5 Criminal Justice System

Indigenous Over-Representation in the Criminal Justice System

Indigenous Peoples make up approximately four percent of Canada’s population (Office of the Correctional Investigator, 2013; Reitano, 2016, para. 12). The Government of Canada’s Office of the Correctional Investigator (2013) estimates that they are 10 times more likely than non-Indigenous people to be incarcerated in Canada’s federal prison system.

As of February 2013, the government estimates approximately 23 percent of federally incarcerated inmates are Indigenous; in real numbers, this corresponds to 3400 Indigenous inmates (Office of the Correctional Investigator, 2013; Reitano, 2016, para. 12). This statistic means that one in four offenders in a federal prison is First Nations, Inuit, or Métis. The ratio of Indigenous to non-Indigenous offenders climbs even higher across the prairie provinces of Manitoba, Saskatchewan, and Alberta, where Indigenous incarceration rates can average more than one in three.

As of 2005, Canada has seen a 43-percent increase in Indigenous offenders, compared to a 9-percent increase in non-Indigenous offenders (Office of the Correctional Investigator, 2013). These numbers are particularly alarming when one considers the percentage of the population Indigenous Peoples comprise in Canada.

Historical and Political Processes

The denial of social justice for Indigenous Peoples in Canada is rooted in colonization and the introduction of the Indian Act in 1876. With the imposition of the Act came many laws intended to control Indigenous Peoples, remove them from their lands, and limit their access to resources and their traditional way of life. For an example of one such law, see sidebar 1. Police were tasked with enforcing these laws and thereby participating in a system designed to treat Indigenous Peoples differently than non-Indigenous people (Hanson, 2009; Cummins & Steckley, 2003).

Gallery 1.10 Images taken of arrested Indigenous Peoples

Indigenous Peoples found themselves policed in all areas of their lives. Laws were imposed on gathering in groups of 10 or more, participating in ceremonies, attending pool halls, wearing traditional clothing, and moving on and off reserve, among many other facets of daily life (Cummins & Steckley, 2003; Hanson, 2009). Many of these provisions were in place for nearly 75 years; multiple generations were born into a world where their daily life was policed and their traditional ways banned (Royal Commission on Aboriginal Peoples, 1996; Cummins & Steckley, 2003).

There have been many amendments to the Indian Act since 1951, but the relationship between Indigenous Peoples and the Canadian justice system remains heavily strained.

Sidebar 1:

One law under section 94 of the Indian Act read as follows:

An Indian who (a) has intoxicants in his possession; (b) is intoxicated; or (c) makes or manufactures intoxicants off a reserve, is guilty of an offence and is liable on summary conviction to a fine of not less than 10 dollars and not more than fifty dollars or to imprisonment for a term not exceeding three months to both fine and imprisonment (As cited in Cummins and Steckley, 2003, p. 6).

This law was lifted in 1969, but by this time the relationship between Indigenous Peoples and police or RCMP was already greatly wounded.

Socio-Economic Factors

Howard Sapers, the former Correctional Investigator of Canada, believes the disparities in the treatment of Indigenous and non-Indigenous offenders begin with intake. Here they are exposed to a rating system called the custody rating scale (CRS) that, once calculated, classifies them as requiring a minimum, medium, or maximum security setting (Macdonald, 2016; Ontario Women’s Justice Network, 2014). The scale was originally designed for and tested on predominantly white male offenders; today, it is used as the rating system for all offenders entering the prison system (Ontario Women’s Justice Network, 2014). In September of 2016, Justice Michael Phelan ordered Correctional Service Canada (CSC) to refrain from using this rating system on Indigenous offenders; however, CSC immediately appealed and won by arguing that the system is reliable for cultural minorities and that it accounts for cultural bias (Macdonald, 2016). For more discussion on challenges with the CRS, see sidebar 2.

Financial circumstance contributes to the high incarceration rates of Indigenous Peoples in Canada. In 1991, the Manitoba Aboriginal Justice Inquiry found that many Indigenous Peoples reported being unable to make bail even if it was a few hundred dollars or less (Aboriginal Justice Implementation Commission, 1999; Cummins & Steckley, 2003; York, 1990). Even when Indigenous Peoples can afford bail, they may be denied it for socio-economic reasons, as the decision to hold an individual for pre-trial detention is typically based on whether or not they have regular employment and a fixed address, participate in educational programs, and connect with their community (Royal Commission on Aboriginal Peoples, 1996).

