Tansi Nîtôtemtik,
What does it mean to show someone mercy? To some, it means to treat others with leniency or compassion.[1] To others it is the “scandalous generosity towards those who may or may not deserve it”.[2] To me, mercy is granting someone a chance to do better, despite the choices they made, that caused harm. Whatever each of our personal connections to mercy might be, it is important to consider how Indigenous people are treated in the justice system. How are they shown mercy? Are they even shown mercy? In my research and experience, it has been clear to me that our criminal justice system has been slow to show Indigenous offenders any mercy.
Artwork: JOSHUA PAWIS-STECKLEY
For far too long, Indigenous offenders have entered criminal courtrooms with the outcome all but certain before they stepped inside. Before there were witnesses called, and testimony heard. Before there were exhibits entered. Before there was a verdict. Their fate was signed, sealed, and delivered.
For far too long, sentencing Indigenous offenders meant sending them to prison where Indigenous-specific healing resources were scarce at best. For far too long there weren’t any Indigenous teachings within state penitentiaries in Canada. There weren’t any Elders, and there certainly weren’t any opportunities to engage in ceremony.
Incarcerating Indigenous offenders without offering them culturally appropriate tools continues to be another way systemic harms are perpetuated against Indigenous peoples. Many Indigenous people have already suffered from the residential school atrocities either directly or indirectly. Leaving many of them without a sense of self, without their traditional teachings to guide them, and unable to find their way home.[3]
Elders: shining a light on the path of prevention
Despite knowing how beneficial Elders are to Indigenous communities, Elders were only available within Canadian penitentiaries on a volunteer basis from 1967 until 1992.[4] It was then that Elders were formally recognized by Correctional Services Canada (CSC) in a formal partnership enacted by the Corrections and Conditional Release Act.[5]
Involving Elders within penitentiaries has helped some Indigenous offenders reconnect with their lost cultural identities. In fact, for some offenders, incarceration provided them with their first experience of a traditional ceremony such as a sweat lodge.[6]
Reconnecting Indigenous peoples with their traditional teachings is just one way the criminal justice system can show mercy to Indigenous offenders. By showing them mercy in their traditional ways, Indigenous offenders generally return to their communities in a ‘good way’, which can reduce recidivism rates.
Expanding Indigenous Traditional Teachings within the Criminal Justice System
After the enactment of the Corrections and Conditional Release Act in 1992, the development of facilities dedicated to Indigenous-focused healing during incarceration were built. The first in Canada opened in 1995, and was a women-only facility outside Maple Creek, Saskatchewan.[7] The Okimaw Ohci Healing Lodge is a 29-bed facility that provides Indigenous women with healing based on the Nekaneet First Nation’s teachings.[8] Then, in 1997, a male-only facility for Indigenous offenders was opened near Maskwacis, Alberta. The name of the facility “Pê Sâkâstêw Centre” means “New Beginnings” and focuses on the viewpoints of the Samson Cree Nation.[9]
The overrepresentation continued to increase
Despite the good work Elders provided for Indigenous offenders, and the implementation of Healing Lodges, the overrepresentation of Indigenous peoples within the criminal justice system continued to climb. It seemed that nothing was changing despite the opportunities available. Perhaps it is because the opportunities were scarce at best. An approach available to all Indigenous offenders was needed.
In 1999 the landmark decision in R v Gladue was published. With this decision, Canada finally now possesses case law that calls upon the judiciary to recognize the unique and systemic factors of Indigenous peoples that lead to their overrepresentation within the criminal justice system.[10] The Gladue decision shone a light on ways the judiciary could show Indigenous offenders mercy, but this wasn’t enough to decrease their overrepresentation.
