Tansi Nîtôtemtik,
In R v. Gladue, the Supreme Court of Canada referred to the overrepresentation of Indigenous people in custody as “a crisis in the Canadian criminal justice system,” and Canada’s prisons as the “contemporary equivalent” of what residential schools were to previous generations.[1] Twenty-one years later, Indigenous people continue to be overrepresented in custody. What’s worse, this overrepresentation has increased since the Supreme Court decided Gladue in 1999.[2]
This is not the first time we have examined the overrepresentation of Indigenous people in custody. In our October 26 post, we reflected on the BC First Nations Justice Strategy as presented at the 2020 IBA Conference by Chief Doug White. Chief White presented staggering data on the disproportionate representation of Indigenous people in Canada’s incarcerated population. A main takeaway from Chief White’s presentation was that Indigenous people in Canada are over-policed and under-protected. Today, will examine how the TRC Calls to Action address overrepresentation, and assign Canada a grade on its progress.
Call to Action 30 states:
- We call upon federal, provincial, and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade, and to issue detailed annual reports that monitor and evaluate progress in doing so.
From our previous post, we know that since 2017, BC has taken steps to improve access to Gladue reports at sentencing and bail hearings, and to begin establishing a network of 15 Indigenous justice centers. This is great progress, and we are looking forward to watching the BC strategy as it unfolds.
Outside of BC, how is Canada doing?
On its website, the Government of Canada correctly asserts that “[t]he work being undertaken in response to many other calls to action, such as those relating to housing, child welfare, health services and Fetal Alcohol Spectrum Disorder, will further contribute toward achieving Call to Action 30.”[3] However, these are not the only causes of overrepresentation of Indigenous people in incarceration.[4] Other causes include:
- Inappropriate guilty pleas,[5]
- Bail denial,[6]
- Non-compliance with court conditions,[7] and
- Lack of culturally relevant treatment.[8]
Some initiatives to reduce these occurrences include amendments to the Criminal Code (Bill C-75), the Indigenous Justice Program, and the Indigenous Courtwork Program.
Criminal Code Amendments
Bill C-75 may have a meaningful impact on reducing the number of Indigenous people in custody. Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts, received royal assent on June 21, 2019.[9] The Bill requires that circumstances of Indigenous accused are considered at bail and at a “judicial referral hearing” following the commission of an Administration of Justice Offence (AOJO).[10] AOJOs, such as failing to comply with bail conditions, have contributed to the overrepresentation of Indigenous persons in the criminal justice system.[11] According to the Government of Canada, four out of every ten cases in adult criminal courts include at least one AOJO, which results in a jail sentence. Bill C-75 changes how certain AOJOs are managed when they do not involve harm to victims. In such instances, police may direct AOJOs to a judicial referral hearing instead of laying charges. The judge or justice reviewing the conditions of release can decide to “take no action, release the accused on new conditions or detain the accused, depending on the particular circumstances of the accused.”[12] We look forward to seeing if these amendments decrease the representation of Indigenous offenders in custody.
Indigenous Justice Program
The Indigenous Justice Program currently serves over 650 communities, and supports Indigenous community-based justice programs that offer alternatives to mainstream justice processes in “appropriate circumstances”.[13] Individuals who access Indigenous Justice Programs have lower rates of recidivism than those who do not participate.[14] Unfortunately, most communities do not have access to this program, and those individuals must proceed through the main justice system, which perpetuates overrepresentation of Indigenous people in custody.[15]
Indigenous Courtwork Program
The Indigenous Courtwork Program assists Indigenous adults and youth who are “involved in the criminal justice system to obtain, fair, just, equitable and culturally relevant treatment.”[16] Currently, seven provinces and all territories administer Indigenous Courtwork Programs.[17] Courtworkers help Indigenous people navigate the complexities of the justice system, facilitate more culturally appropriate services, build trust and reduce miscommunication between Indigenous people and court officers, and may gather relevant information to apply the Gladue Principles during bail and sentencing proceedings.[18] Eighty-nine percent of clients served by Courtworkers say they would recommend the Program to other Indigenous people. Although these services are highly valued, the Indigenous Courtwork Program lacks the capacity to consistently meet the needs of Indigenous people, especially outside major cities.[19]
Based on the above initiatives, Canada is on the right track to mitigate some of the known causes for overrepresentation of Indigenous people in custody. Indigenous communities would benefit from better access to Indigenous Justice Programs, which have had positive effects on communities and on lowering rates of recidivism. Indigenous peoples would also benefit from additional funding toward Indigenous Courtwork Programs in order to consistently apply the Gladue principles, provide culturally relevant assistance, and help Indigenous people navigate the court process. Our evaluation of the efficacy of these initiatives is not complete without a look at the ‘hard data’. So, without further ado, let’s turn to the annual reports called for by the TRC.
