This article provides an analysis of various explanations of the over-represenation of Indigenous people in the criminal justice system. There is no government database of Indigenous deaths in Ontario's justice system. As with duty counsel, these factors can be aggravated in the presence of bias. 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. It doesn’t have to be that way. 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. We are continuing to discover and develop new initiatives. 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 … [15] The risks associated with self-representation is laypersons are not educated in the law and the judicial process so they can become overwhelmed to their own detriment. Legislative amendments are important, but they are not enough. Gladue reports are also available in Nova Scotia, Prince Edward Island, Quebec and British Columbia, and will soon be in Yukon. Additionally, article 13.2 speaks to effective representation and participation by clarifying the requirement for language accessibility in all legal and official proceedings. More is necessary. [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. Indeed, the book is an important resource for lawyers who are committed not only to reconciliation but … 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 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. Studies have shown that Indigenous persons courts — or First Nations courts, or whatever name they choose to go by — make a real difference in how Indigenous people feel they are treated by the legal system. C This article has been rated as C-Class … Legislation it introduced in 2016 to eliminate mandatory victim fine surcharges that accompany a criminal conviction, which are impossible for homeless and poor people to pay, has not moved past first reading. [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. [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? And that will require not only political will and legislative amendments, but also funding. [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. 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. [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. 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. May 2019. “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.” Those options include release without conditions, undertaking with conditions, and recognizance. The differences among provinces and territories in the way they have responded to Indigenous justice concerns are quite stark and revealing. by Jonathan Rudin. The work of the Gladue writers is supported by Gladue caseworkers or aftercare workers, who work with offenders after they are sentenced. Indigenous Peoples and the Justice System. Additionally, cultural and language barriers may exist between Indigenous persons and their Duty Counsel further impacting their access to effective representation. [18], Poverty, precarious employment and acting as a single caregiver are incentivizing factors to plead guilty. [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 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 that the defence was able to rely on the use of peremptory challenges to prevent any Indigenous people from serving on the jury. While these issues affect Indigenous Peoples broadly, there are specific implications for Indigenous women and youth. While there is no guarantee that federal funding would encourage recalcitrant provinces to actually start to engage with the realities faced by Indigenous people, it would allow those provinces and territories that are moving positively to accomplish much more. It remains high, and the conditions that led to the signing of the first AJA remain as valid today as they were in 2000. We ask that you follow these guidelines. 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. 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. [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. 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. Additionally, abstinence conditions are difficult to comply with for individuals, without support, who experience substance abuse issues. 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. Joignez-vous aux débats d’Options politiques et soumettez-nous votre texte en suivant ces directives. [14], Once in front of a judge, Indigenous Peoples in Canada have historically received more and longer incarceration sentences. 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 … 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. An independent justice system would recognize an important role for elders in the … “Our Indigenous Justice Strategy, authored in partnership with Indigenous peoples, emphasizes the importance of these new centres as a first step along that path, offering culturally appropriate supports to ensure better outcomes for everyone.” Here is a link on how to do it. “Challenges facing indigenous peoples in obtaining access to justice are not confined to criminal matters,”Kran said. The (in)justice system and Indigenous people, (This article has been translated into French.). 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 … | Souhaitez-vous réagir à cet article ? It’s not that the problem can’t be fixed. 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. Some of these royal commissions and public inquiries recommended a form of independent justice in Indigenous communities. This results in Indigenous people being over charged both in the volume and severity of offenses.[11]. This conclusion was also reached by the Supreme Court of Canada on three occasions. These commissions and inquiries have all come to the same conclusion: that the criminal justice system in Canada is failing Indigenous people. Section 718.2(e) is an example of legislation that has made a difference. Indigenous people are the most over-represented population in Canada’s criminal justice system. These issues include over policing, ineffective representation, inadequate application of bail, and over sentencing, which are all indications of systemic racism. Indigenous people may falsely plead guilty due to poverty, to avoid unreasonable restrictions on their movements or to detention to satisfy employment or care giving obligations. A gathering place for posts about Indigenous Peoples and the justice system in Canada. Their experiences within the system are interwoven with issues of colonialism and discrimination. 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. These reports, prepared by writers working for Indigenous organizations, provide judges, lawyers and Crowns with information on the backgrounds of the offenders who are being sentenced and suggest alternatives to incarceration where possible. For example, the federal government could, as the Manitoba and Ontario reports suggested, eliminate the use of peremptory challenges. It’s that the will to fix it is lacking. 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. 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. If trauma is experienced over multiple generations, the affects of intergeneration trauma can accumulate. "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. Initiatives such as Gladue reports and Indigenous persons courts make a real difference. 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. 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. 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. This should not really come as a surprise. Canada H3A 1T1, Privacy Policy | 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. 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. 