Why are there so many Indigenous people in the criminal justice system and what can we do?

By Andrea Phillips (Legal Aid Saskatchewan Indigenous Policy Counsel), Cory Rediron (Legal Aid Saskatchewan Staff Lawyer) and Morgan Ryan-Roe (Legal Aid Saskatchewan Gladue Database Coordinator)

From the earliest days of Canadian legislation, Indigenous people have not been afforded the same rights as Euro-Canadians. For example, they were prohibited from seeking legal counsel or hiring a lawyer (Indian Act, Sec. 141, 1927) when needed. They faced criminal charges, penalties and even incarceration for continuing to practice Indigenous ceremonies, traditions, livelihoods, and community gatherings. Government legislation has worked to eradicate Indigenous people and their way of knowing and being by the seizure of land, allocating inadequate reservations, instituting strict rules regarding mobility, mandating residential schools and day schools, and the ‘60s Scoop.

Today, children continue to be apprehended. Indigenous people are before the court and filling jails because of attempts to cope with the experienced abuse and with the learned behaviour through generations who attended residential school, day school, and displacement during the ‘60s Scoop. Rather than impose government legislation to ensure that Indigenous people are healing and properly coping with the wrongs inflicted upon them, the current legislation and practices continue to enforce the cyclical nature of trauma and coping.

"Working on the bail team at Legal Aid Saskatchewan, I get a front-row seat watching the people entering the criminal justice system. Some are there for the first time and do not understand what’s about to happen, while others are experienced and know they have a lot riding on what the prosecutor is about to say. If you pay attention to the people entering these boxes, you’ll notice some patterns. Most people give off one or two hints of poverty, while others appear to be going through withdrawals from drugs or alcohol. Every now and then, you’ll get the poor soul struggling with their mental health and are in court due to factors largely outside their control. After enough time of observing this, one thing becomes clear – there is a significant problem with the overrepresentation of Indigenous peoples in the criminal justice system.” – Cory Rediron, Legal Aid Saskatchewan Staff Lawyer

Former Government of Saskatchewan Advocate for Children and Youth Corey O’Soup said it can take up to two years for a child in the province to see a counsellor. To quote the late Honourable Harold Johnson (author of Peace and Good Order: The Case for Indigenous Justice in Canada), “We would be much better off if instead of three hundred police officers we had three hundred trauma counsellors.”

There have been very few who work within the justice system willing to look at and listen to those who are before the courts about why they are there and what they need to heal and move into a new phase in their life. Legal Aid Saskatchewan has strategic priorities of advancing reconciliation principles in justice reform and sponsoring partnerships for holistic response and system change. Often, colonial practices and expectations are subpar and inappropriate for Indigenous people due to their past and upbringing and a further removal from their traditions. Where appropriate and culturally relevant services and supports do exist, they are grossly underfunded, and for those who are ready to heal they often find themselves on a wait list. Sometimes, when addiction takes it hold, the “one last hit” is the actual last hit. Some people are not at a point where they are able to heal. Some never will.

Saskatchewan must better utilize Gladue reports . Every Indigenous person is legally entitled to have their Gladue factors considered in court and has the right to a Gladue submission or report. Ideally, every Indigenous person in the justice system would have access to a fully funded and quickly prepared Gladue report. Unfortunately, this is still not the case in many provinces, including Saskatchewan. In Saskatchewan, Gladue reports can take eight to 12 weeks to complete. There are some cases where waiting for a Gladue report can create unfair wait times in prison (remand).

Ultimately, to see effective change in the trend of Indigenous mass-incarceration, we need to depart from traditional sentencing procedures and invest in community supports, rehabilitative, restorative, compassionate healing, and the mental, physical, and spiritual wellbeing of our community members. This must include the wellbeing of our already incarcerated community members as well.??

What are the benefits of an Indigenous court? An Indigenous court would ensure that Indigenous people are understood and empathized with without the judgement of the colonial system. An Indigenous court would work with Indigenous service providers and support workers to ensure that those who are ready to heal and are beginning their healing journey are able to continue to do so and not to succumb to the gang life out of a need for self-preservation. An Indigenous court would allow for an Indigenous person to enter a place where the emphasis is placed on healing: healing for the victim of the crime, healing for the community where the crime took place, and healing for the person who committed the crime. An Indigenous court would take the time to inquire, “Why are you here? What lead you here? How can we find the right path for you?”

“The individuals filtering through the criminal justice system are overwhelmingly Indigenous and it doesn’t appear to be slowing down. There is no easy solution to this problem, but it’s clear that it hasn’t been adequately addressed. I have heard of positive experiences of people going through sentencing circles or the mental health court, but there is still a lot of room for improvement. An Indigenous court might not solve all these problems, but I believe it would be a step in the right direction.” – Cory Rediron, Legal Aid Saskatchewan Staff Lawyer

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