This due to both its multigenerational nature and the age at which individuals experienced the trauma associated with residential schooling. Indigenous youth represent 52% of all youth in care. 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. Obviously, that’s something that’s going to have to be done on a case-by-case, community-by-community, nation-by-nation basis. Jonathan Rudin is the program director at Aboriginal Legal Services. These commissions and inquiries have all come to the same conclusion: that the criminal justice system in Canada is failing Indigenous people. 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). Those options include release without conditions, undertaking with conditions, and recognizance. , 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. It’s not that the problem can’t be fixed. For Indigenous people, the case was simply another milestone on the long and well-travelled road of injustice. 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.  Additionally, Indigenous family units were disrupted through the Residential School System and the Sixties Scoop. I have described some of them in this article. , Indigenous women experience higher rates of poverty, precarious employment, and are statistically more likely to be single care givers. 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 … The overrepresentation of Indigenous Peoples in the justice system reproduces false racist narratives of their criminality that inform both judges and the prosecution. We know what works. 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.  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. , 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? 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 … Editing the piece is not permitted, but you may publish excerpts. The (in)justice system and Indigenous people, (This article has been translated into French.). The Supreme Court in Gladue said judges had a role in over-representation and they should ensure that they had the information necessary to allow them to meaningfully address this provision of the code. “Our Indigenous […] Morning Star is deeply committed to advocating for indigenous sovereignty issues such as missing & murdered indigenous … , 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. 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. Indigenous people are overrepresented in the Canadian criminal justice system as both victims/survivors Footnote 8 and accused/convicted persons. There are no such courts in Quebec or Manitoba, one in Saskatchewan (a Cree-speaking circuit court) and two in Alberta. You are welcome to republish this Policy Options article online or in print periodicals, under a Creative Commons/No Derivatives licence. “Challenges facing indigenous peoples in obtaining access to justice are not confined to criminal matters,”Kran said. 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. This review provides a critical overview of Indigenous peoples’ interactions with criminal justice systems. “For too long, Indigenous peoples have been over-represented in our criminal justice system,” said David Eby, Attorney General. 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. Initiatives such as Gladue reports and Indigenous persons courts make a real difference. 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. The numbers are worse for Indigenous women, who make up over one-third of all women in jail. 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. “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. Approximately 1,000 Gladue reports are written annually in Ontario. 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. 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. 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. Accused persons have access to three types of representation in Canada, duty counsel, defense counsel, and self-representation. While these issues affect Indigenous Peoples broadly, there are specific implications for Indigenous women and youth. Terms & Conditions |
We are continuing to discover and develop new initiatives. 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. 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. Innocence pleas require trial and bail must be granted to the accused to avoid pre-trial detention. Indigenous people are the most over-represented population in Canada’s criminal justice system. Protests in the United States in the wake of George Floyd’s death were most directly about policing and justice in the United States. More is necessary. , Youth who spend time in care are statistically more likely to have engagements with the criminal justice system , The Canadian Department of Justice has formally recognized the prevalence of systemic discrimination within the criminal justice system. Indigenous Peoples and the Justice System. As with duty counsel, these factors can be aggravated in the presence of bias. It doesn’t have to be that way. And while Canada now imprisons fewer and fewer young people, more and more of those young people are Indigenous. These include dispossession of Indigenous lands through the Numbered Treaties in which Indigenous Peoples received limited Reserve land and restriction of personal freedoms through the enaction of the Pass System.  Further, specific Indian Act legislation was passed that sought to erase Indigenous culture, language, and disrupt gender equality within Indigenous communities. 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. 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. RJIP is dedicated to addressing the disproportionate impact of the criminal & juvenile justice systems on Indigenous peoples throughout northern California. 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. 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. This conclusion was also reached by the Supreme Court of Canada on three occasions. 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. 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. 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. Do you have something to say about the article you just read? 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. , 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 , 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. , UNDRIP articles 5 and 40 both advocate for Indigenous Nations to revitalize and employ traditional legal structures for their Peoples. The larger the group that shares the experience, or length of time the experience is sustained can amplify the trauma experienced. What is needed is a commitment from the federal and provincial governments to be a part of that change. “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. 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. 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. 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. Please attribute the author(s) and mention that the article was originally published by Policy Options magazine. The federal government provides very little support for the production of Gladue reports.  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. If you would like to participate, please visit the project page, where you can join the discussion and see a list of open tasks. , Indigenous women comprise 42% of women in custody.  Ultimately, the settler state endeavored to assimilate and enfranchise all Indigenous Peoples into dominant society. Additionally, they are statistically more likely to experience violence. May 2019. , 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. , Defense counsel can be prohibitively expensive for individuals experiencing poverty. Here is a link on how to do it. 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. Access to justice for people living in rural areas is highly limited. Additionally, abstinence conditions are difficult to comply with for individuals, without support, who experience substance abuse issues. 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. There is no government database of Indigenous deaths in Ontario's justice system. This article
first appeared on Policy Options
and is republished here under a Creative Commons license. ", "Evidence - SECU (42-1) - No. , 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. The federal government could also amend the Criminal Code to eliminate mandatory minimum sentences, which flourished under the Stephen Harper government. This article is part of the Widening the Lens on Criminal Justice Reform special feature. FASD service delivery in terms of diagnosis, prevention and intervention is lacking and has led to inappropriate treatment within the criminal justice system. He is the author of Indigenous People and the Criminal Justice System: A Practitioner’s Handbook from Emond Publishing. 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. The work of the Gladue writers is supported by Gladue caseworkers or aftercare workers, who work with offenders after they are sentenced. 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. There are 13 Gladue or Indigenous persons courts at the provincial court level in Ontario and five in British Columbia. Previous Next. 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