In May of 2020, an 8 minute and 45 second video surfaced that showed a white police officer (Derek Chauvin) killing a Black man, George Floyd, in Minneapolis, Minnesota. Almost immediately after this began an outburst of protests over police brutality and violence against Black Americans.
In Canada, Black Lives Matter (BLM) protests filled the streets in the name of George Floyd, Breonna Taylor, and Ahmaud Arbery. The momentum of these protests has led to solidarity on the basis of systemic racism (despite the differences in anti-Blackness and settler colonialism) between BLM’s call for justice and of Indigenous peoples who, like Black Americans, are jailed disproportionately, criminalized, and face violence perpetrated by police.
Disproportionate incarceration of Indigenous peoples in Canada illustrates that Indigenous peoples are subject to unfair treatment within the Canadian criminal justice system. This reality is more than a consequence of socioeconomic inequalities and a “culture clash“. Rather, locking up Indigenous peoples is used as a tool for assimilation. What is clear is that Indigenous peoples are victims of a systematically disadvantageous system that consolidates Canadian statehood by targeting Indigenous bodies.
The rate at which Indigenous peoples are overrepresented in the Canadian prison population mirrors Black Americans in the United States. Black people in American federal prisons are overrepresented by more than 200 per cent when compared to their proportion of the general population. Even more strikingly, Indigenous peoples in Canada are overrepresented by more than 500 per cent when compared to the general Canadian population.
Indigenous peoples represent only 4 per cent of the Canadian adult population and yet account for 30 percent of all federal jail admissions. More disheartening, Indigenous youth represent only 7 percent of all youth across Canada, and account for 35 percent of youth admitted to correctional services.
When analyzed through a gendered lens, the statistics are not much better. Among female federal inmates, 42 per cent identify as Indigenous women. Among incarcerated female youth, Indigenous women account for 44 per cent.
Compared to all other Canadians facing criminal charges, Indigenous peoples are younger and more often denied bail. They are also disproportionately classified as “high risk” offenders: this means that they are also more likely to be placed in maximum security holding facilities and in solitary confinement. In all, once in the prison system, Indigenous peoples are less likely to leave.
“It is not merely that the justice system has failed [Indigenous peoples]; justice has also been denied to them”, this is a quote taken from the Aboriginal Justice Inquiry of Manitoba’s final report which examines the relationship between the province’s Indigenous peoples and the penal system.
Inequality within Canadian jails is evidenced by the fact that while non-Indigenous incarceration rates are on a steady decline, Indigenous incarceration is experiencing a steady growth. This demonstrates how inequality is not an issue of the past, rather Indigenous mass incarceration is linked to political and legal issues that continue to plague the country’s justice system. Such issues need to be directly addressed with accountability through legislative and legal reform.
Through the Royal Commission, Canada’s federal government has drafted and passed legislation to address Indigenous overrepresentation in prisons since 1989. By 1996, Section 718.2(e) of the Criminal Code passed through Parliament under Bill C-41, allowing judges to consider the life circumstances of Indigenous peoples with reference to discrimination and settler colonial oppression when sentencing identifying offenders. In 1999, this became known as the Gladue Decision by the Supreme Court (R. v. Gladue), this establishing a framework for the implementation of Section 718.2(e).
However, the reality is that sentencing judges do not regularly apply the Gladue framework. As Gladue reports are not consistently filed before trial, they are often neglected by lawyers and an overburdened system. This demonstrates a gap in legal legislation and court proceedings.
There is a need for long-term strategies that involve consultation with Indigenous populations in order to remedy this gap. Amendments to the Criminal Code must be more specific by directly acknowledging bias in the justice system and the settler colonial oppression visible through socioeconomic factors and intergenerational traumas.
For example, Gladue principles ought to be applied in every case that the offender identifies as Indigenous—this must be mandatory. To ensure that this follows in the courtroom, the federal government must make it a priority to fund Gladue reports for Indigenous offenders. By funding these reports, sentencing judges have easy access to background information and are thus better able to apply the Gladue framework.
If the Canadian government wishes to reconcile and build meaningful relations with Indigenous peoples, it must prioritize new legislation that directly challenges discrimination and systemic racism of the justice system. Broad pledges to these issues by increasing police body cameras and unclear calls to action are simply empty gestures. This is a call for systemic change. Public toleration of such stark inequities is no longer acceptable in Canada.
Edited by Gabriela McGuinty
Riyana Karim-Hajiani is a student at McGill University pursuing a B.A. in Political Science at the Honours level. Currently in her second year at McGill, she has joined the Catalyst as a staff writer. Particularly, she is interested to explore Indigenous legal issues pertaining to the laws that affect Indigenous peoples and the rights of Indigenous peoples in Canada and internationally.