(Christie Belcourt, The Crow Taught Her. She Listened. via “Feature artist for April 2020: Christi Belcourt”, (19 April 2020), online: Alberta Native News <https://www.albertanativenews.com/feature-artist-for-april-2020-christi-belcourt/>.)
Tansi Nîtôtemtik,
Last week we discussed Canada’s response to TRC Call to Action #30, which addresses the over-incarceration of Indigenous people in Canada. Today we will evaluate Call to Action #38, which calls upon the “federal, provincial, territorial, and Indigenous governments to commit to eliminating the overrepresentation of Indigenous youth in custody over the next decade.”[2]
Since the Youth Criminal Justice Act (YCJA) came into force in 2003, overall youth incarceration has been significantly reduced.[3] However, the population of incarcerated Indigenous youth has not been decreasing at the same rate, and the proportion of the incarcerated youth population that is Indigenous has been steadily increasing.[4]
As of 2018, the proportion of incarcerated Indigenous youth had risen to 43%, up from 26% in 2008.[5] Both of these numbers are disgraceful given that Indigenous youth account for about 8% of the Canadian youth population.[6] But what else do these numbers tell us?
- If the overall incarcerated youth population is decreasing, it's because fewer non-Indigenous youth are being imprisoned.
- Indigenous youth offenders are still consistently incarcerated for unlawful conduct.
- Indigenous youth offenders are far more likely to be imprisoned than non-Indigenous youth offenders.
This over-incarceration of Indigenous youth has been linked to the similar overrepresentation in the child welfare system, and those affected have been dubbed “Crossover Kids”. A report analyzing this link was released this past April by the Manitoba Centre for Health Policy (MCHP).[7] In Manitoba, around 25% of children identify as Indigenous, yet Indigenous children and youth make up an unconscionable 90% of children in care and 80% of corrections admissions.[8] The report found a very high likelihood of overlap for Indigenous youth who were 24 times more likely to have experienced both systems, than non-Indigenous youth in the province.[9] In determining the reasons for this overlap, the report was careful to note that Indigeneity is NOT an indicator for criminality, but instead placed the blame squarely on Canada, citing:
- Colonial assimilation policies and practices, such as residential schools and the Sixties Scoop;
- Systemic racism in both Child and Family Services and the youth criminal justice system, and
- Structural violence and "chronic underfunding" of services to Indigenous communities which amount to a denial of basic human rights, or necessary resources.[10]
So what is Canada doing to reduce incarceration of Indigenous youth since the TRC report called them to action in 2015?
An amendment to the YCJA came into force in December of 2019, which will work to reduce youth over-incarceration by:
- encouraging the use of extrajudicial measures and judicial reviews as alternatives to laying charges for administration of justice offences;
- limit the use of custodial sentences for administration of justice offences;
- require that circumstances of Indigenous accused and of accused from vulnerable populations are considered at bail, and
- ensure that the conditions imposed on youth at the bail stage or at sentencing are only those necessary to address the offending behaviour.[11]
On November 18th, the Government of Canada announced $5 million in funding that will be spread across eight organizations who do preventative and restorative justice work with Indigenous youth.[12]
Whether these initiatives will have any impact on over-incarceration of Indigenous youth remains to be seen. Unfortunately, they do not address the systemic racism, systemic violence, over-representation in child welfare, and the chronic underfunding of Indigenous communities that are known factors in Indigenous youth offending. These new measures are the equivalent of putting a bandaid onto a severed artery. Without a sweeping reform in Canada’s approach to reconciliation, we are not likely to produce improved outcomes for Indigenous youth. Team ReconciliAction assigns Canada a Grade of ‘F’ on the response to Call to Action #38.
Did we miss anything Canada is doing to fix the over-incarceration of Indigenous youth? Tell us in the comments!
Until Next Time,
Team ReconciliAction
----- Want to hear more? Click here to subscribe! -------
1 Patricia Monture-Angus, Thunder in my soul: a Mohawk woman speaks (Halifax, N.S: Fernwood Pub, 1995) at 59.
2 Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 178.
3 Youth Criminal Justice Act, SC 2002, c 1 [YCJA]; Nicholas Bala, Peter J Carrington & Julian V Roberts, “Evaluating the Youth Criminal Justice Act after Five Years: A Qualified Success” (2009) 51:2 Can J Criminol & Crim Justice 131 at 139.
4 Nate Jackson, “Aboriginal Youth Overrepresentation in Canadian Correctional Services: Judicial and Non-Judicial Actors and Influence” (2015) Alta L Rev 927 at 928, 935.
5 Statistics Canada, Adult and youth correctional statistics in Canada, 2017/2018, by Jamil Malakieh, Catalogue no. 85-002-X (Ottawa: Statistics Canada, 2019) at 7.
6 Ibid.
7 Marni Brownell et al, The Overlap Between the Child Welfare and Youth Criminal Justice Systems: Documenting “Cross-Over Kids” in Manitoba (Winnipeg, MB: Manitoba Centre for Health Policy, 2020).
8 Nicholas Frew, “Overlap between involvement in CFS care, Manitoba youth justice system ‘hard to deny’: co-author of new study”, (3 June 2020), online: CBC News <https://www.cbc.ca/news/canada/manitoba/study-children-youth-cfs-youth-criminal-justice-manitoba-1.5596165>.
9 Brownell et al, supra note 7 at 76.
10 Ibid at xviii.
11 Canada, Department of Justice, Legislative background: an Act to Amend the Criminal Code, the Youth Criminal Justice Act and Other Acts and to Make Consequential Amendments to Other Acts (Bill C-75). (Ottawa: DOJ, 2018).
12 Department of Justice Canada, “Government of Canada supports restorative justice initiatives across the country, including those supporting Indigenous communities and youth”, (18 November 2020), online: gcnws <https://www.canada.ca/en/department-justice/news/2020/11/government-of-canada-supports-restorative-justice-initiatives-across-the-country-including-those-supporting-indigenous-communities-and-youth.html>.