For discussion on efforts to help Indigenous Peoples in Manitoba meet bail demands, see sidebar 3. For statistics and discussion on Indigenous women and incarceration, see sidebar 4.

Sidebar 2: Custody Rating Scale

The federal justice system has been ignoring the damaging impacts of the custody rating scale (CRS) on Indigenous offenders. The CRS fails to consider the history, gender, and culture of the minority groups who are placed in corrections. Sapers argues it regularly leads to over-classification, which results in offenders being placed in higher security settings than necessary, exposing them to undue and unjust hardship (Macdonald, 2016; Ontario Women’s Justice Network, 2014). In an interview with Maclean’s magazine, in 2016, Sapers stated:

Part of the problem is that the marginalization experienced by some Indigenous peoples gets turned into “risk”: intergenerational trauma, alcoholism, a history of abuse, a lack of education, employment, a bank account or even hobbies make it more likely an inmate will be housed in maximum, and classed “high risk.” (Macdonald, 2016, ch. 4, para. 5)

Sidebar 3: Manitoba “Fine Option”

Aware of disparity facing Indigenous Peoples in the justice system, Manitoba instituted a “fine option” program where Indigenous Peoples could work the penalty off through various forms of community service, which nearly 37,000 people accessed (Steckley, 2003). Despite this service option, in 1987 one jail in Manitoba reported that over 60 percent of their Indigenous inmates were retained because they had failed to make bail or pay fines (Steckley, 2003). By 1992-93, Indigenous Peoples accounted for 75 percent of people incarcerated for fine default in Manitoba (Royal Commission on Aboriginal Peoples, 1996, p. 43). Many of these individuals were simply guilty of failure to pay a fine due to being unable to travel to make court date appearances or to reach the posted destination for community service because transportation was not regularly/readily available (Royal Commission on Aboriginal Peoples, 1996). This points directly to the devastating impacts of socio-economic marginality on Indigenous Peoples and their communities.

Sidebar 4: Indigenous Women and Incarceration

When considering the high rate of incarceration of Indigenous Peoples across Canada, one must acknowledge that women are even more over-represented than men (Macdonald, 2016; Reitano, 2016, para. 12). Since 2011, Indigenous women have been the most over-represented population group in federal correctional facilities, comprising 41 percent of all federally sentenced women (Office of the Correctional Investigator, 2013; Reitano, 2016). Today, in some penitentiaries in Canada, such as Manitoba’s Women’s Correctional Centre in Headingley, 9 of 10 inmates are Indigenous women (Office of the Correctional Investigator, 2013).

The intergenerational effects of assimilation, colonization, and discrimination are particularly damaging and present in the lives of Indigenous women. This reality ensures Indigenous women are more vulnerable to physical and sexual violence, poverty, and addiction than their male counterparts (Ontario Women’s Justice Network, 2014). A report from the Ontario Women’s Justice Network states:

Many Aboriginal women who enter the Canadian justice system as offenders enter it because of their experiences with such violence. Aboriginal women are more likely than non-Aboriginal women to report the most severe forms of spousal abuse. 54% of Aboriginal women report having been choked, beaten, threatened with a weapon like a gun or a knife, and sexually assaulted by their partner. Most women who are charged for a violent offense like murder were defending themselves or their children from partner-violence. (2014, para. 16)

Indigenous women, often in remote and isolated communities, are regularly ignored and dismissed by authorities when they place a request for police support or action in domestic violence and sexual assault cases (Canadian Association of Elizabeth Fry Societies, 2011; Macdonald, n.d.; Ontario Women’s Justice Network, 2014). Providing RCMP support in remote areas or within remote communities is not a priority for the federal government, which cites funding/budget limitations for not being able to provide regular support in areas where the population is small or remote (Macdonald, 2016; Royal Commission on Aboriginal Peoples, 1996, p. 38). The Elizabeth Fry Society argues that for this reason Indigenous women are increasingly forced to defend themselves against instances of physical violence and domestic abuse (Canadian Association of Elizabeth Fry Societies, 2011). The result is that more Indigenous women enter the justice system because they have felt the need to take “justice” into their own hands. Once placed in the system, Indigenous women are more likely to be housed in maximum security due to self-harm and suicide attempts fuelled by the terrible circumstances surrounding incarceration (Macdonald, 2016; Ontario Women’s Justice Network, 2014).

