You are welcome to republish this Policy Options article online or in print periodicals, under a Creative Commons/No Derivatives licence. Due to the combination of all these factors Indigenous women are statistically more likely to participate in survival sex work, an activity criminalized in Canada. [4][5] Additionally, Indigenous family units were disrupted through the Residential School System and the Sixties Scoop. The intergenerational impact of things like residential school are invisible to judges unless someone raises those concerns — and it is usually the Gladue report that serves that function. More is necessary. From my father’s incarceration to his advocating for abolishing the death penalty, my family has carried on the struggle of freedom and justice, for all peoples. FASD service delivery in terms of diagnosis, prevention and intervention is lacking and has led to inappropriate treatment within the criminal justice system. The government has promised to bring in legislation to put an end to mandatory minimums, but it has not yet done so. This article is part of the Widening the Lens on Criminal Justice Reform special feature. Those options include release without conditions, undertaking with conditions, and recognizance. Duty counsel is responsible for supporting accused persons in understanding their legal rights, the legal process, and / or specifics relating to their case, investigation, or engagement with police. [14], Once in front of a judge, Indigenous Peoples in Canada have historically received more and longer incarceration sentences. Subsequently they have called upon the Canadian Federal Government to, among other interventions, commit to ratifying the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Protests in the United States in the wake of George Floyd’s death were most directly about policing and justice in the United States. Gladue reports provide that information as well and thus offer real options for sentencing. He is the author of Indigenous People and the Criminal Justice System: A Practitioner’s Handbook from Emond Publishing. "Indigenous perspectives have not historically been embedded in our legal systems - in our legislation, court decisions, advocacy," said Chief Justice Mary Moreau of the Court of Queen's Bench of Alberta. Indigenous peoples in Canada are significantly overrepresented in the Canadian justice system. There are also many examples of creative responses that have led to a positive engagement of Indigenous people with the current justice system. Section 718.2(e) is an example of legislation that has made a difference. But if the problem of over-representation is rooted in systemic and direct discrimination, to just throw up one’s hands is to say that, as a society, we don’t care that our major institutions continue to fail Indigenous people. Additionally, article 13.2 speaks to effective representation and participation by clarifying the requirement for language accessibility in all legal and official proceedings. While these issues affect Indigenous Peoples broadly, there are specific implications for Indigenous women and youth. “For too long, Indigenous peoples have been over-represented in our criminal justice system,” said David Eby, Attorney General. Recently, Indigenous and Federal governments have come together to address this systemic issue and improve the equity of outcomes for Indigenous Peoples within the Canadian criminal justice system. May 2019. Indigenous-specific courts have less need for resources but still require funding to allow for Elders or Indigenous knowledge helpers to participate in the courts. [6] Further, specific Indian Act legislation was passed that sought to erase Indigenous culture, language, and disrupt gender equality within Indigenous communities. In The Colonial Problem, Lisa Monchalin challenges the myth of the "Indian problem" and encourages readers to view the crimes and injustices affecting Indigenous peoples from a more … Further, intergenerational trauma and gender inequality has resulted in Indigenous women experiencing higher rates of post-traumatic stress syndrome and addiction. Duty counsel is a provincially managed legal aid system that provides free services to accused persons at their first court appearance if they are otherwise unrepresented. Indigenous people are overrepresented in the Canadian criminal justice system as both victims/survivors Footnote 8 and accused/convicted persons. ", "Evidence - SECU (42-1) - No. Please attribute the author(s) and mention that the article was originally published by Policy Options magazine. Editing the piece is not permitted, but you may publish excerpts. Understanding the Overrepresentation of Indigenous People in the Criminal Justice System. Mandatory minimum sentences are being struck down one by one by courts across the country but many remain, preventing judges from looking to meaningful alternatives to imprisonment for Indigenous and non-Indigenous offenders. Accused persons have access to three types of representation in Canada, duty counsel, defense counsel, and self-representation. This article first appeared on Policy Options and is republished here under a Creative Commons license. There is no doubt that if and when some of the more regressive aspects of the previous government’s criminal law agenda come off the books, there will be more room for creative responses from the courts. Indigenous Peoples and the Justice System. Indigenous Peoples and the criminal justice system: 3.1 Australia: The Aboriginal and Torres Strait Islanders; ... 