Indigenous Incarceration in Canada

Abstract

Canadian sentencing law reform in 1996 and the R. v. Gladue 1999 Supreme Court landmark decision, Canada introduced an internationally unique requirement for Canadian courts in sentencing Indigenous offenders to give special consideration to systemic factors in order to address the historic and ongoing experiences of Indigenous people in the criminal justice system Canada. While these reforms to the criminal justice system were centred around alleviating the egregious level of incarcerated Indigenous people, this analysis will reveal the implementation of Gladue principles has not been the transformative change many have hoped for. This Canadian policy research paper argues that the Canadian government’s Gladue policy has been underfunded and requires a commitment to the complete implementation of Gladue Reports and Gladue Courts to accomplish its objectives of considering the systemic circumstances of Indigenous offenders and providing criminal justice in a culturally appropriate manner.

Impact of Race and Culture Assessments (IRCAs) in combatting anti-Black racism and reducing recidivism

“…The Gladue report, named after R. v. Gladue, is a landmark Supreme Court of Canada case which emphasizes the need to consider the unique circumstances faced by Indigenous individuals when determining appropriate sentences (Government of Canada, 2023a;MacCarthy, 2023;Rudin, 2008). The 1999 landmark Supreme Court of Canada case established that as part of sentencing Indigenous offenders, the judge must consider (Ralston, 2021):…”

“…The unique systemic or background factors which may have played a part in bringing the particular Indigenous offender before the courts; and n The types of sentencing procedures and sanctions which may be appropriate given the circumstances of the offender because of their particular Indigenous heritage. R. v. Gladue highlights how historical injustices, systemic discrimination, colonization, and cultural factors play a significant role in shaping the lives of Indigenous offenders (Government of Canada, 2023a;MacCarthy, 2023;Rudin, 2008;Truth and Reconciliation Commission of Canada, 2015). Although Gladue reports and courts are implemented across Canada, there have been challenges in their comprehensive implementation to significantly reduce the overrepresentation of Indigenous Peoples in the criminal justice system (Government of Canada, 2023a;MacCarthy, 2023;Rudin, 2008).…”

“…R. v. Gladue highlights how historical injustices, systemic discrimination, colonization, and cultural factors play a significant role in shaping the lives of Indigenous offenders (Government of Canada, 2023a;MacCarthy, 2023;Rudin, 2008;Truth and Reconciliation Commission of Canada, 2015). Although Gladue reports and courts are implemented across Canada, there have been challenges in their comprehensive implementation to significantly reduce the overrepresentation of Indigenous Peoples in the criminal justice system (Government of Canada, 2023a;MacCarthy, 2023;Rudin, 2008). As MacCarthy (2023) explains, While Gladue's reform may appear to be a transformative or liberating change, in practice, the Gladue principles support the maintenance of a system in which Indigenous people are filtered through a white judicial lens that perpetuates historical power relations.…”

“…We argue that what is lacking to increase the efficacy of IRCAs is using them as a tool to connect offenders with culturally reflective wraparound services as part of integration back into the community with a focus on employment, education, and housing supports. This is an area where IRCAs and Gladue reports have failed (MacCarthy, 2023;Rudin, 2008). IRCAs are not meant to be a jail-free card as some of the criticism states, but rather an important process that identifies the root causes of why someone gravitates towards criminality.…”

“…One of the key challenges for why Gladue reports and courts have not drastically reduced the overrepresentation of Indigenous Peoples in incarceration facilities is the lack of resources, training, and holistic implementation post-release with connecting offenders with accessing relevant wraparound services within community settings (Government of Canada, 2023a;MacCarthy, 2023;Rudin, 2008). Currently, IRCAs and Gladue reports are mainly used for equitable sentencing but are not used as a diagnostic tool to connect offenders with community organizations and agencies that can offer culturally reflective services in areas such as housing, employment, and education.…”