At every level of decision-making within Canada’s criminal justice system, ‘justice’ doesn’t generate equal outcomes for Indigenous people.
Canada’s policing, legal, judicial, jail, and prison systems—in tandem—have directly and indirectly reinforced the ever-growing numbers of Indigenous people in the Canadian prison system. In the last 10 years, though incarceration rates of non-Indigenous offenders have dropped, Indigenous incarcerations continued a steady pattern of growth. Overall crime rates have dropped during that same period, but the Indigenous incarceration rate is now 10-times higher than that of the general population.
Following a recent nine-month investigation of the criminal justice system, Maclean’s magazine refers to prisons as Canada’s “new residential schools.” Seventeen years ago, the Supreme Court of Canada termed the pattern of unbalanced incarceration as “a crisis in the criminal justice system”. This month, the formal Annual Report of the Office of the Correctional Investigator deemed the growth “tragic.”
Overrepresentation is endemic and has remained a noted phenomenon for over 50 years. The harsh and uneven reality of Aboriginal overrepresentation in jails, prison, arrests, and coutrooms is not reflected in the ideals of justice, equity, and fairness that the criminal justice system pursues. Yet, blame for its continuance does not lie solely on the criminal justice system.
LEGAL MEASURES AIMING TO ADDRESS THE OVER-INCARCERATION OF ABORIGINAL PEOPLES
Stephen Ford, an Indigenous criminal defense lawyer from Tyendinaga Territory, began his speech on Reconciliation in the criminal justice system at Queen’s University’s Faculty of Law on March 14 in a hushed tone, his gaze fixed on the tabletop before him. “I was here 12 years ago, speaking to this same topic”. He paused and placed his hands over his printed speech before looking up. “Twelve years ago, they were calling it a crisis. Nothing has changed. It has gotten worse. What can we possibly call it now?”
Ford then sped through a condensed history of law reform, alternative sentencing measures and considerations for Aboriginal offenders put in place in part to address and alleviate the over-representation of Indigenous peoples in the prison system. Such measures include section 718.2(e) of the Criminal Code, and the expectations set in R v Ipeelee and R v Gladue. These state, basically, that whenever an Aboriginal offender is before a court for sentencing or bail considerations, their Aboriginal history needs to be considered and an alternative to custody seriously contemplated.
“The criminal justice system, as it treats Aboriginal people, does so in a racist manner,” said Ford, after laying out the legal history and current structure of sentencing provisions for Aboriginal peoples—many of which attempt to ameliorate racialized outcomes but are unable to deliver the necessary systemic change.
Section 718.2(e) of the Canadian Criminal Code allows trial judges to consider sanctions other than imprisonment, usually through restorative justice measures. The Supreme Court of Canada clarified the expectation parameters of this section by providing sentencing guidelines in R v Gladue. Here, it sought to ensure the proper sentence ‘fit’ for Aboriginal offenders in every particular case, establishing that a ‘fit’ may be non-penal or an adjusted penal sentence. This acknowledges what the SCC considered the “fundamentally different” worldviews of Aboriginal peoples and non-Aboriginal people regarding justice processes and substance.
The SCC held in Gladue that sentencing judges must:
1) consider the unique systemic or background factors which may have played a part in bringing the particular offender before the courts; and
2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular [A]boriginal heritage or connection.
But Gladue was not enough to ensure a meaningful shift in the sentencing of Aboriginal offenders. The SCC heard another case, 13 years later: R v Ipeelee. Here—in 2012—the SCC reiterated that “[s]entencing judges, as frontline workers in the criminal justice system, are in the best position to reevaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination. Just sanctions are those that do not operate in a discriminatory manner.” Ipeelee notes that trial courts had been misapplying Gladue in various ways, such as by presuming the rule only applies to non-serious offenders. Ipeelee also points to a lack of understanding of the collectively “devastating” intergenerational experiences of Aboriginal peoples.
Queen’s Law Assistant Professor Lisa Kerr, who focuses her research on sentencing and imprisonment, aptly summarizes Ipeelee’s tone as the Court insisting: “Remember Gladue? We really meant it.” Kerr explains that, in the early years, some judges and legal scholars thought Gladue amounted to a “race-based sentencing discount.” The Ipeelee court corrects that impression, making clear that Gladue is simply a rule that guides the standard search for a proportionate sentence—one that reflects actual moral blameworthiness—for the specific circumstances of Aboriginal defendants.
