[21] This is despite the fact that they comprise 4.9% of the female population of Canada. Since 1989, 13 provincial and federal inquiries, commissions and studies have examined the issue of Indigenous peoples and the justice system in Canada. 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. 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 example, in Ontario, the province and Legal Aid Ontario fund the production of what are referred to as Gladue reports. 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. And while Canada now imprisons fewer and fewer young people, more and more of those young people are Indigenous. Previous Next. Section 718.2(e) is an example of legislation that has made a difference. [23], Indigenous youth make up 43% of youths in custody despite being 8% of Canada’s youth population. It’s that the will to fix it is lacking. 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. [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. Constitutionally, while criminal law is a federal responsibility, the administration of justice is a provincial-territorial responsibility. 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. Obviously, that’s something that’s going to have to be done on a case-by-case, community-by-community, nation-by-nation basis. [8], The combination of these colonial processes created a complex history of trauma for Indigenous peoples, however, of all the contributing factors, the Residential School System has been identified as of primary significance. [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. Further, intergenerational trauma and gender inequality has resulted in Indigenous women experiencing higher rates of post-traumatic stress syndrome and addiction. [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? 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. 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. 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 … For the most part, sentencing in Canada is done very quickly, and no one in the court is provided with much information about the offender. Indigenous peoples in Canada are significantly overrepresented in the Canadian justice system. Indigenous Peoples & The Justice System. Intergenerational trauma, or transgenerational trauma, can occur when an individual or group experiences a significant trauma event. 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. Morning Star is deeply committed to advocating for indigenous sovereignty issues such as missing & murdered indigenous … 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. He is the author of Indigenous People and the Criminal Justice System: A Practitioner’s Handbook from Emond Publishing. 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. 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. Protests in the United States in the wake of George Floyd’s death were most directly about policing and justice in the United States. 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. The rural IPs living in South America … The primary reasons individuals have chosen to self-represent are financial inaccessibility of effective counsel and dissatisfaction with existing counsel. Here is a link on how to do it. 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. Indigenous people are the most over-represented population in Canada’s 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. Alberta also has a robust Gladue report process, although it is administered very differently. 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. 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. They make up approximately 30% of all incarcerated individuals in Canada despite being approximately 4% of the total population. Where Gladue reports are available, Crowns change their positions on sentencing, and jail is relied upon much less. [14], Once in front of a judge, Indigenous Peoples in Canada have historically received more and longer incarceration sentences. 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. Indigenous over-representation in prisons grew under Liberal and Conservative governments before and after the proliferation of mandatory minimum sentences. [2], Multiple colonial processes enacted on Indigenous Peoples, by the settler state, are the root causes of intergenerational trauma negatively affecting Indigenous Peoples today. Indigenous people are overrepresented in the Canadian criminal justice system as both victims/survivors Footnote 8 and accused/convicted persons. 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. 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. Gladue reports provide that information as well and thus offer real options for sentencing. 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. 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. A gathering place for posts about Indigenous Peoples and the justice system in Canada. 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. 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. Indigenous peoples are vastly overrepresented in the Canadian criminal justice system. 668 likes. You are welcome to republish this Policy Options article online or in print periodicals, under a Creative Commons/No Derivatives licence. [14], Defense counsel can be prohibitively expensive for individuals experiencing poverty. 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. [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. Change is not only possible, it is necessary and vital. 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. “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. While these issues affect Indigenous Peoples broadly, there are specific implications for Indigenous women and youth. [14], Increasingly, accused persons are choosing to self-represent as is their right. 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). 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. Additionally, abstinence conditions are difficult to comply with for individuals, without support, who experience substance abuse issues. There are no such courts in Quebec or Manitoba, one in Saskatchewan (a Cree-speaking circuit court) and two in Alberta. Innocence pleas require trial and bail must be granted to the accused to avoid pre-trial detention. Additionally, article 13.2 speaks to effective representation and participation by clarifying the requirement for language accessibility in all legal and official proceedings. In particular, the Royal Commission on Aboriginal Peoples, in its 1996 publication Bridging the Cultural Divide, recommended the establishment of independent justice systems on reserves. 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. [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. RJIP is dedicated to addressing the disproportionate impact of the criminal & juvenile justice systems on Indigenous peoples throughout northern California. by Jonathan Rudin. [12] Duty counsel is provided to ensure that every accused is afforded their Right to Counsel as articulated un Section 10(b) of the Canadian Charter of Rights and Freedoms. The government has promised to bring in legislation to put an end to mandatory minimums, but it has not yet done so. Initiatives such as Gladue reports and Indigenous persons courts make a real difference. The overrepresentation of Indigenous Peoples in the justice system reproduces false racist narratives of their criminality that inform both judges and the prosecution. This results in Indigenous people being over charged both in the volume and severity of offenses.