Center of Montreal, and Resilience Montreal.