Canada’s justice system has a standing crisis that is the overrepresentation of Indigenous peoples that are incarcerated. However, for Indigenous women, this problem is a unique one. Indigenous women are the fastest-growing prison demographic in Canada, surpassing rates of Indigenous men’s incarceration. For these women, despite only representing 4 percent of the general Canadian population, they represent 41 percent of all female prisoner populations in the country and 50 percent of those put into solitary confinement in Canadian prisons. And the rate at which Indigenous women are found incarcerated is growing exponentially without any signal that these rates are slowing down, having increased by 109 percent between 2001-2002 and 2011-2012.
In 2015, the Truth and Reconciliation Commission (TRC) calls on the Canadian government to address the overrepresentation of Indigenous peoples in prisons stating under action 30: “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 the progress in doing so”.
Why are Indigenous women disproportionately incarcerated?
There is no single factor that explains Indigenous women’s incarceration, but there are general risk factors that predispose Indigenous women to the penal system. Criminal behaviour is found to be linked to problems of poverty, abuse, and addiction and mental health issues. In Canada, women and Indigenous peoples alike are more likely to be living in poverty. Therefore Indigenous women experience economic disadvantages as both women and as Indigenous—reaffirming principles of intersectionality. For example, of women living on low incomes, 32.3 percent are Indigenous women with registered treaty status. Meaning that some groups of women, particularly Indigenous women, are at greater risk of marginalization that might incentivize criminal behaviour for survival.
Further, women in custody are overwhelmingly charged for crimes related to self-defence. Meanwhile, Indigenous women are disproportionately victims of crimes based in racism and gender-based violence. In view of this, Indigenous women are forced to defend themselves from danger more frequently than any other identity-based group. After being taken into custody, they often have no choice but to plead guilty in court, having to rely upon underfunded and overworked public defenders as they are unable to pay for the same boutique defence lawyers as their Canadian counterparts are likely to pay for if one was facing similar charges. This points to a clear disadvantage for Indigenous women if they come into contact with the justice system.
But despite these contributing factors, Indigenous women are victims of a system that actively seeks for their bodies to occupy space in prisons in order to further the political goals of the Canadian state. What this means is that the mass imprisonment of Indigenous women is fuelled by the country’s legacy of settler colonialism that specifically targeted Indigenous women. This is because traditionally, in pre-contact Indigenous communities, Indigenous women’s roles were met with relative power and equality. As a result, Indigenous women would become targets for settlers—translating to a long history of abuse and discrimination. The idea was that by removing Indigenous women from communities, Indigenous peoples would cease to exist and thereby, would consolidate Canada’s claims to land.
Contemporarily, imprisonment is used as a strategic tool for the assimilation of Indigenous peoples for the same settler-colonial goals during European settlement. By criminalizing specific groups, the trust of Canadians in the government is cemented and so too are claims to land amidst increased Indigenous activism that is exposing the government’s failure to uphold treaty promises.
What is clear is that despite specific facts related to crime, Indigenous women are not committing crimes more frequently than their non-Indigenous counterparts. Rather, the system itself is structurally racist.
But if Canada wants to seriously confront its systemic racism of the penal system, the country will need to dig deeper than its 1999 decision in R v Glaude and 2012’s R v Ipeelee, where the Supreme Court both recognized Indigenous mass incarceration as a crisis and rules to enforce new frameworks for sentencing Indigenous peoples. This is clear because despite these ‘landmark decisions,’ rates of imprisonment continue to rise with longer sentences and harsher conditions— showing that reform from within the system has had no positive effect.
What is next?
Abolition is an opinion that is garnering attention alongside the recent Black Lives Matter movement’s increased momentum (better known as defunding the police and prisons or ‘decarceration’). With this in mind, provinces should reallocate police funds to instead prioritize funding towards social services. For example, this might look like more adequate funding for government housing, education, mental health, and youth services. The basic idea is to address the conditions that make marginalized groups vulnerable to the penal system before they encounter the law. And if Canada is serious about its commitment to the TRC, it must take accountability for its roots in systemic racism through increased national action that distributes equitable social services for marginalized groups that are both vulnerable to the penal system and for those that are presently in custody. Now more than ever, we must interrupt the cycle of mass imprisonment of Indigenous women, and abolition seems like the most viable reform available to forge meaningful change. Voices are being heard, but the system remains the same.
Edited by Yu Xuan Zhao
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.