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. Previous Next. Indigenous peoples are vastly overrepresented in the Canadian criminal justice system. They make up approximately 30% of all incarcerated individuals in Canada despite being approximately 4% of the total population.[1]. [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 Peoples & The Justice System. 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. Further, intergenerational trauma and gender inequality has resulted in Indigenous women experiencing higher rates of post-traumatic stress syndrome and addiction. “Our Indigenous […] These Calls to Action recognize that FASD is a health issue that is negatively affecting Indigenous people. [30], UNDRIP articles 5 and 40 both advocate for Indigenous Nations to revitalize and employ traditional legal structures for their Peoples. And there are more on the horizon, as the National Inquiry into Murdered and Missing Indigenous Women and Girls and the Public Inquiry Commission on Relations Between Indigenous Peoples and Certain Public Services in Québec will also be addressing issues of justice. If we are serious about reconciliation, we have to recognize that the justice system has been a place of injustice for Indigenous people. Innocence pleas require trial and bail must be granted to the accused to avoid pre-trial detention. 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. [14], Increasingly, accused persons are choosing to self-represent as is their right. Since 1989, 13 provincial and federal inquiries, commissions and studies have examined the issue of Indigenous peoples and the justice system in Canada. Indigenous over-representation in prisons grew under Liberal and Conservative governments before and after the proliferation of mandatory minimum sentences. 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. “For too long, Indigenous peoples have been over-represented in our criminal justice system,” said David Eby, Attorney General. The over-representation of Aboriginal people in the criminal justice system is a complex and enduring issue. Indigenous people are overrepresented in the Canadian criminal justice system as both victims/survivors Footnote 8 and accused/convicted persons. Indigenous people are overrepresented in Canada's criminal justice system as both victims and as people accused or convicted of crime. 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. Terms & Conditions | 1470 Peel St. #200 Change is not only possible, it is necessary and vital. 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. 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. Be part of the Policy Options discussion, and send in your own submission. 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. Approximately 40% of individuals appearing in family court appear in absence of counsel, and the trend of increased persons self-representing in also experienced in civil court proceedings. Gladue and Ipeelee both concerned themselves with interpreting section 718.2(e) of the Criminal Code, a provision that was introduced in 1996 as part of a comprehensive set of amendments dealing with sentencing in Canada. The section states that judges should look for alternatives to incarceration for all offenders, but with particular attention to the circumstances of Indigenous people. Protests in the United States in the wake of George Floyd’s death were most directly about policing and justice in the United States. [20], Indigenous women comprise 42% of women in custody. Where Gladue reports are available, Crowns change their positions on sentencing, and jail is relied upon much less. Do you have something to say about the article you just read? This article first appeared on Policy Options and is republished here under a Creative Commons license. ", "Evidence - SECU (42-1) - No. 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. Photo: A chant is performed during a rally in response to Gerald Stanley’s acquittal in the shooting death of Colton Boushie in Edmonton, Alberta, on February 10, 2018. 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. Montreal, Quebec 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. The overrepresentation of Indigenous Peoples in the justice system reproduces false racist narratives of their criminality that inform counsel. [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. 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. 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. [22], Indigenous women experience higher rates of poverty, precarious employment, and are statistically more likely to be single care givers. Morning Star is deeply committed to advocating for indigenous sovereignty issues such as missing & murdered indigenous … 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. There are only a few national data sources that provide criminal justice statistics disaggregated by Indigenous identity. The larger the group that shares the experience, or length of time the experience is sustained can amplify the trauma experienced. 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. [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. [7] Ultimately, the settler state endeavored to assimilate and enfranchise all Indigenous Peoples into dominant society. [21] This is despite the fact that they comprise 4.9% of the female population of Canada. He is the author of Indigenous People and the Criminal Justice System: A Practitioner’s Handbook from Emond Publishing. Indigenous peoples in Canada are significantly overrepresented in the Canadian justice system. 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 … Reasons for the vast overrepresentation of Indigenous offenders and victims in the criminal justice system are discussed in this report. 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. 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. If you would like to participate, please visit the project page, where you can join the discussion and see a list of open tasks. Legislative change is part of the process. 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. [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. The rural IPs living in South America … 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. 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 The federal government provides very little support for the production of Gladue reports. 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 peoples in Canada are significantly overrepresented in the Canadian justice system. The government has promised to bring in legislation to put an end to mandatory minimums, but it has not yet done so. 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. 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. [23], Indigenous youth make up 43% of youths in custody despite being 8% of Canada’s youth population. 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. Approximately 1,000 Gladue reports are written annually in Ontario. 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. 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. You are welcome to republish this Policy Options article online or in print periodicals, under a Creative Commons/No Derivatives licence. The primary reasons individuals have chosen to self-represent are financial inaccessibility of effective counsel and dissatisfaction with existing counsel. Editing the piece is not permitted, but you may publish excerpts. Judges and lawyers are not always familiar with noncustodial options, particularly those offered by Indigenous organizations. 668 likes. Intergenerational trauma, or transgenerational trauma, can occur when an individual or group experiences a significant trauma event. 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