Is Canada producing detailed annual reports?
Unfortunately, Canada has not been producing detailed annual reports. On January 21, 2020, the Office of the Correctional Investigator issued a news release indicating that the proportion of Indigenous people in the incarcerated population has increased since 2001.[20] So, right off the bat, Canada receives a failing grade for eliminating the overrepresentation of Indigenous people in custody.
Other than this news release, the last report appears to be from 2017.[21] According to the Government of Canada website, “[c]onsultations with provinces and territories are taking place to develop more effective ways to measure the overrepresentation of Indigenous peoples at various stages in the criminal justice system. This will help better understand and address key issues related to overrepresentation.”[22] The government also receives a failing grade on this aspect of Call 30, for not producing annual reports. In future, we may see an improvement in this grade as Indigenous, provincial, territorial, and federal governments align efforts and data collection to address overrepresentation on an annual basis.
Until Next Time,
Team ReconciliAction
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1R v Gladue, [1999] 1 SCR 688, at para 60, citing M Jackson, “Locking Up Natives in Canada” (1988-89), 23 UBC L Rev 215 at 215-216.
2Office of the Correctional Investigator Government of Canada, “Indigenous People in Federal Custody Surpasses 30% - Correctional Investigator Issues Statement and Challenge - Office of the Correctional Investigator”, (16 April 2020), online: <https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx> [Correctional Investigator].
3Government of Canada, “Delivering on Truth and Reconciliation Commission Calls to Action: Justice”, online: https://www.rcaanc-cirnac.gc.ca/eng/1524502695174/1557513515931.
4Department of Justice Canada, Evaluation of the Aboriginal Justice Strategy: December 2016, by Evaluation Division - Corporate Services Branch, Catalogue No J2-435/2016E-PDF (Ottawa, Department of Justice, 2017) at 62 [Evaluation].
5Department of Justice Canada, Guilty pleas among Indigenous people in Canada, by Angela Bressan & Kyle Coady (Ottawa: Department of Justice, 2017) at 7.
6Ibid.
7Department of Justice Canada, “Evaluation of the Indigenous Courtwork Program”, online: https://www.justice.gc.ca/eng/rp-pr/cp-pm/eval/rep-rap/2018/icp-papa/p5.html [Courtwork 4].
8Ibid.
9Department of Justice Canada, “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, as enacted (Bill C-75 in the 42nd Parliament)”, online: https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/c75/p3.html.
10Ibid.
11Ibid.
12Ibid.
13Government of Canada, “Indigenous Justice Program”, online: https://www.justice.gc.ca/eng/fund-fina/acf-fca/ajs-sja/index.html.
14Evaluation, supra note 4 at 62.
15Ibid.
16Government of Canada, “Indigenous Courtwork Program”, online: https://www.justice.gc.ca/eng/fund-fina/gov-gouv/acp-apc/index.html.
17Department of Justice Canada, “Evaluation of the Indigenous Courtwork Program”, online: https://www.justice.gc.ca/eng/rp-pr/cp-pm/eval/rep-rap/2018/icp-papa/p3.html [Courtwork 2].
18Ibid.
19Ibid.
20Correctional Investigator, supra note 2.
21Department of Justice Canada, Research and Statistics Division, “Indigenous overrepresentation in the criminal justice system” (January 2017), online: https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2017/docs/jan02.pdf.
22Courtwork 2, supra note 16.
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