Indigenous Peoples & The Justice System. Their experiences within the system are interwoven with issues of colonialism and discrimination. 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. Intergenerational trauma, or transgenerational trauma, can occur when an individual or group experiences a significant trauma event. 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. It’s not that the problem can’t be fixed. That is what it is on a daily basis for Indigenous people across the country. Constitutionally, while criminal law is a federal responsibility, the administration of justice is a provincial-territorial responsibility. Obviously, that’s something that’s going to have to be done on a case-by-case, community-by-community, nation-by-nation basis. Because these initiatives are at the provincial or territorial level, the federal government has seen little need to become involved, but these initiatives require funding to thrive. , 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. 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. Indeed, the book is an important resource for lawyers who are committed not only to reconciliation but … Be part of the Policy Options discussion, and send in your own submission. 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 … I have described some of them in this article. 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. 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 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. Section 718.2(e) is an example of legislation that has made a difference. 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. Legislative amendments are important, but they are not enough. Change is not only possible, it is necessary and vital. 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. 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. The (in)justice system and Indigenous people, (This article has been translated into French.). There are no such courts in Quebec or Manitoba, one in Saskatchewan (a Cree-speaking circuit court) and two in Alberta. 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. “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.” These Calls to Action recognize that FASD is a health issue that is negatively affecting Indigenous people. As with duty counsel, these factors can be aggravated in the presence of bias. They make up approximately 30% of all incarcerated individuals in Canada despite being approximately 4% of the total population. 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 … There are 13 Gladue or Indigenous persons courts at the provincial court level in Ontario and five in British Columbia. “For too long, Indigenous peoples have been over-represented in our criminal justice system,” said David Eby, Attorney General. The larger the group that shares the experience, or length of time the experience is sustained can amplify the trauma experienced. Please attribute the author(s) and mention that the article was originally published by Policy Options magazine. An independent justice system would recognize an important role for elders in the … Initiatives such as Gladue reports and Indigenous persons courts make a real difference. , 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. , Poverty, precarious employment and acting as a single caregiver are incentivizing factors to plead guilty. The review is built around a number of key arguments, including that centuries of colonization have left Indigenous peoples across … Innocence pleas require trial and bail must be granted to the accused to avoid pre-trial detention. For example, the federal government could, as the Manitoba and Ontario reports suggested, eliminate the use of peremptory challenges. Indigenous people are the most over-represented population in Canada’s criminal justice system. 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. 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.  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. You are welcome to republish this Policy Options article online and in print periodicals. The federal government could also amend the Criminal Code to eliminate mandatory minimum sentences, which flourished under the Stephen Harper government. Originally published on Policy Options April 30, 2018. 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. If you would like to participate, please visit the project page, where you can join the discussion and see a list of open tasks. While these issues affect Indigenous Peoples broadly, there are specific implications for Indigenous women and youth. There are only a few national data sources that provide criminal justice statistics disaggregated by Indigenous identity. Do you have something to say about the article you just read? Judges and lawyers are not always familiar with noncustodial options, particularly those offered by Indigenous organizations. Additionally, abstinence conditions are difficult to comply with for individuals, without support, who experience substance abuse issues. 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. , These factors all contribute to engagements with the criminal justice system, Police have wide discretionary powers over surveillance and intervention of individuals in public. Access to justice for people living in rural areas is highly limited. , Indigenous youth make up 43% of youths in custody despite being 8% of Canada’s youth population. 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. 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, in Ontario, the province and Legal Aid Ontario fund the production of what are referred to as Gladue reports. RJIP is dedicated to addressing the disproportionate impact of the criminal & juvenile justice systems on Indigenous peoples throughout northern California. , Indigenous women experience higher rates of poverty, precarious employment, and are statistically more likely to be single care givers. They make up approximately 30% of all incarcerated individuals in Canada despite being approximately 4% of the total population.. Since 1989, 13 provincial and federal inquiries, commissions and studies have examined the issue of Indigenous peoples and the justice system in Canada. 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. , 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. Joignez-vous aux débats d’Options politiques et soumettez-nous votre texte en suivant ces directives. This results in Indigenous people being over charged both in the volume and severity of offenses.. This article first appeared on Policy Options and is republished here under a Creative Commons license. 