These clear, definitive principles established and re-established by the SCC support the consideration of Aboriginal peoples at sentencing, yet, as Jonathan Rudin, Program Director at Aboriginal Legal Services of Toronto, states in his review of Gladue in the Supreme Court Law Review, “for the most part, the reality is that the sentencing of Aboriginal offenders in the post-Gladue world proceeds very much like it did pre-Gladue.”
In 2014, the Canadian Bar Association published incisive criticism of the lack of proper judicial consideration of the Gladue factors, regretting that too many justice agents remained uncommitted to genuinely adhering to what the SCC expected in Gladue and Ipeelee. Rudin continues, in the supporting report for the Ipperwash Inquiry: “If the lack of response to the Gladue decision is illustrative of nothing else, it shows that the criminal justice system if a very difficult entity to turn around, even in the face of dicta from the SCC.”
SENTENCING, JUDICIAL TREATMENT, AND GLADUE REPORTS
The reality is that sentencing measures, even when applied carefully and in good faith, have limited reach and effectiveness. Professor Kerr applauds the Gladue approach, noting: “the U.S. legal system, in contrast, is unwilling to differentiate between an ameliorative and a harmful distinction.” In the U.S., a legal rule for sentencing that is responsive to the history of slavery and Jim Crow would likely amount to a constitutionally impermissible racial differentiation. Canada should be proud, Kerr insists, of its ability to confront the meaning and effects of history in the search for proportionate sentences.
“In some ways, we should not be surprised that a sentencing rule does not deliver social justice.” – Professor Lisa Kerr
This ameliorative distinction has real and measurable impact: where Gladue reports—a tool to assist judges and Justices of the Peace in meaningfully considering Glade—were available at sentencing in BC for repeat offences, 76 per cent of offenders received shorter sentences with the report’s consideration than those who did not have one available.
Though Kerr agrees that there is a lot to be proud of in terms of Gladue’s application and its ameliorative reach when applied, she also warns against assuming that the “punishment end” of our legal system has any radical power to address Aboriginal overrepresentation in the criminal justice system. “It is not because lower courts don’t get Gladue… that is way too simple. We need to look at poverty, crime rates, disorder in communities, and the social reality of Canadian society as it treats Aboriginal people. In some ways, we should not be surprised that a sentencing rule does not deliver social justice.”
Kerr notes that the discriminatory outcomes for Aboriginal peoples reach farther than increased incarceration rates. She points to Correctional Services Canada (CSC), where decisions on security classification, institution location, ability to access programs, ability to access temporary escorted absences or leave, and other decisions that have impact on parole eligibility are made. CSC agrees that Gladue analysis should apply at any of these decision points. Yet, “Indigenous people experience discriminatory outcomes at every point,” Kerr says. These outcomes flow from misuse of information in administrative decision-making for Aboriginal inmates.
Howard Sapers, Canada’s Correctional Investigator, who leads the external oversight mechanism through the ombudsman role of the Office of the Correctional Investigator, has parallel concerns. At the point of intake to a correctional institution, an inmate’s risk level for security classification is assessed according to the Custody Rating Scale. An inmate’s rating will determine whether they will serve their sentence at a minimum, medium, or maximum-security prison. Their rating will dictate almost every administrative decision on their case throughout their sentence.
There is evidence, Sapers says, that information in Gladue reports, which is supposed to be used at sentencing with an ameliorative purpose, “is used against Aboriginal offenders in case management, once within the correctional system.”
“When you look at addictions, history of abuse, education, employment, trauma, and all those other things that speak to an individual’s circumstances as an Aboriginal offender that are included at Gladue consideration at the point of sentencing…it is to mitigate sentencing appropriately,” Sapers continues, “…but upon entering the correctional system, CSC looks at those things administratively as factors that elevate risk. The same information is utilized differently.”