Cultural Conflict Through Institutional Racism

Artwork by Métis artist Dylan Miner.
In R. v. Stanley, George Stanley was found not guilty for the murder of Colten Boushie, a First Nations man he admitted to shooting in 2016. The jury who appeared to be all white has sparked nationwide gatherings in protest about how juries are selected in Canada.

The remaining factors to consider when exploring over-representation of Indigenous Peoples in Canada’s justice system relate to the impact of cultural conflict experienced through institutional racism. See sidebar 5 for definitions. Institutional racism embeds itself over time. Often, police, lawyers, judges, and juries find themselves agents of institutional racism. This is not necessarily because they choose to act in a racist way, but because the laws or policies of their institutions, which they are expected to uphold, are racist (Dickson-Gilmore & La Prairie, 2007; Cummins & Steckley, 2003).

The judicial system in Canada today is vastly different in scope and outcome than the justice system traditionally used by Indigenous communities (Cummins & Steckley, 2003; Royal Commission on Aboriginal Peoples, 1996).

Specifically, the application of uniform policy in the criminal justice system can, and does, have a discriminatory impact on Indigenous Peoples (Dickson-Gilmore & La Prairie, 2007). Police and judges are expected to apply standard rules to everyone. However, when one takes into consideration the historical, political, and socio-economic circumstances that uniquely affect Indigenous Peoples, the application of uniform policy is not always appropriate (Royal Commission on Aboriginal Peoples, 1996). For example, Indigenous Peoples experience inequity through the geographical location of courts and prisons. The Department of Justice favours larger cities and communities for courts and bail hearings. Indigenous Peoples from small, remote, or fly-in communities are not able to easily access these facilities. They run a higher risk of missing their appointments due to transportation challenges, which can in turn negatively affect how they are treated in court (Cummins & Steckley, 2003; Royal Commission on Aboriginal Peoples, 1996).

 

Interactive 1.18 My Aboriginal Education by Judge John Reilly, TEDxCalgary

At age 30, John Reilly was the youngest provincial court judge ever appointed in Alberta. He presided over courts in Canmore, Banff, and Cochrane, and it was in Cochrane that he had his eyes opened to the inequities faced by Indigenous Peoples in our justice system.

 

Sidebar 5: Institutional vs. Personal Racism

It is important to distinguish between institutional racism and racism at the personal level. Individual racism is bred through personal prejudice, power, and acts of discrimination (Steckley, 2003). While this form of racism can and does contribute to the negative experience of Indigenous minorities in the justice system, it alone is not what theorists believe is at the core of Indigenous over-representation. Institutional racism, which is much harder to identify and combat, has had a far greater effect on Indigenous incarceration rates in Canada (Fleras & Elliott, 1999).

The Oxford Dictionary defines institutional racism as “racial discrimination that has become established as normal behavior within a society or organization” (“Institutional racism,” 2017). Fleras and Elliott define institutional racism the following way: “Institutionalized racism involves an explicit set of discriminatory policies, priorities, and practices that openly deny and exclude minorities from full participation within the organization” (1999, p. 437). Fleras and Elliott further point out that institutional racism is so challenging because it embeds itself over time and is perpetuated through efforts to maintain equality for the majority, at the cost of equity for the minority (1999).

Restorative Justice: The Future

The imposition of a Euro-Canadian justice system on Indigenous Peoples in Canada exaggerates the frustrations already felt by individuals whose historical, political, socio-economic, and cultural experience has been one of genocide, subjugation, and intolerance. The current justice system in Canada lacks equity and functions in its present state as a tool of systemic discrimination towards minority populations. One solution is to use an alternative framework for approaching justice and crime. The concept of restorative justice only became popular in Canada in the early 1990s, but its philosophy and practice are grounded in the core principles of justice and healing found in traditional Indigenous communities. For more information on this practice, explore the section on restorative justice and learn how Gladue reports may encourage newfound trust, respect, and rehabilitation within the Canadian justice system.

