Welcome to our new blog series on Gladue, where we delve into one of the most transformative legal principles affecting Indigenous justice in Canada. Whether you're a student, legal professional, or simply interested in social justice, this series will provide you with essential insights into the Gladue principles and their far-reaching effects on the Canadian legal system.
Why Should You Care?
The Gladue
case revolutionized how courts approach sentencing for Indigenous offenders,
emphasizing the need to consider their unique historical and systemic
challenges.
What You’ll Discover in This Series:
Starting this Monday and continuing for the next five weeks, we’ll delve into a critical exploration of Indigenous justice in Canada. Each week, our blog posts will offer a detailed look at different facets of this complex issue:
In week 1, we'll examine the statistics and data highlighting the overrepresentation of Indigenous peoples in Canadian correctional facilities. We’ll delve into how this overrepresentation affects both Indigenous communities and the broader justice system.
In week 2 will focus on the Gladue principles. We’ll discuss what these principles are, why they were introduced, and how landmark cases such as R. v Gladue, R. v Wells, and R. v Ipeelee have influenced sentencing practices.
In week 3, we’ll explore the operation of Gladue Courts and Indigenous Peoples Courts. We’ll look at how these specialized courts function and assess their benefits and challenges in addressing the unique needs of Indigenous individuals.
In week 4, will cover the various Indigenous programming roles within the justice system. We’ll investigate the functions of Indigenous Bail Supervisors, Restorative Justice Coordinators, and other key positions, and how these roles contribute to supporting Indigenous individuals navigating the legal system.
Finally, week 5, will provide insights into recent developments and future directions for Gladue principles and Indigenous justice initiatives. We’ll look at the latest updates and how these changes are impacting both the justice system and Indigenous communities.
Today, we will explore the profound and troubling issue of Indigenous overrepresentation in Canada's criminal justice system.
The Reality of The Overrepresentation of Indigenous People
In Canada’s
criminal justice system, a stark and troubling reality has emerged: Indigenous
people are vastly over-represented in correctional facilities. This story is
vividly told in the recent Juristat article by Robinson, Small, Chen, and
Irving (2024) from Statistics Canada, which dives into data from the fiscal
years 2019/2020 and 2020/2021.
Imagine
walking through a Canadian provincial correctional facility. What you’d find
might shock you: the rates of Indigenous people behind bars are alarmingly
high. Robinson and colleagues (2024) uncovered that in 2020/2021, the rate of
incarceration for Indigenous adults was 42.6 per 10,000 people. To put that in
perspective, non-Indigenous adults were incarcerated at a rate of just 4.0 per
10,000 (Robinson et al., 2024). This means that Indigenous adults are over ten
times more likely to be in custody compared to their non-Indigenous
counterparts.
The story
gets even more detailed when we look at different regions. Saskatchewan stands
out with the highest incarceration rate for Indigenous people—100.7 per 10,000.
Compare that to British Columbia, where the rate is much lower at 22 per 10,000
(Robinson et al., 2024)
Gender also
plays a significant role. Indigenous men are particularly over-represented,
with an incarceration rate of 77.8 per 10,000, compared to Indigenous women,
who have a rate of 9.4 per 10,000. For non-Indigenous populations, the rates
are much lower—7.6 for men and 0.5 for women (Robinson et al., 2024).
The COVID-19
pandemic brought some changes, though. As prisons struggled to manage the
health crisis, incarceration rates overall dropped. For Indigenous people, the
rate fell by 18% in 2020/2021. But here’s the twist: the reduction for
non-Indigenous individuals was even more significant at 27%, highlighting that
the gap in incarceration rates actually widened despite the decrease (Robinson
et al., 2024).
Another layer
of this story involves the different experiences of those in remand versus
sentenced custody. Indigenous individuals in sentenced custody are even more
over-represented than those in remand, with an Over-Representation Index of 9.8
compared to 8.5 for remand (Robinson et al., 2024).
