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. The numbers are worse for Indigenous women, who make up over one-third of all women in jail. Here is a link on how to do it. We ask that you follow these guidelines. It focuses on the experiences of Indigenous peoples residing in the four major Anglo-settler-colonial jurisdictions of Australia, New Zealand, Canada, and the United States. 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. Initiatives such as Gladue reports and Indigenous persons courts make a real difference. I have described some of them in this article. “Our Indigenous […] Indigenous people are overrepresented in Canada's criminal justice system as both victims and as people accused or convicted of crime. Some of these royal commissions and public inquiries recommended a form of independent justice in Indigenous communities. 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. The Royal Commission on Aboriginal Peoples (RCAP) identified three viable explanations, each of which has a degree of currency in government thinking and academic literature: colonialism, socio-economic marginalization, and culture clash. It’s not that the problem can’t be fixed. They make up approximately 30% of all incarcerated individuals in Canada despite being approximately 4% of the total population.[1]. It remains high, and the conditions that led to the signing of the first AJA remain as valid today as they were in 2000. by Jonathan Rudin. [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. Since 1989, 13 provincial and federal inquiries, commissions and studies have examined the issue of Indigenous peoples and the justice system in Canada. 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 … 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. 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. 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. The overrepresentation of Indigenous Peoples in the justice system reproduces false racist narratives of their criminality that inform both judges and the prosecution. What is needed is a commitment from the federal and provincial governments to be a part of that change. [14], Increasingly, accused persons are choosing to self-represent as is their right. 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. “For too long, Indigenous peoples have been over-represented in our criminal justice system,” said David Eby, Attorney General. Jonathan Rudin is the program director at Aboriginal Legal Services. He is the author of Indigenous People and the Criminal Justice System: A Practitioner’s Handbook from Emond Publishing. 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. 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. The government has promised to bring in legislation to put an end to mandatory minimums, but it has not yet done so. 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. ", "Evidence - SECU (42-1) - No. 1470 Peel St. #200 Despite the findings of commissions and courts, and despite promises by prime ministers to address this issue — specifically Prime Ministers Jean Chrétien (in the 2001 Throne Speech) and Justin Trudeau (in his 2015 mandate letter to the Minister of Justice) — the numbers tell a different story. 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. [13] Duty counsel has been found ineffective in multiple ways including significant delays in reaching duty counsel in some jurisdictions, and communication barriers between the accused and duty counsel due to intoxication, mental state, or disability. Indigenous over-representation in prisons grew under Liberal and Conservative governments before and after the proliferation of mandatory minimum sentences. 668 likes. For example, in 2014, a significantly higher proportion of Indigenous people than non-Indigenous people in Canada (aged 15+) reported being victimized in the previous … [30], UNDRIP articles 5 and 40 both advocate for Indigenous Nations to revitalize and employ traditional legal structures for their Peoples. This article first appeared on Policy Options and is republished here under a Creative Commons license. Those options include release without conditions, undertaking with conditions, and recognizance. Further, intergenerational trauma and gender inequality has resulted in Indigenous women experiencing higher rates of post-traumatic stress syndrome and addiction. [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. Their experiences within the system are interwoven with issues of colonialism and discrimination. Indigenous youth represent 52% of all youth in care. “For too long, Indigenous peoples have been over-represented in our criminal justice system,” said David Eby, Attorney General. 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 … [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. 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. These commissions and inquiries have all come to the same conclusion: that the criminal justice system in Canada is failing Indigenous people. You are welcome to republish this Policy Options article online and in print periodicals. 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. “For too long, Indigenous peoples have been over-represented in our criminal justice system,” said David Eby, Attorney General. Legislative change is certainly useful in addressing the crisis facing the legal system with respect to Indigenous people. 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. Research and Statistics Division. [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. 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. Please attribute the author(s) and mention that the article was originally published by Policy Options magazine. The differences among provinces and territories in the way they have responded to Indigenous justice concerns are quite stark and revealing. 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. [14], Indigenous accused’s report that the conditions of associated with bail are often unreasonable, specifically for those in small, isolated communities as they may include limitations on who you may or may not have contact with. These Calls to Action recognize that FASD is a health issue that is negatively affecting Indigenous people. This conclusion was also reached by the Supreme Court of Canada on three occasions. 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. 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. Since the late 1990s, the proportion of Indigenous people who make up Canada’s jail population has increased from slightly more than 10 percent to over 25 percent. [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. [25], Youth who spend time in care are statistically more likely to have engagements with the criminal justice system [26][27][28], The Canadian Department of Justice has formally recognized the prevalence of systemic discrimination within the criminal justice system. 