3.6 Access to justice for Indigenous Peoples in Latin America: Throughout South America, the justice system is marred with several weaknesses which are exploited by criminals and states alike. For example, in Ontario, the province and Legal Aid Ontario fund the production of what are referred to as Gladue reports. The Supreme Court of Canada decision in R v Gladue both recognized this issue, and mandated justices to allow for provisions in sentencing that considered the historical and socio-economic factors that bring Indigenous Peoples before the court, in order to reduce Indigenous over representation in the carceral system. An independent justice system would recognize an important role for elders in the … For the most part, sentencing in Canada is done very quickly, and no one in the court is provided with much information about the offender. The overrepresentation of Indigenous Peoples in the justice system reproduces false racist narratives of their criminality that inform both judges and the prosecution. [16], In Canada there are 3 bail options to be granted at the discretion of the judge based on the effective arguments of both the defense and the prosecution. In Ipeelee the Court decried the failure of the system to answer the call of Gladue and renewed its call for changes in the way Indigenous offenders were sentenced by the courts. Reasons for the vast overrepresentation of Indigenous offenders and victims in the criminal justice system are discussed in this report. The concerns the case raised focused not only on the verdict by the all-white jury but also on how the jury was selected, in particular the fact … [19], Despite this ruling, Gladue principals are inconsistently and unreliably used so there has been little positive impact to Indigenous Peoples since the ruling in 1999. This article is within the scope of WikiProject Indigenous peoples of North America, a collaborative effort to improve the coverage of Native Americans, Indigenous peoples in Canada, and related indigenous peoples of North America on Wikipedia. That is what it was for the family of Colten Boushie. There are 13 Gladue or Indigenous persons courts at the provincial court level in Ontario and five in British Columbia. In 1998 in R. v. Williams, the Court found that jurors could be asked questions about their biases toward Indigenous people charged with criminal offences, since discrimination toward them was “rampant.” In 1999 in R. v. Gladue, the Court found that the over-representation of Indigenous people in Canada’s prisons was a “crisis in the Canadian criminal justice system.” The Court found that over-representation was “only the tip of the iceberg insofar as the estrangement of the aboriginal peoples from the Canadian criminal justice system is concerned.” In R. v. Ipeelee in 2012, the Court restated its findings in Gladue. These are but 2 of the 13 provincial and federal inquiries, commissions and studies that have looked at the issue of Indigenous people and the justice system since 1989. RJIP works to expose and address the disparities of California Indigenous people, especially women and youth in the carceral system using traditional and cultural lifeways and practices, community organizing and advocacy to restore justice to these communities and ancestral homelands. The Canadian government has framed this disproportionate victimization and criminalization as being an "Indian problem." Research and Statistics Division. Indigenous youth represent 52% of all youth in care. [31], Similarly, the Truth and Reconciliation Commission of Canada, Calls to Action 50-52 seek for the improvement of equity for Indigenous Peoples within the Canadian legal system [32], In 2018, the Canadian Federal Government issued a report on the Standing Committee on Public Safety and National Security’s investigation on Indigenous overrepresentation in the criminal justice system and subsequently issued 19 recommendations to improve equity of outcomes for Indigenous Peoples. The “historic new highs” of Indigenous people incarcerated in Canada’s prison system comes as no surprise to Indigenous people or those who have been paying attention to the issue. I have described some of them in this article. The development of courts with a particular emphasis on working with Indigenous offenders and accused