These numbers are under-estimates because Ontario reports consider
instances where either there is “no data available” regarding Indigenous
identity or the inmate “preferred not to answer”, as being non-Indigenous.
The article
also points out that the over-representation of Indigenous people in
corrections increased by 14% from the previous year. This rise occurred despite
the overall drop in incarceration rates due to the pandemic. It’s clear that
while the pandemic altered many aspects of the justice system, it didn’t
resolve the deep-rooted issue of over-representation for Indigenous people
(Robinson et al., 2024).[1]
Indigenous Overrepresentation
as Victims
According to
Burczycka and Cotter (2024) in their detailed study Court Outcomes in
Homicides of Indigenous Women and Girls, 2009 to 2021, the justice system's
handling of cases involving Indigenous women and girls reveals notable
disparities compared to those involving non-Indigenous victims.
Examining court outcomes for homicides involving Indigenous women and
girls between 2009 and 2021, the study found that manslaughter charges were
significantly more common in these cases than in cases involving non-Indigenous
victims. Specifically, 41% of homicide charges in cases with Indigenous victims
were for manslaughter, which is double the 20% rate observed in cases involving
non-Indigenous victims (Burczycka & Cotter, 2024).
The data also shows that charges for first- and second-degree murder
were less frequently pursued when the victim was Indigenous. Only 59% of the
homicide charges in these cases were for first- or second-degree murder,
compared to 80% in cases involving non-Indigenous victims (Burczycka &
Cotter, 2024). This trend suggests that more severe charges are less common for
Indigenous victims, potentially due to plea agreements where individuals
charged with murder opt for manslaughter to avoid harsher penalties (Burczycka
& Cotter, 2024).
In terms of case outcomes, about 65% of cases involving Indigenous
victims resulted in a guilty finding, similar to the 57% guilty rate for
non-Indigenous cases. Interestingly, cases involving Indigenous victims were
resolved more quickly, with an average duration of 531 days compared to 585
days for non-Indigenous cases (Burczycka & Cotter, 2024). This shorter
resolution time could reflect procedural differences in how these cases are
handled.
Sentencing data further highlights disparities. The average custodial
sentence for those convicted of killing an Indigenous woman or girl was 11.4
years, which is three years shorter than the 14.4-year average for cases
involving non-Indigenous victims (Burczycka & Cotter, 2024). This indicates
that while custodial sentences are common, they tend to be less severe for
Indigenous victims.
Additionally, accused individuals in cases involving Indigenous victims
were more likely to have prior criminal convictions and a higher incidence of
intoxication at the time of the offense (Burczycka & Cotter, 2024). These
factors contribute to the complex dynamics influencing both the nature of the
charges and court decisions.[2]
Why Does Over Representation Occur?[3]
In the heart
of Canada’s legal landscape, a complex and troubling narrative unfolds—one that
reveals a stark and persistent overrepresentation of Indigenous people within
the criminal justice system. This story, as detailed in Scott Clark's 2019
report, Overrepresentation of Indigenous People in the Canadian
Criminal Justice System: Causes and Responses, delves deep
into the roots of this disparity, unearthing layers of systemic issues that
perpetuate this cycle.
Imagine, for
a moment, an Indigenous community where the daily interaction with law
enforcement paints a disheartening picture. On the surface, the idea of
community-based policing—where the police work hand-in-hand with the
community—seems like a beacon of hope. Various commissions and inquiries have
championed this approach, advocating for a model where law enforcement and
community members collaborate closely (Hylton, 2005, as cited in Clark, 2019).
Yet, in practice, this ideal often falls short. Indigenous communities face a paradox
of over-policing, where aggressive monitoring leads to higher arrest rates, and
under-policing, where their genuine concerns are neglected or inadequately
addressed (Rudin, 2007, as cited in Clark, 2019). This imbalance fuels systemic
discrimination and reinforces negative stereotypes.
