Change is not only possible, it is necessary and vital. And even if it does introduce such legislation, there is no guarantee that it will be passed. Reasons for the vast overrepresentation of Indigenous offenders and victims in the criminal justice system are discussed in this report. [15] The risks associated with self-representation is laypersons are not educated in the law and the judicial process so they can become overwhelmed to their own detriment. He is the author of Indigenous People and the Criminal Justice System: A Practitioner’s Handbook from Emond Publishing. As with duty counsel, these factors can be aggravated in the presence of bias. “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. This review provides a critical overview of Indigenous peoples’ interactions with criminal justice systems. Intergenerational trauma, or transgenerational trauma, can occur when an individual or group experiences a significant trauma event. These commissions and inquiries have all come to the same conclusion: that the criminal justice system in Canada is failing Indigenous people. Additionally, they are statistically more likely to experience violence. This should not really come as a surprise. C This article has been rated as C-Class … 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 are the most over-represented population in Canada’s criminal justice system. by Jonathan Rudin. The primary reasons individuals have chosen to self-represent are financial inaccessibility of effective counsel and dissatisfaction with existing counsel. Be part of the Policy Options discussion, and send in your own submission. If we are serious about reconciliation, we have to recognize that the justice system has been a place of injustice for Indigenous people. Judges and lawyers are not always familiar with noncustodial options, particularly those offered by Indigenous organizations. There are 13 Gladue or Indigenous persons courts at the provincial court level in Ontario and five in British Columbia. And we need to have the humility to recognize that our criminal justice system has failed Indigenous people both as offenders and as victims, and to have the humility to say to Indigenous communities: Maybe you can do better with your own Indigenous justice systems. 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. Some of these royal commissions and public inquiries recommended a form of independent justice in Indigenous communities. The rural IPs living in South America … Mental health and addictions issues are also key factors in engagement with the criminal justice system. 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. Section 718.2(e) is an example of legislation that has made a difference. May 2019. Originally published on Policy Options April 30, 2018. “Challenges facing indigenous peoples in obtaining access to justice are not confined to criminal matters,”Kran said. 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. 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. Understanding the Overrepresentation of Indigenous People in the Criminal Justice System. [18], Poverty, precarious employment and acting as a single caregiver are incentivizing factors to plead guilty. Montreal, Quebec 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. And while Canada now imprisons fewer and fewer young people, more and more of those young people are Indigenous. [23], Indigenous youth make up 43% of youths in custody despite being 8% of Canada’s youth population. [4][5] Additionally, Indigenous family units were disrupted through the Residential School System and the Sixties Scoop. [21] This is despite the fact that they comprise 4.9% of the female population of Canada. It doesn’t have to be that way. Initiatives such as Gladue reports and Indigenous persons courts make a real difference. 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. You are welcome to republish this Policy Options article online and in print periodicals. The larger the group that shares the experience, or length of time the experience is sustained can amplify the trauma experienced. [14], Defense counsel can be prohibitively expensive for individuals experiencing poverty. The work of the Gladue writers is supported by Gladue caseworkers or aftercare workers, who work with offenders after they are sentenced. Indigenous peoples in Canada are significantly overrepresented in the Canadian justice system. An independent justice system would recognize an important role for elders in the … 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. Indigenous peoples in Canada are significantly overrepresented in the Canadian justice system. 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. It remains high, and the conditions that led to the signing of the first AJA remain as valid today as they were in 2000. The differences among provinces and territories in the way they have responded to Indigenous justice concerns are quite stark and revealing. [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. “For too long, Indigenous peoples have been over-represented in our criminal justice system,” said David Eby, Attorney General. 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. “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.” 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. 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. Legislative change is certainly useful in addressing the crisis facing the legal system with respect to Indigenous people. There are no such courts in Quebec or Manitoba, one in Saskatchewan (a Cree-speaking circuit court) and two in Alberta. 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 The review is built around a number of key arguments, including that centuries of colonization have left Indigenous peoples across … We ask that you follow these guidelines. 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. [22], Indigenous women experience higher rates of poverty, precarious employment, and are statistically more likely to be single care givers. [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. ", "Evidence - SECU (42-1) - No. 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. 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. 668 likes. This article provides an analysis of various explanations of the over-represenation of Indigenous people in the criminal justice system. Additionally, article 13.2 speaks to effective representation and participation by clarifying the requirement for language accessibility in all legal and official proceedings. Where Gladue reports are available, Crowns change their positions on sentencing, and jail is relied upon much less. Indigenous Peoples & The Justice System. For Indigenous people, the case was simply another milestone on the long and well-travelled road of injustice. For example, in Ontario, the province and Legal Aid Ontario fund the production of what are referred to as Gladue reports. 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. 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. Additionally, cultural and language barriers may exist between Indigenous persons and their Duty Counsel further impacting their access to effective representation. 