persons is another way to address estrangement from the legal system. Alberta also has a robust Gladue report process, although it is administered very differently. [21], Due to the colonial legacy of the destruction of the Indigenous family unit through the residential school system, Indigenous youth are statistically more likely to come from single care giver homes resulting in less support and supervision. Additionally, they are statistically more likely to experience violence. [29], Indigenous leadership, including the Assembly of First Nations and the Métis National Council, have recognized the severity of the issue of Indigenous overrepresentation in the criminal justice system. The latter two include a promise to appear in court, posting of a financial surety, and have escalating sets of conditions at the discretion of the judge. In particular, the Royal Commission on Aboriginal Peoples, in its 1996 publication Bridging the Cultural Divide, recommended the establishment of independent justice systems on reserves. The work of the Gladue writers is supported by Gladue caseworkers or aftercare workers, who work with offenders after they are sentenced. These commissions and inquiries have all come to the same conclusion: that the criminal justice system in Canada is failing Indigenous people. This is … The meeting focused in particular on “micro-discriminations” or “micro-aggressions”, which are the myriad ways (some not “micro” at all) that society’s racist prejudices are conveyed to … VICTORIA – A partnership between the Province and the BC First Nations Justice Council (BCFNJC) is creating Indigenous justice centres throughout B.C., improving access to supports and helping individuals more easily navigate the justice system. Some of that change will have to come from a fundamental reform of the way justice is delivered, and that will mean the development of Indigenous-controlled justice systems. These courts do not create a faith in the system as a whole but rather are seen by Indigenous people as a place where they will be listened to, where their concerns and those of their communities will be heard and where, perhaps, they might actually get a sense of justice being done. THE CANADIAN PRESS/Jason Franson. Breaching either of these may result in forfeiture of the surety and/or additional criminal charges, and breaching recognizance may be accompanied by additional fines. In the case of Barton, released days before the National Inquiry’s report, the court acknowledged the detrimental effects of widespread racism against Indigenous people within our criminal justice system. The rural IPs living in South America … “They are closely interlinked with other central human rights concerns of indigenous peoples, including poverty, illiteracy, poor education, recognition of their lands, territories and resources and self-determination.” Systemic biases that favour nonjail sentences for those with homes and jobs work against Indigenous offenders, who are generally at the lowest rungs of the socio-economic ladder and are more likely to be homeless or marginally housed than other offenders. There are things that can be done and are being done to meaningfully address the over-representation of Indigenous people and the other factors that have led to the estrangement of Indigenous people from the justice system that the Supreme Court noted in Gladue. 668 likes. They make up approximately 30% of all incarcerated individuals in Canada despite being approximately 4% of the total population.[1]. Abolishing peremptory challenges — when lawyers do not have to give any reason for refusing to allow a person to sit as juror — was a recommendation of both the Manitoba Aboriginal Justice Inquiry, which reported in 1991, and the First Nations Jury Review in Ontario in 2013. Although the numbers and rates of Aboriginal young people and adults involved in the criminal justice system in Victoria are lower than most other Australian jurisdictions and national … Indigenous people are the most over-represented population in Canada’s criminal justice system. Access to justice for people living in rural areas is highly limited. [30], UNDRIP articles 5 and 40 both advocate for Indigenous Nations to revitalize and employ traditional legal structures for their Peoples. Site Map, Tackling Inequality as Part of Canada’s Post-Pandemic Recovery, Addressing Vulnerabilities for a More Equitable Pandemic Response, Building a More Inclusive Innovation Economy After the Pandemic, The Insider’s View Behind the Scenes of Election Campaigns, recent acquittal by a jury of Gerald Stanley, the Prime Minister and the Minister of Justice expressed their support for the Boushie family, in his 2015 mandate letter to the Minister of Justice, proportion of Indigenous people who make up Canada’s jail population, are being struck down one by one by courts across the country, Widening the Lens on Criminal Justice Reform. justice system