Indigenous Gangs in Canada

Public Safety Canada defines Indigenous gangs separately from non-Indigenous gangs. The differing definitions stem from the belief that Indigenous gangs have a unique typology based on their homogenous nature and the unique social-economic circumstances shared by their members. Specialists studying gang activity believe most Indigenous groups fall into the street gang category (Public Safety Canada [PSC], 2016a). Most members are in their late teens and early twenties, making them younger than traditional gang members. The nature of these gangs varies widely: some have more fluid membership and others form memberships closer to traditional organized criminal organizations. Members are typically less educated and marginalized, and experience greater economic challenges than members of most criminal organizations (PSC, 2016a, Aboriginal gangs in Canada: An overview, para. 2). In addition, affiliation is often intergenerational, relying on violent entry rituals to protect membership (Totten, 2009).

Interactive 1.19 Eliana Paredes talks about youth diversion programs at Peacebuilders

Eliana Paredes, circle resource and youth diversion coordinator, talks about how Indigenous circles are the basis for youth diversion programs at Peacebuilders in Toronto, ON.

Aboriginal Youth Gangs

Aboriginal youth gangs also have a unique gang subcategory identification. Members are often in the 13-25 age range and define themselves by the adoption of a name, a gang colour, and tattoos. They are typically profit-driven and thus prone to more serious criminal activity and violence as a means of displaying their membership to rival gangs (Gordon, 2000). Typically they lack a strong organizational structure, and these groups regularly operate in smaller cells, sometimes with as few as three members. Status for members of these youth gangs is based on the ability to generate money and to participate in violent acts. Membership is typically fluid and un-organized (Gordon, 2000; Totten, 2009).

Categories aside, gang involvement for Indigenous Peoples is directly correlated to the following factors: marginalization, colonization, racism, dispossession (loss of land, loss of culture, loss of spirituality), the breakdown of kinship and family systems, and the breakdown of Indigenous forms of government (Dooley, Welsh, Floyd, Macdonald, & Fenning, 2005; Latimer & Foss, 2004; Totten, 2009). Acknowledgment of these factors helps us to better understand increasing levels of participation among Indigenous Peoples in gangs, especially youth under the age of 25.

Indigenous Gang Characteristics

The presence of Indigenous gangs across the country is not common knowledge for most Canadians. However, Criminal Intelligence Services Canada (CISC) and Public Safety Canada indicate the presence and impact of gangs both within and outside Canadian prisons have been steadily growing since the mid-1980s (CSC, 2008-09; PSC, 2016a). 

Indigenous gangs are the largest affiliated group in Canadian prisons serving federal sentences (CISC, 2014; Friesen & O’Neill, 2008). Correctional Services Canada estimates that one in six Indigenous male inmates and one in ten Indigenous female inmates have gang ties (CSC, 2008-09; PSC, 2016a).

Today Indigenous gang activity across Canada is characterized by street-level trafficking of drugs, involvement in prostitution, robberies, gun violence, weapons possession, break and entries, sex slave trade, illegal gaming, debt collection from criminal activity, assault, murder, tobacco fraud, vehicle theft, and home invasions (Dolha, 2003; Gordon, 2000).

Vulnerability and Gang Affiliation

Indigenous offenders in Canada tend to be younger than other inmates, often below the age of 25, and for this reason, are more likely to join a gang or be recruited. They are also more susceptible to acts of violence and crime once in the prison system (Stone, 2012; Nafekh, 2002). 

Indigenous women and girls are also highly susceptible to gang affiliation and recruitment, partially due to suppressive and sexist ideologies in both Indigenous and non-Indigenous communities.