[11]. Additionally, they are statistically more likely to experience violence. 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. 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 federal government provides very little support for the production of Gladue reports. 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 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. Originally published on Policy Options April 30, 2018. Be part of the Policy Options discussion, and send in your own submission. 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 … 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. 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. [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. 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. The review is built around a number of key arguments, including that centuries of colonization have left Indigenous peoples across … 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. Their experiences within the system are interwoven with issues of colonialism and discrimination. [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. It attributed the over-representation of Indigenous people to the impacts of colonialism, such as, but not limited to, the residential school system. [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. 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. 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. This article first appeared on Policy Options and is republished here under a Creative Commons license. 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. We know what works. [30], UNDRIP articles 5 and 40 both advocate for Indigenous Nations to revitalize and employ traditional legal structures for their Peoples. 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 … Indeed, the book is an important resource for lawyers who are committed not only to reconciliation but … Indigenous peoples in Canada are significantly overrepresented in the Canadian justice 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. 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. “For too long, Indigenous peoples have been over-represented in our criminal justice system,” said David Eby, Attorney General. "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. Editing the piece is not permitted, but you may publish excerpts. It remains high, and the conditions that led to the signing of the first AJA remain as valid today as they were in 2000. Some of these royal commissions and public inquiries recommended a form of independent justice in Indigenous communities. This conclusion was also reached by the Supreme Court of Canada on three occasions. 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. THE CANADIAN PRESS/Jason Franson. “The justice system criminalizes Native people but provides little to no resources when we ourselves are victims of violence.” ... Justice for Indigenous peoples outside of the confines of settler colonialism is a close reality. There is no government database of Indigenous deaths in Ontario's justice system. They make up approximately 30% of all incarcerated individuals in Canada despite being approximately 4% of the total population.[1]. The work of the Gladue writers is supported by Gladue caseworkers or aftercare workers, who work with offenders after they are sentenced. “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.” The Canadian government has framed this disproportionate victimization and criminalization as being an "Indian problem." It doesn’t have to be that way. [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. Legislative amendments are important, but they are not enough. There are only a few national data sources that provide criminal justice statistics disaggregated by Indigenous identity. These commissions and inquiries have all come to the same conclusion: that the criminal justice system in Canada is failing Indigenous people. Those options include release without conditions, undertaking with conditions, and recognizance. That is what it is on a daily basis for Indigenous people across the country. The overrepresentation of Indigenous Peoples in the justice system reproduces false racist narratives of their criminality that inform counsel. Mental health and addictions issues are also key factors in engagement with the criminal justice system. 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. “Our Indigenous […] [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. 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. This should not really come as a surprise. Indigenous people are overrepresented in Canada's criminal justice system as both victims and as people accused or convicted of crime. Accused persons have access to three types of representation in Canada, duty counsel, defense counsel, and self-representation. Indigenous youth represent 52% of all youth in care. This review provides a critical overview of Indigenous peoples’ interactions with criminal justice systems. 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. [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. [4][5] Additionally, Indigenous family units were disrupted through the Residential School System and the Sixties Scoop. 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. 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 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 … 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. Do you have something to say about the article you just read? Montreal, Quebec 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. 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. From my father’s incarceration to his advocating for abolishing the death penalty, my family has carried on the struggle of freedom and justice, for all peoples. If you would like to participate, please visit the project page, where you can join the discussion and see a list of open tasks. For example, the federal government could, as the Manitoba and Ontario reports suggested, eliminate the use of peremptory challenges. An independent justice system would recognize an important role for elders in the … The (in)justice system and Indigenous people, (This article has been translated into French.). 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. Legislative change is certainly useful in addressing the crisis facing the legal system with respect to Indigenous people. If trauma is experienced over multiple generations, the affects of intergeneration trauma can accumulate. 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. Joignez-vous aux débats d’Options politiques et soumettez-nous votre texte en suivant ces directives. “Challenges facing indigenous peoples in obtaining access to justice are not confined to criminal matters,”Kran said. These issues include over policing, ineffective representation, inadequate application of bail, and over sentencing, which are all indications of systemic racism. You are welcome to republish this Policy Options article online and in print periodicals. The section states that judges should look for alternatives to incarceration for all offenders, but with particular attention to the circumstances of Indigenous people. Approximately 1,000 Gladue reports are written annually in Ontario. 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. ``, `` Evidence - SECU ( 42-1 ) - no this disproportionate victimization and criminalization being... The Sixties Scoop worse for Indigenous women and youth offenses. [ 11 ] where Gladue reports available. 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