works against I ndigenous people at every level, from police checks and a r- rests (e.g., Nettelbeck and S mandych 2010 ) to bail denial and deten tion (e.g., Roberts and Cries for justice for Indigenous people killed by police or failed by the legal system are reverberating across Canada, from coast to coast to coast. Some authors have argued that the primary cause of over-representation is widespread criminality among Indigenous peoples, rather than what is sometimes termed 'systemic bias' in the criminal justice system. It attributed the over-representation of Indigenous people to the impacts of colonialism, such as, but not limited to, the residential school system. Mental health and addictions issues are also key factors in engagement with the criminal justice system. Indigenous peoples are vastly overrepresented in the Canadian criminal justice system. 85 - House of Commons of Canada", "United Nations Declaration of the Rights of Indigenous Peoples", "Truth and Reconciliation Commission of Canada: Calls to Action", "Indigenous People in the Federal Correctional System", https://en.wikipedia.org/w/index.php?title=Indigenous_Peoples_and_the_Canadian_Criminal_Justice_System&oldid=999175910, Violence against Indigenous people in Canada, Creative Commons Attribution-ShareAlike License, This page was last edited on 8 January 2021, at 21:23. Montreal, Quebec At the most recent meeting of the A2JBC Leadership Group on October 27, 2020, we heard Indigenous leaders, lawyers and academics speak powerfully about how Indigenous people experience the justice system. The Supreme Court in Gladue said judges had a role in over-representation and they should ensure that they had the information necessary to allow them to meaningfully address this provision of the code. Ivan Zinger, the Correctional Investigator of Canada, issued his statement and a challenge earlier this month, reporting the proportion of Indigenous people behind bars has now surpassed 30 per cent. The federal government provides very little support for the production of Gladue reports. However, activists in many part of the world took up a message of solidarity against injustice and unequal treatment by the state, including many Indigenous peoples. These numbers, and their seemingly inexorable upward trend, might suggest that the problem of over-representation is intractable, and that nothing can be done to reverse the trend. Gladue reports are also available in Nova Scotia, Prince Edward Island, Quebec and British Columbia, and will soon be in Yukon. Indigenous Peoples twice as likely to be chosen to be surveilled by, or intervened with, by police due to racist stereotypes that criminalize Indigenous people. A gathering place for posts about Indigenous Peoples and the justice system in Canada. On the other hand, there is no funding for Gladue reports in Saskatchewan and Manitoba, provinces where one assumes the need is certainly as great as in Ontario. “For too long, Indigenous peoples have been over-represented in our criminal justice system,” said David Eby, Attorney General. C This article has been rated as C-Class … The court went on to plainly state what anyone who lives in the justice system trenches knows all too well: “Trials do not take place in a historical, cultural, or social vacuum. [12] Further, duty counsel may be under resourced or overburdened, and the combinations of these ineffective factors can be enhanced in the presence of bias or racism. There are only a few national data sources that provide criminal justice statistics disaggregated by Indigenous identity. [9], Contemporary outcomes stemming from intergenerational trauma experienced by Indigenous Peoples are overrepresentation in all negative categories of social determinants of poor health including poverty, precarious housing and employment, experience with violence, and disrupted family and support systems. RJIP is dedicated to addressing the disproportionate impact of the criminal & juvenile justice systems on Indigenous peoples throughout northern California. The Stanley case rightly became a major news item, and the Prime Minister and the Minister of Justice expressed their support for the Boushie family following the verdict, also to significant public notice. The section states that judges should look for alternatives to incarceration for all offenders, but with particular attention to the circumstances of Indigenous people. “The justice system criminalizes Native people but provides little to no resources when we ourselves are victims of violence.” ... Justice for Indigenous peoples outside of the confines of settler colonialism is a close reality. Protests in the United States in the wake of George Floyd’s death were most directly about policing and justice in the United States. “Indigenous People and the Criminal Justice System” provides a comprehensive background of the evolution of the interaction of Indigenous people with the criminal