Social challenges such as severe poverty, overcrowded housing, and poor living conditions enhance the likelihood that an Indigenous person will participate in a gang. In most circumstances, gang affiliation is seen as an opportunity to increase financial stability. Most gang affiliates believe that participation in a gang ensures an income well beyond what they could make in a minimum-wage position, if those positions are available to them at all (Dooley et al., 2005; Latimer & Foss, 2004; PSC, 2016a; Totten, 2009).

Interactive 1.20 VICE News: Warriors off the res: Aboriginal gangs in Winnipeg

Winnipeg is the capital of Manitoba, Canada — and for 16 of the past 33 years, it has also been the country’s murder capital. The prairie city is home to just under 800,000 people, about 10 percent of whom are Indigenous, meaning Winnipeg boasts the largest urban Indigenous population in Canada. Largely impoverished and facing continual discrimination, the community has given rise to violent street gangs. VICE News went to Winnipeg to spend time with gang members and find out why they’re linked to the majority of the city’s murders.

Restorative Approach to Indigenous Gangs

In 2016 in Edmonton, one of the densest gang regions in Canada, 40 organizations collaborated with Edmonton Police Services and Alberta Native Counselling Services to create a report titled The Community Solution to Gang Violence: A Collaborative Community Process and Evaluation Framework. The report acknowledged that gang members were actively learning about gang membership and operation within federal prisons. This admission led to the acknowledgment that to resolve gang activity, the City of Edmonton and its support services had to change their attitudes, relationships, social norms, policies, organizational structures, and laws related to Indigenous Peoples and incarceration (PSC, 2016b). A series of suggestions were outlined to combat specific issues the task force identified as contributing to gang involvement. The report is an ideal starting point for developing a restorative approach to addressing the complexity and healing of Indigenous gangs in Canada (PSC, 2016b). Taking this approach into account, it becomes helpful to turn to the chapter on restorative justice and its role in healing Indigenous offenders.

Interactive 1.21 CBC: The Current – “The Outside Circle”: Rethinking rehabilitation for aboriginal offenders

https://www.cbc.ca/radio/thecurrent/the-current-for-may-26-2015-1.3087566/the-outside-circle-rethinking-rehabilitation-for-aboriginal-offenders-1.3087673

Anna Maria Tremonti speaks with Patti LaBoucane-Benson about her role in the Warrior Program and her graphic novel The Outside Circle, which follows the character of Pete Carver on his healing journey after being a member of a gang.

 

References

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Correctional Service Canada. (2010). Section 2: The mandate, mission, and priorities of the Correctional Service of Canada. Speakers Binder. Retrieved from http://www.csc-scc.gc.ca/text/pblct/sb-go/pdf/2-eng.pdf

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Cummins, B. D., and Steckley, J. L. (2003). Aboriginal policing: A Canadian perspective. Toronto, ON: Pearson Education Canada Inc.

Dickson-Gilmore, J., & La Prairie, C. (2007). Will the circle be unbroken. Toronto, ON: University of Toronto Press.

Dolha, L. (2003, April 9). Aboriginal gangs in prairie provinces in “crisis proportions” [Archived news article]. First Nations Drum. Retrieved from http://www.firstnationsdrum.com/2003/04/aboriginal-gangs-in-prairie-provinces-in-crisis-proportions/

Dooley, S., Welsh, A., Floyd, R., Macdonald, S., & Fenning, T. (2005). Aboriginal youth justice: Emerging strategies for program development. Vancouver Police Department. Surrey, BC: Kwantlen University College.

Fleras, A., & Elliott, J. L. (1999). Unequal relations: An introduction to race, ethnic and aboriginal dynamics in Canada (3rd ed). Scarborough, ON: Prentice Hall Allyn and Bacon Canada.

Friesen, J. (2016). The ballad of Danny Wolf: Life of a modern outlaw. Toronto, ON: McClelland and Stewart.

Friesen, J., & O’Neill, K. (2008, May 9). Armed posses spreading violence across prairie communities. Globe and Mail. Retrieved from https://beta.theglobeandmail.com/news/national/armed-posses-spreading-violence-across-prairie-communities/article1055029/?ref=http://www.theglobeandmail.com&page=all

Gordon, R. M. (2000, January). Criminal business organization, street gangs and “wanna-be” groups: A Vancouver perspective. Canadian Journal of Criminology, 42(1), 39-60.

