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Preventing Overrepresentation of Indigenous Offenders

Tansi Nîtôtemtik,

“Why does your law, from the Ten Commandments to the Criminal Code, speak only about what people should not do? Why don’t your laws speak to people about what they should be?” [1]

Good question. I can think of no better way to express the significant difference between Indigenous and non-Indigenous ways of thinking when it comes to the criminal justice system. This week we are discussing preventative measures that can be implemented within the justice system. Today's post addresses how we can prevent overrepresentation of Indigenous peoples within the criminal justice system. First, here is some context.

The criminal justice system is entirely based on a European settler framework and fails to consider Indigenous perspectives. It is not a coincidence that Indigenous peoples are overrepresented within the criminal justice system. In 1994/1995 Indigenous peoples consisted of approximately 3.8% of the Canadian population. However, they represented more than 10% of incarcerated offenders.[2]

In 1996, the federal government responded with Bill C-41 in 1996. This bill aimed to decrease the overrepresentation of Indigenous offenders by allowing sentencing judges to use alternatives to incarceration for Indigenous offenders.[3] However, this failed to change the trajectory for Indigenous offenders… in fact, in 2020 Indigenous offenders consisted of more than 30% of incarcerated offenders, despite consisting of only 5% of the Canadian population.[4]

As a practical reality, the criminal justice model is based on the settler framework because settlers imposed their ways on Indigenous communities. Additionally, Indigenous communities had their own criminal justice systems prior to colonization, but because they were not recognized as adequate systems by settlers, colonial governments did not recognize Indigenous legal orders that addressed harmful behaviour. Criminal matters were never included within treaty negotiations![5] And because criminal matters were not included within treaties, Indigenous communities have retained their jurisdiction over criminal matters.[6]

We continue to face an ever increasing and significant problem of overrepresentation of Indigenous peoples within the criminal justice system and despite attempts to implement legislative measures aimed at decreasing the number of Indigenous offenders, the numbers continue to rise. Clearly settler ideas are failing Indigenous peoples.

The Truth and Reconciliation Commission of Canada (TRC) Calls to Action #42 has called upon the provincial, territorial and federal governments to recognize and implement Indigenous justice systems.[7] Implementing Indigenous justice systems when Indigenous communities have retained jurisdiction over criminal matters seems counterintuitive. However, the TRC calls upon governments to recognize and implement Indigenous justice systems because settlers imposed their justice system on Indigenous communities and stripped them of their independence in these matters.

Some elements of Indigenous justice systems are starting to return to criminal justice sentencing options. One such option are healing lodges [8], which provide sentenced offenders a culturally appropriate, Indigenous based, sentencing option. Yet these resources are extremely limited with a total of 10 buildings, and only 439 spaces available to Indigenous offenders.[9] The greatest benefit of Healing Lodges however, is the revitalization of Indigenous culture within the individual, which is a significant element in reducing rates of reoffending. Perhaps this is one way we can prevent further increases to the overrepresentation of Indigenous offenders within the criminal justice system.

Other preventative measures could include a return to Indigenous justice systems by recognizing Indigenous jurisdiction over criminal justice matters. Could this be a way to embrace prevention rather than backfill a system that clearly isn't working? These are purely rhetorical questions, because frankly I personally do not hold the answers. What are your thoughts?

Until next time,

Amanda & Team ReconciliACTION YEG

Artwork by Randy Charboneau, as featured on the cover of Rupert Ross' book: Returning to the Teachings: Exploring Aboriginal Justice.

[1] Rupert Ross, Returning to the Teachings: Exploring Aboriginal Justice, (Saskatchewan, Penguin Group, 2006) at 271.

[2] Correctional Services Canada, “Demographic Overview of Aboriginal Peoples in Canada and Aboriginal Offenders in Federal Corrections” (15 August 2013) online: Correctional Services Canada <https://www.csc-scc.gc.ca/aboriginal/002003-1008-eng.shtml>.

[3] Meaghan Irons, “Section 718.2(e) of the Criminal Code and Aboriginal Overrepresentation in Canadian Prisons” (2018), 2018 Undergraduate Awards at 1, online: <https://ir.lib.uwo.ca/cgi/viewpoint.cgi?article=1001&context=undergradawards_2018>.

[4] Marie-France Kingsley, “Indigenous People in Federal Custody Surpasses 30%: Correctional Investigator Issues Statement and Challenge”, (21 January 2020), online: Office of the Correctional Investigator, News Release <https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx>.

[5] Harold R. Johnson, Peace and Good Order: The Case for Indigenous Justice in Canada (McClelland & Stewart, 2019) at 121.

[6] Ibid.

[7] Truth and Reconciliation Commission of Canada, Calls to Action, (2015) online (pdf): <https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/indigenous-people/aboriginal-peoples-documents/calls_to_action_english2.pdf>.

[8] Correctional Services Canada, “About the Different Lodges” (05 September 2019) online: Correctional Services Canada <https://www.csc-scc.gc.ca/002/003/002003-2002-en.shtml>.

[9] Ibid.

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