justice system, while giving practitioners useful and practical tools to better interact and advocate for their clients. Both options cover historical contexts including generational effects of colonization, Section 718.2 (e) of the Criminal Code, case and Indigenous law, Indigenous Persons Court, restorative justice, Gladue in practice and what is needed to increase its success moving forward. These issues include over policing, ineffective representation, inadequate application of bail, and over sentencing, which are all indications of systemic racism. The recent acquittal by a jury of Gerald Stanley, a white farmer, in the shooting death of Colten Boushie, an Indigenous man from the Red Pheasant First Nation in Saskatchewan, has again raised issues about the way the criminal justice system deals with Indigenous people. Canada H3A 1T1, Privacy Policy | [22], Indigenous women experience higher rates of poverty, precarious employment, and are statistically more likely to be single care givers. Since 1989, 13 provincial and federal inquiries, commissions and studies have examined the issue of Indigenous peoples and the justice system in Canada. [8], The combination of these colonial processes created a complex history of trauma for Indigenous peoples, however, of all the contributing factors, the Residential School System has been identified as of primary significance. | Souhaitez-vous réagir à cet article ? Often legal aid defense lawyers face similar impairments of being under resourced and overburdened while experiencing cultural and language barriers between themselves and their assigned clients. The over-representation of Aboriginal people in the criminal justice system is a complex and enduring issue. [10], These factors all contribute to engagements with the criminal justice system, Police have wide discretionary powers over surveillance and intervention of individuals in public. Self-represented litigants are less likely to achieve fair settlements, have worse outcomes in family and financial matters and their cases take substantially longer to come to conclusion. Additionally, abstinence conditions are difficult to comply with for individuals, without support, who experience substance abuse issues. It’s not that the problem can’t be fixed. This conclusion was also reached by the Supreme Court of Canada on three occasions. “Our Indigenous […] These include dispossession of Indigenous lands through the Numbered Treaties in which Indigenous Peoples received limited Reserve land[3] and restriction of personal freedoms through the enaction of the Pass System. “For too long, Indigenous peoples have been over-represented in our criminal justice system,” said David Eby, Attorney General. Be part of the Policy Options discussion, and send in your own submission. [33], Issues within the Criminal Justice System, Specific Issues for Indigenous Women in the Justice System, Specific Issues for Indigenous Youth in the Justice System, United Nations Declaration on the Rights of Indigenous Peoples, Truth and Reconciliation Commission of Canada, "Review of Research on Criminal Victimization and First Nations, Métis and Inuit Peoples 1990 to 2001", "The intergenerational effects of Indian Residential Schools: Implications for the concept of historical trauma", "The Pass System – An investigative documentary about racial segregation in Canada, revealing an illegal Indian Affairs policy denying Indigenous peoples the freedom to leave reserves, requiring them to carry a pass when doing so", "Honouring the Truth, Reconciling for the Future", "ARCHIVED - An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42, S.C. 1869, c. 6", "Aboriginal Peoples and Historic Trauma: The Process of Intergenerational Transmission", "Health Inequalities and Social Determinants of Aboriginal Peoples Health", "Intersection of Indigenous Peoples and Police: Questions about Contact and Confidence", "A Review of Brydges Duty Council Services in Canada", "Charterpedia - Section 10(b) – Right to counsel", "The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants", "Self-represented Litigants in Family Law Disputes: Views of Alberta Lawyers", "Table of Contents - Guilty pleas among Indigenous people in Canada", "Sentencing, Aboriginal Offenders: Law, Policy, and Practice in Three Countries", "Adult and youth correctional statistics in Canada, 2017/2018", "Aboriginal Peoples Highlight Tables, 2016 Census", "Aboriginal Women and the Canadian Criminal Justice System", "Overrepresentation of Indigenous youth in Canada's Criminal Justice System: Perspectives of Indigenous young people", "Reducing the number of Indigenous children in care", "Crossover Youth: Improving Ontario's Responses", "The Overlap Between the Child Welfare and Youth Criminal Justice Systems: Documenting "Cross-Over Kids" in Manitoba", "Can Foster Care Interventions Diminish Justice System Inequality? 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