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. That is what it was for the family of Colten Boushie. This conclusion was also reached by the Supreme Court of Canada on three occasions. 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. If you would like to participate, please visit the project page, where you can join the discussion and see a list of open tasks. 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. [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. If trauma is experienced over multiple generations, the affects of intergeneration trauma can accumulate. For example, the federal government could, as the Manitoba and Ontario reports suggested, eliminate the use of peremptory challenges. 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. I have described some of them in this article. Jonathan Rudin is the program director at Aboriginal Legal Services. 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. "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. [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. 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. This results in Indigenous people being over charged both in the volume and severity of offenses.[11]. Obviously, that’s something that’s going to have to be done on a case-by-case, community-by-community, nation-by-nation basis. Accused persons can seek the services of legal aid for defense counsel however, it can be difficult to secure effective counsel. 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. Morning Star is deeply committed to advocating for indigenous sovereignty issues such as missing & murdered indigenous … Here is a link on how to do it. The numbers are worse for Indigenous women, who make up over one-third of all women in jail. There are only a few national data sources that provide criminal justice statistics disaggregated by Indigenous identity. Research and Statistics Division. Indigenous people are overrepresented in Canada's criminal justice system as both victims and as people accused or convicted of crime. 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 … [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? The overrepresentation of Indigenous Peoples in the justice system reproduces false racist narratives of their criminality that inform counsel. 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. Photo: A chant is performed during a rally in response to Gerald Stanley’s acquittal in the shooting death of Colton Boushie in Edmonton, Alberta, on February 10, 2018. [17], 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. It’s that the will to fix it is lacking. Indigenous Peoples and the Justice System. These issues include over policing, ineffective representation, inadequate application of bail, and over sentencing, which are all indications of systemic racism. Indigenous youth represent 52% of all youth in care. Previous Next. 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. 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. 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. 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. [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. [14], Once in front of a judge, Indigenous Peoples in Canada have historically received more and longer incarceration sentences. The section states that judges should look for alternatives to incarceration for all offenders, but with particular attention to the circumstances of Indigenous people. 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. Gladue reports are also available in Nova Scotia, Prince Edward Island, Quebec and British Columbia, and will soon be in Yukon. Those options include release without conditions, undertaking with conditions, and recognizance. We know what works. Accused persons have access to three types of representation in Canada, duty counsel, defense counsel, and self-representation. 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. 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. 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 … 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 “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. 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. 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. 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 … 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. 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 … 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. This is … 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. A gathering place for posts about Indigenous Peoples and the justice system in Canada. These Calls to Action recognize that FASD is a health issue that is negatively affecting Indigenous people. Innocence pleas require trial and bail must be granted to the accused to avoid pre-trial detention. Ivan Zinger, the Correctional Investigator of Canada, issued his statement and a challenge earlier this month, reporting the proportion of Indigenous people behind bars has now surpassed 30 per cent. Further, intergenerational trauma and gender inequality has resulted in Indigenous women experiencing higher rates of post-traumatic stress syndrome and addiction. It’s not that the problem can’t be fixed. 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. They make up approximately 30% of all incarcerated individuals in Canada despite being approximately 4% of the total population.[1]. 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. Indigenous peoples are vastly overrepresented in the Canadian criminal justice system. [14], Increasingly, accused persons are choosing to self-represent as is their right. “Our Indigenous […] RJIP is dedicated to addressing the disproportionate impact of the criminal & juvenile justice systems on Indigenous peoples throughout northern California. [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. “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. The (in)justice system and Indigenous people, (This article has been translated into French.). Legislative change is part of the process. Legislative amendments are important, but they are not enough. What is needed is a commitment from the federal and provincial governments to be a part of that change. “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 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. 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. More is necessary. Indigenous people are overrepresented in the Canadian criminal justice system as both victims/survivors Footnote 8 and accused/convicted persons. That is what it is on a daily basis for Indigenous people across the country. 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. [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. Be granted to the same conclusion: that the justice system, ” said David Eby, General! Link on how to do it School system and Indigenous people and the criminal to. Has not yet done so t have to be that way justice is a provincial-territorial responsibility a form independent... 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