OVER-REPRESENTATION ON THE GROUND: CORRECTIONAL SERVICES CANADA AND “RECONCILIATION”
Once in prison, an inmate faces many more barriers that impact their correctional plan, release, or parole eligibility; the discriminant impact of these decisions on Aboriginal inmates are tied directly to many of the features of heightened Aboriginal incarceration. Among incarcerated women, 36 per cent are Aboriginal. In the Prairie Provinces, this inordinate rate is even higher. At the Edmonton Institute for Women (EIFW), 60 per cent of inmates are Aboriginal. Three other institutions in the Prairie Region have Aboriginal inmate rates higher than 50 percent of their inmate population. CSC Officer F. Ray, who currently works at the EIFW, gave some insight into what over-incarceration of Aboriginal women means practically in a federal prison context.
According to CSC Officer Ray over-incarceration of Aboriginal peoples means that two forms of programming are necessary: so-called “mainstream” programming—including narcotics and substance abuse programming, anger and violence programming, education programming—and separate Aboriginal women’s programming—which spans from spirituality-based and cultural connective and educative programming that overlaps with “mainstream” offerings. The demand for these additional resources keeps staff and a team of 300 volunteers—at the EIFW alone—overstrained. Aboriginal programming can only be facilitated by those of Aboriginal descent. At the EIFW, Aboriginal support programs include smudging, connection to Elders, visits to sweat lodges, medicine-gathering, drum dances, and other traditions as part of an inmate’s sentencing plan. CSC Officer Ray states, “a lot of work has been done specifically at the EIFW, showing real efforts to recognize reconciliation within a federal institution, but the gap is wide when inmates are released and they have no support, or don’t get to access the needed support while here. Cycles of recidivism rest on the lack of support, not so clearly on the individuals. There are crimes linked to survival and social vulnerability that are clearly and unequivocally tied to the effects of residential schooling. This vulnerability simply does not affect other populations in Canada that have not undergone this within their own family and collective histories”. Worse, Ray recognizes that other facilities lack even the resources that EIFW taps into.
The utility and impact of the programming for inmates also depends on the officers supervising them, and on supervising decisions within individual case management. Currently, training in Aboriginal cultural competency and history is not mandated for officers in federal penal institutions. The respect for culturally-sensitive programming and its effectiveness falls to CSC officers passionate about self-education.
“All new officers should be trained and educated in Aboriginal history but they are not. There are people working in corrections who are not the right people, who never took a course in Aboriginal history, and couldn’t tell you about residential schooling, conditions of reserves, the Sixties Scoop, yet—they have contact daily with a population that is, in our case, often over 65 percent Aboriginal and whose experiences are directly impacted by these things. As an officer working with this population, you cannot be that way,” says Ray.
Sapers, the “watchdog” of CSC, echoes this sentiment. CSC purports to ensure that the Gladue factors are considered within any decision with potential to effect sentence management or program access. Yet, Sapers says that in actuality, any consideration of Gladue is done “very haphazardly.” Sapers, too, focused on training when elaborating. “Training is haphazard. You can ask program staff and officers within CSC whether or not Gladue applies within the administration and framework of corrections, and they will say no, or ‘I don’t know’.” Sapers said that though some institutions do incorporate Gladue in decision-making and training, and it is very much part of their framework to provide this training and expectation at the facility level, it is not systematic or audited by CSC as a federal institution.
“As an Aboriginal officer, I am tired. As a public servant, I am tired…of representing my people to other people that I work with. I get tired of the fight if officers are being racist.”
This contributes to the difficulty of institutional shift top-down. Sapers cited lack of representation of expertise and mandate on Aboriginal programming within senior administration of CSC as an institutional issue. Papers has recommended that a Deputy Commissioner for Aboriginal Corrections be added to CSC’s Executive Committee. This recommendation came after he looked at all the Executive Committee minutes from CSC for the five years prior. The minutes show the issue’s lack of prioritization. “Aboriginal corrections was specifically an agenda item twice…in five years,” Sapers continued, “when you are not paying attention to Aboriginal issues at the top, it permeates down throughout the organization.” To date, the correctional service has rejected the recommendation.
