In Ipeelee the Court decried the failure of the system to answer the call of Gladue and renewed its call for changes in the way Indigenous offenders were sentenced by the courts. The Royal Commission on Aboriginal Peoples (RCAP) identified three viable explanations, each of which has a degree of currency in government thinking and academic literature: colonialism, socio-economic marginalization, and culture clash. [16], In Canada there are 3 bail options to be granted at the discretion of the judge based on the effective arguments of both the defense and the prosecution. Montreal, Quebec [21] This is despite the fact that they comprise 4.9% of the female population of Canada. [19], Despite this ruling, Gladue principals are inconsistently and unreliably used so there has been little positive impact to Indigenous Peoples since the ruling in 1999. For example, in 2014, a significantly higher proportion of Indigenous people than non-Indigenous people in Canada (aged 15+) reported being victimized in the previous … These Calls to Action recognize that FASD is a health issue that is negatively affecting Indigenous people. Indigenous Peoples & The Justice System. In The Colonial Problem, Lisa Monchalin challenges the myth of the "Indian problem" and encourages readers to view the crimes and injustices affecting Indigenous peoples from a more … Additionally, abstinence conditions are difficult to comply with for individuals, without support, who experience substance abuse issues. While these issues affect Indigenous Peoples broadly, there are specific implications for Indigenous women and youth. [12] Duty counsel is provided to ensure that every accused is afforded their Right to Counsel as articulated un Section 10(b) of the Canadian Charter of Rights and Freedoms. While there is no guarantee that federal funding would encourage recalcitrant provinces to actually start to engage with the realities faced by Indigenous people, it would allow those provinces and territories that are moving positively to accomplish much more. The numbers are worse for Indigenous women, who make up over one-third of all women in jail. Studies have shown that Indigenous persons courts — or First Nations courts, or whatever name they choose to go by — make a real difference in how Indigenous people feel they are treated by the legal system. On the other hand, there is no funding for Gladue reports in Saskatchewan and Manitoba, provinces where one assumes the need is certainly as great as in Ontario. Since 1989, 13 provincial and federal inquiries, commissions and studies have examined the issue of Indigenous peoples and the justice system in Canada. Accused persons have access to three types of representation in Canada, duty counsel, defense counsel, and self-representation. Indigenous Peoples twice as likely to be chosen to be surveilled by, or intervened with, by police due to racist stereotypes that criminalize Indigenous people. The concerns the case raised focused not only on the verdict by the all-white jury but also on how the jury was selected, in particular the fact that the defence was able to rely on the use of peremptory challenges to prevent any Indigenous people from serving on the jury. In the case of Barton, released days before the National Inquiry’s report, the court acknowledged the detrimental effects of widespread racism against Indigenous people within our criminal justice system. FASD service delivery in terms of diagnosis, prevention and intervention is lacking and has led to inappropriate treatment within the criminal justice system. Indigenous over-representation in prisons grew under Liberal and Conservative governments before and after the proliferation of mandatory minimum sentences. Intergenerational trauma, or transgenerational trauma, can occur when an individual or group experiences a significant trauma event. These are but 2 of the 13 provincial and federal inquiries, commissions and studies that have looked at the issue of Indigenous people and the justice system since 1989. Duty counsel is responsible for supporting accused persons in understanding their legal rights, the legal process, and / or specifics relating to their case, investigation, or engagement with police. The Supreme Court of Canada decision in R v Gladue both recognized this issue, and mandated justices to allow for provisions in sentencing that considered the historical and socio-economic factors that bring Indigenous Peoples before the court, in order to reduce Indigenous over representation in the carceral system. Further, intergenerational trauma and gender inequality has resulted in Indigenous women experiencing higher rates of post-traumatic stress syndrome and addiction. The federal government provides very little support for the production of Gladue reports. [29], Indigenous leadership, including the Assembly of First Nations and the Métis National Council, have recognized the severity of the issue of Indigenous overrepresentation in the criminal justice system. Obviously, that’s something that’s going to have to be done on a case-by-case, community-by-community, nation-by-nation basis. Subsequently they have called upon the Canadian Federal Government to, among other interventions, commit to ratifying the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Indigenous people are overrepresented in Canada's criminal justice system as both victims and as people accused or convicted of crime. The section states that judges should look for alternatives to incarceration for all offenders, but with particular attention to the circumstances of Indigenous people. Explanations for this overrepresentation are both historical injustices, and the contemporary outcomes, faced by Indigenous Peoples and structural issues within the current criminal justice system. Editing the piece is not permitted, but you may publish excerpts. Approximately 1,000 Gladue reports are written annually in Ontario. Their experiences within the system are interwoven with issues of colonialism and discrimination. Canada H3A 1T1, Privacy Policy | It’s that the will to fix it is lacking. There are also many examples of creative responses that have led to a positive engagement of Indigenous people with the current justice system. Judges and lawyers are not always familiar with noncustodial options, particularly those offered by Indigenous organizations. Terms & Conditions | The work of the Gladue writers is supported by Gladue caseworkers or aftercare workers, who work with offenders after they are sentenced. The Supreme Court in Gladue said judges had a role in over-representation and they should ensure that they had the information necessary to allow them to meaningfully address this provision of the code. Previous Next. Alberta also has a robust Gladue report process, although it is administered very differently. A gathering place for posts about Indigenous Peoples and the justice system in Canada. Indigenous peoples in Canada are significantly overrepresented in the Canadian justice system. Legislative change is certainly useful in addressing the crisis facing the legal system with respect to Indigenous people. Originally published on Policy Options April 30, 2018. But if the problem of over-representation is rooted in systemic and direct discrimination, to just throw up one’s hands is to say that, as a society, we don’t care that our major institutions continue to fail Indigenous people. More is necessary. The 1999 Supreme Court of Canada decision, R. v. Gladue, acknowledged that the Canadian criminal justice system is systemically discriminatory in its treatment of Indigenous peoples and recommends courts consider an Indigenous person’s background when making sentencing decisions. 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