This
troubling dynamic extends into the courtroom. Indigenous individuals often find
themselves navigating a legal system that seems skewed against them. Data
reveals that Indigenous people are denied bail more frequently than their
non-Indigenous counterparts and spend longer periods in remand or pre-trial
detention (Clark, 2016b, as cited in Clark, 2019). The inability to meet bail
conditions, often due to poverty or lack of support, further exacerbates their
situation. The cycle continues as those in custody are more likely to plead
guilty and face harsher sentences, deepening their entrenchment in the justice
system.
The story
does not end with courtrooms; it extends into the realm of corrections. Despite
federal efforts to address overrepresentation through provisions like Sections
81 and 84 of the Corrections and Conditional Release Act, these measures often
fail to meet their goals (OCI, 2012, as cited in Clark, 2019). Healing lodges
and community-based corrections were designed as alternatives to traditional
incarceration, yet their implementation remains fraught with challenges. The
Correctional Investigator’s reports highlight a grim reality: Indigenous
inmates face harsher conditions, longer sentences, and more difficulties in
securing parole (OCI, 2014, as cited in Clark, 2019).
Adding
another layer to this narrative is the cultural clash that underpins many of
these challenges. Indigenous and Western justice systems differ profoundly in
their approaches. Where Indigenous cultures often emphasize rehabilitation,
community reintegration, and healing, the mainstream justice system tends to
focus on punishment and retribution (Rudin, 2007, as cited in Clark, 2019).
This cultural dissonance is not merely a matter of different methods; it is a
profound misunderstanding of deeply rooted values.
I believe
this is one of the most significant issues within our justice system. No matter
how much the system tries to incorporate Indigenous perspectives, it
fundamentally fails to grasp the essence of these values. Indigenous cultures
have rich traditions and views on justice that the current legal framework
struggles to accommodate. Forcing Indigenous people into a system that does not
align with their values often results in further alienation and
misunderstanding. This failure to truly understand and integrate Indigenous
ways of thinking about justice perpetuates the cycle of overrepresentation and
reinforces systemic inequities.
Restorative
and community-based approaches to justice, which align more closely with
Indigenous values, offer promising alternatives. These methods emphasize
healing and reconciliation rather than punitive measures. However, they often
struggle to gain traction in a system that favors traditional adversarial
approaches. This disconnect leaves many Indigenous communities feeling
alienated from the justice system and reinforces the cycle of
overrepresentation.
Scott Clark’s report reveals that the overrepresentation of Indigenous people in the criminal justice system is a multifaceted issue rooted in systemic flaws. From policing practices to courtroom procedures, from corrections to cultural misunderstandings, each element contributes to this ongoing crisis. Addressing these issues requires a comprehensive approach that integrates community-based and culturally relevant strategies. Only by confronting these deep-seated problems can the promise of justice be realized for Indigenous individuals and communities, breaking the cycle of overrepresentation and paving the way for meaningful reform.
Disclaimer:
For a detailed disclaimer, please refer to our site’s general disclaimer. Readers are encouraged to critically evaluate the information provided and conduct their own research. This blog should not be relied upon as the sole resource or fact. Consult additional sources to form informed opinions.
[1] Robinson, P., Small, T., Chen, A., & Irving, M. (2024). Over-representation of Indigenous persons in adult provincial custody,
2019/2020 and 2020/2021. Statistics Canada. https://www150.statcan.gc.ca/n1/pub/85-002-x/2023001/article/00004-eng.htm
[2] Burczycka,
M., & Cotter, A. (2024). Court outcomes in homicides of Indigenous
women and girls, 2009 to 2021. Statistics Canada. Retrieved from https://www150.statcan.gc.ca/n1/pub/85-002-x/2023001/article/00006-eng.htm
[3] Clark, S. (2019). Overrepresentation of
Indigenous people in the Canadian criminal justice system: Causes and responses. Retrieved from https://www.justice.gc.ca/eng/rp-pr/jr/oip-cjs/oip-cjs-en.pdf
Comments
Post a Comment