This top-down permeation has visible effects even at institutions where Aboriginal programming is taken seriously. The lack of education and training on Aboriginal history and issues impact the effectiveness of officers as individual caseworkers for inmates. Officer Ray states. “If you don’t know the history of Aboriginal people, and what pulls the need for reconciliation measures, you cannot assist individuals whose own personal history is intertwined with this collective history.” Another CSC officer at a federal institution, who agreed to speak only if the institution and their name remained unidentified, outlines the effects of this in their daily work. “As an Aboriginal officer, I am tired. As a public servant, I am tired…of representing my people to other people that I work with. I get tired of the fight if officers are being racist.” This officer alluded to blatant and severe disrespect to Aboriginal Elders contracted as spiritual advisors to support on-site programming offered by CSC, as well as disrespect of traditional sacred items and practices that are facilitated in on-site sweat lodges and programming. Sapers supports this, saying that despite CSC regulations surrounding the treatment of Elders at the same status as Chaplains, Elders come to him complaining of lack of respect and awareness of their roles as spiritual advisors.
“I believe there are likely very few places aside from federal correctional institutions where the systemic anguish surrounding missing and murdered Aboriginal women is so deeply felt in such a concentrated way.” – CSC Officer Ray
The factors that contribute to over-incarceration in the first place continue to compound difficulties for inmates serving a sentence. Deaths in Aboriginal communities and reserves are higher, due to many factors tied to the historic treatment of Aboriginal peoples. Deaths from ill-health, suicide, substance abuse, inter-generational violence, stemming from this historic and continued treatment, and extreme social discrimination affect inmates. CSC Officer Ray continues, “we have to facilitate visits to burials, or, eventually, gravesites. I believe there are likely very few places aside from federal correctional institutions where the systemic anguish surrounding missing and murdered Aboriginal women is so deeply felt in such a concentrated way. Here, we have women who are on waitlists to have approval to visit a burial or memorial of sisters, mothers, grandmothers, daughters, granddaughters, friends—and who can have two or more overlapping approval requests for accompanied visits pending.” One inmate just finished a two-year wait—which began when her son was murdered—to have approval granted to visit his gravesite. Such accompanied visits are part of healing programming for inmates mandated federally as part of sentence plans, and are dependent on CSC’s provisional budgets for the programming. A further consideration is the impact of isolated communities and reserves on the financial and physical feasibility of this programming; burials and accompanied visits to fly-in communities, or to other prairie provinces require the staff, the overtime, and the travel budget to support the programming. Separation of communities and family members from all across Canada, as Edmonton’s EIFW is the only women’s only federal prison with such extensive programmatic support for Aboriginal offenders, impacts the feasibility of attendance to such community memorials.
POLICING PRACTICES AND SOCIAL FACTORS CONTRIBUTE TO AND PERPETUATE OVER-INCARCERATION
Legal and correctional points of decision-making that do have ameliorative power over-incarceration of Aboriginal peoples can only do so much in the face of an endemic social issue.
Speaking to DJ Larkin, Housing Campaigner and lawyer at Pivot Legal Society in Vancouver’s Downtown Eastside, Aboriginal peoples’ disparate vulnerability to police interactions becomes a clear starting point for this over-representation. Outlining that those who must use public spaces because of homelessness—and adding that across Canada, the homeless population also reflects a disparately heightened Aboriginal population—Larkin states, “one of the first things to consider is that people who live and survive in public spaces are more likely to be targeted by police.” Policing in all cities, on average, is tied to the more vulnerable. Aboriginal people who lack housing are among the most.
Larkin’s work sees the impact of overrepresentation both at contact with and release from the criminal justice system. She cites the same lack of support and programming that CSC Officer Ray iterated. “I see individuals released directly back to the streets, without proper release programming or support. This increases cycles of poverty and homelessness.” Even at the level of bail and sentencing, she sees a direct connection to her work, stating she sees people lose housing or benefits because of sentencing decisions, “setting them back considerably.” Vulnerability increases; and here, vulnerability is intimately tied to discrepant treatment by each level of the criminal justice system.
Social, policing, judicial, or correctional, justice continues to mean something far from its intent for Aboriginal people within Canada’s criminal justice system.
Meagan Berlin (3L) is Production Manager of Juris Diction.
Cover illustration by Katharine Zisser