A chance to do better
From 1996 until now, the rate of Indigenous overrepresentation within the criminal justice system has risen between 120% - 165%.[11] With this in mind, I often ask myself ‘how can I make a difference for Indigenous offenders?’. I am only a few months away from being an articling student, and before I know it I will be called to the bar and actively practicing criminal law. What can I do to help the criminal justice system show mercy to Indigenous offenders? Healing lodges are underfunded, too limited, and severely lack resources to increase their availability to more Indigenous offenders. There is a significant underutilization of sentencing circles, and a significant lack of resources within Indigenous courts, and at times there is a clear disconnect within the judiciary on how to apply Gladue factors. If Indigenous courts require a guilty plea before an Indigenous offender can access the process within the Indigenous court itself, I ask you dear reader, how does that show mercy? How does that translate to reducing the overrepresentation of Indigenous offenders?
My only response to this is that it doesn’t make any sense. A judiciary failing to recognize and implement meaningful application of Gladue factors, or seeking alternatives to prison, is perpetuating systemic trauma. Addressing the systemic disconnect between the judiciary, the legal profession and the criminal justice system as a whole, is what is needed. That is when mercy will be truly shown to Indigenous offenders.
To learn more about how the legal profession can help address these harms, please join the Indigenous Law Students’ Association’s 2022 Speaker Series from February 28 until March 4 when they discuss various topics related to Indigenous peoples. An event I highly suggest is on March 1, 2022 at 12pm-1pm with Myrna McCallum, where she will be discussing the role lawyers play as healers in her introduction to the trauma-informed approach to lawyering.[12]
Until next time,
ReconciliACTION YEG
[1] Merriam Webster Dictionary online: <https://www.merriam-webster.com/dictionary/mercy>.
[2] Rev’d Todd Townshend, “Letting the Light in: Stories of Indigenous Spirituality” (August 12, 2021), online: <https://diohuron.org/news/letting-the-light-in-stories-of-indigenous-spirituality>.
[3] See generally: the Truth and Reconciliation Commission, “Honouring the truth, reconciling for the future: summary of the final report of the Truth and Reconciliation Commission of Canada (Winnipeg: James Lormier & Company Ltd., 2015).
[4] Seth Adema, “Tradition and Transitions: Elders Working in Canadian Prisons, 1967 - 1992” (2014) 25:1, J Canadian Historical Association, p 243-275 (https://www.erudit.org/en/journals/jcha/2014-v25-n1-jcha02048/1032804ar/).
[5] Ibid.
[6] James Waldram, The Way of the Pipe: Aboriginal Spirituality and Symbolic Healing in Canadian Prisons, (Toronto: University of Toronto Press, 1997) at 28-32.
[7] Government of Canada, “History of Healing Lodges” (September 5, 2019), online: Correctional Services Canada <https://www.csc-scc.gc.ca/002/003/002003-2001-en.shtml>.
[8] Government of Canada, “Institutional Profiles: Prairie Region: Okimaw Ohci Healing Lodge for Aboriginal Women” (September 12, 2017), online: Correctional Services Canada <https://www.csc-scc.gc.ca/institutions/001002-4007-en.shtml>.
[9] Government of Canada, “History of Healing Lodges” (September 5, 2019), online: Correctional Services Canada <https://www.csc-scc.gc.ca/002/003/002003-2001-en.shtml>.
[10] R v Gladue, [1999] 1 S.C.R. 688.
[11] Hon. Harry S. LaForme, “The Overrepresentation of Indigenous People in Prison” (November 24, 2021), online: First Peoples Law <<https://www.firstpeopleslaw.com/public-education/blog/the-over-representation-of-indigenous-people-in-prison#:~:text=There%20are%20many%20reasons%20why%20Indigenous%20people%20today,suffer%20intergenerational%20trauma%20from%20the%20impacts%20of%20colonialism.>.
[12] Myrna McCallum will be speaking at the 2022 Speaker Series put on by the Indigenous Law Students’ Association. The event is FREE and anyone can attend. Check it out https://ilsa2020.wixsite.com/ilsa/speaker-series-registration.