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. [24], Additionally, the intergenerational trauma from both the historical legacy and contemporary structural nature of colonialism, negatively impacts Indigenous parents resulting in Indigenous youth being overrepresented in the foster care system. The combination of these factors results in Indigenous women being significantly more likely to experience precarious housing or houselessness which is a factor in engagements with the criminal justice system. Because these initiatives are at the provincial or territorial level, the federal government has seen little need to become involved, but these initiatives require funding to thrive. 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. Additionally, abstinence conditions are difficult to comply with for individuals, without support, who experience substance abuse issues. This due to both its multigenerational nature and the age at which individuals experienced the trauma associated with residential schooling. Constitutionally, while criminal law is a federal responsibility, the administration of justice is a provincial-territorial responsibility. We know what works. That is why prosecutions under the Criminal Code — a federal statute — are carried out by Crown attorneys appointed by the province, usually in provincial courts, where judges are also provincially appointed. The Court consistently pointed out in these cases that the issues facing Indigenous people are based on the direct and systemic discrimination they face every day in the justice system. That is what it was for the family of Colten Boushie. Be part of the Policy Options discussion, and send in your own submission. Indigenous peoples in Canada are significantly overrepresented in the Canadian justice system. Accused persons have access to three types of representation in Canada, duty counsel, defense counsel, and self-representation. This is also the reason that so many of the inquiries and commissions mentioned earlier were called by provinces, because provinces have a significant role to play in addressing these issues. You are welcome to republish this Policy Options article online or in print periodicals, under a Creative Commons/No Derivatives licence. Indigenous people are overrepresented in the Canadian criminal justice system as both victims/survivors Footnote 8 and accused/convicted persons. [17], Indigenous Peoples often are not granted a bail option as they are perceived as ineligible due to family scenarios, financial positions, or a bias perception that Indigenous persons are more likely to reoffend. Individual or group trauma becomes intergenerational when the stress response affects how individuals parent including both how they parent and / or the ability to parent effectively. 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. C This article has been rated as C-Class … Indigenous Peoples & The Justice System. [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. 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. “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. 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. 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. For Indigenous people, the case was simply another milestone on the long and well-travelled road of injustice. 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. Joignez-vous aux débats d’Options politiques et soumettez-nous votre texte en suivant ces directives. The larger the group that shares the experience, or length of time the experience is sustained can amplify the trauma experienced. There is no government database of Indigenous deaths in Ontario's justice system. Accused persons can seek the services of legal aid for defense counsel however, it can be difficult to secure effective counsel. Protests in the United States in the wake of George Floyd’s death were most directly about policing and justice in the United States. Morning Star is deeply committed to advocating for indigenous sovereignty issues such as missing & murdered indigenous … The Canadian government has framed this disproportionate victimization and criminalization as being an "Indian problem." Indigenous Peoples and the Justice System. As with duty counsel, these factors can be aggravated in the presence of bias. Mental health and addictions issues are also key factors in engagement with the criminal justice system. There are 13 Gladue or Indigenous persons courts at the provincial court level in Ontario and five in British Columbia. 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. 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. "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. The 1999 Supreme Court of Canada decision, R. v. Gladue, acknowledged that the Canadian criminal justice system is systemically discriminatory in its treatment of Indigenous peoples and recommends courts consider an Indigenous person’s background when making sentencing decisions. 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. Indigenous peoples are vastly overrepresented in the Canadian criminal justice system. 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. 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. Access to justice for people living in rural areas is highly limited. Do you have something to say about the article you just read? Protests in the United States in the wake of George Floyd’s death were most directly about policing and justice in the United States. And that will require not only political will and legislative amendments, but also funding. This article provides an analysis of various explanations of the over-represenation of Indigenous people in the criminal justice system. The (in)justice system and Indigenous people, (This article has been translated into French.). Change is not only possible, it is necessary and vital. [21] This is despite the fact that they comprise 4.9% of the female population of Canada. Indigenous peoples in Canada are significantly overrepresented in the Canadian 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. There are also many examples of creative responses that have led to a positive engagement of Indigenous people with the current justice system. 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. That is what it is on a daily basis for Indigenous people across the country. 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). Understanding the Overrepresentation of Indigenous People in the Criminal Justice System. 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. [14], Once in front of a judge, Indigenous Peoples in Canada have historically received more and longer incarceration sentences. Explanations for this overrepresentation are both historical injustices, and the contemporary outcomes, faced by Indigenous Peoples and structural issues within the current criminal justice system. The review is built around a number of key arguments, including that centuries of colonization have left Indigenous peoples across … The three-hour seminar, Indigenous Peoples and the Justice System, is a joint initiative of the Court of Queen's Bench of Alberta and the University of Alberta. 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