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. What is needed is a commitment from the federal and provincial governments to be a part of that change. 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. This is … Those options include release without conditions, undertaking with conditions, and recognizance. Indigenous peoples in Canada are significantly overrepresented in the Canadian justice system. 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. Indigenous people are overrepresented in Canada's criminal justice system as both victims and as people accused or convicted of crime. These commissions and inquiries have all come to the same conclusion: that the criminal justice system in Canada is failing Indigenous people. If trauma is experienced over multiple generations, the affects of intergeneration trauma can accumulate. , 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. , Multiple colonial processes enacted on Indigenous Peoples, by the settler state, are the root causes of intergenerational trauma negatively affecting Indigenous Peoples today. Legislative change is certainly useful in addressing the crisis facing the legal system with respect to Indigenous people. 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. And that will require not only political will and legislative amendments, but also funding. , 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. The Canadian government has framed this disproportionate victimization and criminalization as being an "Indian problem." Alberta also has a robust Gladue report process, although it is administered very differently. Reasons for the vast overrepresentation of Indigenous offenders and victims in the criminal justice system are discussed in this report. 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. Terms & Conditions | Editing the piece is not permitted, but you may publish excerpts. Gladue reports provide that information as well and thus offer real options for sentencing. The rural IPs living in South America … The differences among provinces and territories in the way they have responded to Indigenous justice concerns are quite stark and revealing. Protests in the United States in the wake of George Floyd’s death were most directly about policing and justice in the United States. , UNDRIP articles 5 and 40 both advocate for Indigenous Nations to revitalize and employ traditional legal structures for their Peoples. by Jonathan Rudin. , 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. 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 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 primary reasons individuals have chosen to self-represent are financial inaccessibility of effective counsel and dissatisfaction with existing counsel.  Further, specific Indian Act legislation was passed that sought to erase Indigenous culture, language, and disrupt gender equality within Indigenous communities.  Additionally, Indigenous family units were disrupted through the Residential School System and the Sixties Scoop. For Indigenous people, the case was simply another milestone on the long and well-travelled road of injustice. The government has promised to bring in legislation to put an end to mandatory minimums, but it has not yet done so. There is no government database of Indigenous deaths in Ontario's justice system. , 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 provides very little support for the production of Gladue reports. , 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. 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. 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. This article provides an analysis of various explanations of the over-represenation of Indigenous people in the criminal justice system. 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. There are also many examples of creative responses that have led to a positive engagement of Indigenous people with the current justice system. THE CANADIAN PRESS/Jason Franson. Indigenous youth represent 52% of all youth in care. It doesn’t have to be that way. 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. , Defense counsel can be prohibitively expensive for individuals experiencing poverty. That is what it was for the family of Colten Boushie.  Ultimately, the settler state endeavored to assimilate and enfranchise all Indigenous Peoples into dominant society. 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. A gathering place for posts about Indigenous Peoples and the justice system in Canada. Accused persons have access to three types of representation in Canada, duty counsel, defense counsel, and self-representation. 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. Some of these royal commissions and public inquiries recommended a form of independent justice in Indigenous communities. The overrepresentation of Indigenous Peoples in the justice system reproduces false racist narratives of their criminality that inform both judges and the prosecution. 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. , 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. , Once in front of a judge, Indigenous Peoples in Canada have historically received more and longer incarceration sentences. 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. Here is a link on how to do it. 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. 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.  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. It remains high, and the conditions that led to the signing of the first AJA remain as valid today as they were in 2000. If we are serious about reconciliation, we have to recognize that the justice system has been a place of injustice for Indigenous people. Legislative change is part of the process. Mental health and addictions issues are also key factors in engagement with the criminal justice system. “Challenges facing indigenous peoples in obtaining access to justice are not confined to criminal matters,”Kran said. 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. 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. 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. 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