Hanson, E. (2009). The Indian Act. In Indigenous Foundations. Retrieved from http://indigenousfoundations.arts.ubc.ca/the_indian_act/#amendments

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Latimer, J., & Foss, L. C. (2004). A one-day snapshot of Aboriginal youth in custody across Canada, phase II [Report]. Prepared for the Department of Justice Canada. Retrieved from www.justice.gc.ca/eng/rp-pr/cj-jp/yj-jj/yj2-jj2/index.html

Macdonald, N. (2016, February). Canada’s prisons are the ‘new residential schools.’ Maclean’s. Retrieved from http://www.macleans.ca/news/canada/canadas-prisons-are-the-new-residential-schools/

Macdonald, N. (n.d). ‘It could have been me’ – Thirteen remarkable women share their own stories [Video files]. Maclean’s. Retrieved from http://site.macleans.ca/longform/almost-missing/index.html

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Media (in order of appearance)

Blaze, S. (2014). Supreme Court of Canada – Night[Photograph]. Retrieved from https://commons.wikimedia.org/wiki/File:Supreme_Court_of_Canada_-_2014_-_Night.jpeg

Buell, O. [photographer] (1885).
Group of nine taken in the square of the North-West Mounted Police Barracks, at Regina. [photograph]. MIKAN 3260668. Library and Archives Canada, Ottawa, ON. Retrieved from http://collectionscanada.gc.ca/ourl/res.php?url_ver=Z39.88-2004&url_tim=2018-06-27T17%3A17%3A21Z&url_ctx_fmt=info%3Aofi%2Ffmt%3Akev%3Amtx%3Actx&rft_dat=3260668&rfr_id=info%3Asid%2Fcollectionscanada.gc.ca%3Apam&lang=eng

Buell, O. [photographer] (1885, August). Group photograph of Metis and Native prisoners from the North West Rebellion. [photograph]. MIKAN 3194525. Library and Archives Canada, Ottawa, ON. Retrieved from http://collectionscanada.gc.ca/ourl/res.php?url_ver=Z39.88-2004&url_tim=2018-06-27T17%3A19%3A40Z&url_ctx_fmt=info%3Aofi%2Ffmt%3Akev%3Amtx%3Actx&rft_dat=3194525&rfr_id=info%3Asid%2Fcollectionscanada.gc.ca%3Apam&lang=eng

Riel Rebellion prisoners at Stony Mountain Penitentiary, Manitoba. [photograph]. (1886). Image NA-20-27. Glenbow Archives, Calgary, AB. Retrieved from http://www.glenbow.org/index.cfm

Big Bear, left, and Poundmaker, Cree Chiefs. [photograph]. (1886). Image NA-1315-18. Glenbow Archives, Calgary, AB. Retrieved from http://www.glenbow.org/index.cfm

North-West Mounted Police, Fort Calgary.  [photograph]. (1878). MIKAN 3192790. Library and Archives Canada, Ottawa, ON. Retrieved from http://collectionscanada.gc.ca/ourl/res.php?url_ver=Z39.88-2004&url_tim=2018-06-27T17%3A24%3A45Z&url_ctx_fmt=info%3Aofi%2Ffmt%3Akev%3Amtx%3Actx&rft_dat=3192790&rfr_id=info%3Asid%2Fcollectionscanada.gc.ca%3Apam&lang=eng

TEDx. (2011, July 5). TEDx Calgary – Judge John Reilly [Video File]. Retrieved from https://youtu.be/lq3a5CgBgqE

Miner, D. (artist). (n.d.) Colonial Courts ≠ Justice – Justice for Colten [artwork]. Retrieved from http://www.wiisaakodewinini.com/artworks/

Centennial College. (2018). Eliana Paredes, Circle Resource and Youth Diversion Coordinator, Peacebuilders. [Video file]. Retrieved from https://youtu.be/EMeEPSkwsNE

[Vice News]. (2014, July 10). Warriors Off The Res: Aboriginal Gangs in Winnipeg. Retrieved from https://www.youtube.com/watch?v=TlUcsKSbpNI

 

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