Lecture 10 Criminology CRCJ 1000-C
INDIGENOUS PEOPLESAND CRIMINAL (IN)JUSTICE SYSTEM
Required readings:
I. PatriciaA. Monture-Angus (2011). “The Need for Radical Change in the Canadian Criminal Justice
System:Applying a Human Rights Framework” in D. Long & O. Patricia Dickason, eds., Visions of the
Heart: CanadianAboriginal Issues, 3rd ed., Pp. 238-257.
II. Office of the Correctional Investigator (2012). Spirit Matters:Aboriginal People and The Corrections and
Conditional ReleaseAct.Available online: http://www.oci-bec.gc.ca/rpt/oth-aut/oth-aut20121022-
eng.aspx. Mandatory to read the Executive Summary, recommended to read the whole report.
OUTLINE:
• Indigenous people & the CJS: an overview
• Colonial development of the CJS
• Post-confederation
• Post-rebellion
• RCAP
• Oka
• Previous reports
• RCAP overview
• Findings & recommendations
• Systemic Failures
INDIGENOUS PEOPLE & THE CJS:AN OVERVIEW
• Between 1967 and 1991, 30 majorAboriginal justice studies had been completed (RCAP 1996, 289).
• Numerous since, almost annual if not more frequent.
• Royal Commission onAboriginal Peoples (RCAP) titled Bridging the Cultural Divide.
• Remains most significant.
• Various conclusions presented:
• Detailed forms of systemic discrimination.
• Hundreds (even thousands) of recommendations made. Very little implementation.
• Often good intentions to address “root causes” but little political/social will to implement change.
• Recognition of colonial legacy, little ability to implement indigenous self-governance.
• RCAP/Monture: penal over-representation as an indicator of systemic problems.
• RCAP did not help to transform Canada’s justice system. In fact, the subsequent decade registered an
increase in the rates ofAboriginal over-representation in Canada’s criminal justice system.As noted in a
report from the Office of the Correctional Investigator (2009, 6:)
• Aboriginal over-representation has grown in recent years: between 1998 and 2008, the federalAboriginal
population increased by 19.7%. Moreover, the number of federally sentencedAboriginal women
increased by a staggering 131% over this period.
CJS & INDIGENOUS PEOPLES
• Office of the Correctional Investigator: 2012: 21% of the federal inmate population claimsAboriginal
ancestry (2 percent of general Canadian population). The gap betweenAboriginal and non-Aboriginal
offenders continues to widen on nearly every indicator of correctional performance.
• The number of aboriginal women who were locked behind bars in federal institutions grew a staggering
97 percent between 2002 and 2012, according to the federal Justice Department. Lecture 10 Criminology CRCJ 1000-C
• Aboriginal offenders are more than twice as likely to be incarcerated than non-Aboriginal offenders;
• Aboriginal accused are more likely to be denied bail;
• More time is spent in pre-trial detention byAboriginal people;
• Aboriginal accused are more likely to be charged with multiple offences, and often for crimes against the
system;
• Aboriginal people are more likely not to have legal representation at court proceedings;
• Aboriginal clients, especially in northern communities where the court party flies in the day of the hearing,
spend less time with their lawyers;
• As court schedules in remote areas are poorly planned, judges may have limited time to spend in the
community;
• Aboriginal people often plead guilty because they are intimidated by the court and simply want to get the
proceedings over with. Known as ‘pleading out.’
• Aboriginal communities are more intensively policed.And this policing is also shown to be discriminatory.
• Aboriginal persons are also much more likely to be victims of crime.Aboriginal victim statistics are rarely
if ever broken down by gender, for if they were, it would undoubtedly reveal thatAboriginal women are
significantly overrepresented.
• Jury rolls; high likelihood of accused to be tried by an all-white jury (R. v. Kokopenance (SCC).
• Aboriginal Elders, who are also spiritual leaders, are not given the same status as prison priests and
chaplains, in all institutions, and
• Many indigenous communities experience a deep alienation from a justice system that is to them foreign
and inaccessible, and reflects both overt and systemic racism.
• Reasons for lack of reform/improvements:
• Little to no implementation, despite voluminous reports
• Lack of political will.
• Courts as primary vehicle of redress
AHISTORY OF THE PRESENT: INDIGENOUS PEOPLEAND THE CJS
PRE-CONFEDERATION
• CJS was multi-layered, not centralized, somewhat incoherent prior to confederation.
• What existed as Indian policy in the broader Dominion of Canada was a mixture of policies influenced by
British, French, and Canadian practices. In 1860, the responsibility for Indian affairs was transferred from
the British Colonial Office to the government of the Province of Canada.
• Contextual policy
• Confederation and Rupert’s transfer made without consultation.
POST-CONFEDERATION: 1867-1885
• Act to Encourage the Gradual Civilization of Indian Tribes and EnfranchisementAct brought into Indian
Act (1876)
• Canadian/British assimilationist approach vs US Indian Wars approach
• Indian act made all IndianAgents in JPs and Magistrates
• NWMPAct 1873; ‘law and order’to the prairies; three major impetus (border solidification, booze,
indians).
• Early stages of the national policy, three pillars plus treaties.
• Establishment of reservation system, treaties, agricultural settlement.
REBELLION OF 1885 Lecture 10 Criminology CRCJ 1000-C
• Pre-rebellion conditions
• Dominant history vs ‘revisionist’history
• Pan-indigenous movement and treaty re-negotiation
• Following the Rebellion, Dewdney was instructed to “quietly collect evidence” against all Indians
suspected of any wrongdoing, no matter how trivial (Stonechild and Waiter, 1997:196 — “Loyal till
Death”).
• In the trials following the Rebellion Indians were sentenced for various offences, more than twice the
number of Metis convictions, that culminated in the largest public execution in Canadian history: eight
indigenous men convicted without legal representation by an all-White jury (see Beal and Wright 2009).
• The Rebellion Trials and executions were designed to kill the momentum for re-opening treaty
negotiations. The broader political motives were expressed in a letter by Prime Minister MacDonald to
Dewdney, one week before the hangings: “the executions… ought to convince the Red Man that the
White Man governs.”
POST-REBELLION
• Reserves and Pass System
• Reserves as containers; beginnings of massive bureaucracy of surveillance, control, governance, with
IndianAffairs.
• The pass system was first discussed in 1882, however it was only implemented broadly in the
aftermath of 1885 and , as John Jennings (1986:229) describes, it was the Rebellion that “brought the
pass system to life with a jolt.”
• On DIA‘tabular statements’:
• The information gathered and published by the DIA, though, far exceeded that of the published
censuses in breadth and depth. Where individual level data was included, the detail of the DIA’s
annual reports went well beyond the unpublished decennial censuses as well (Smith 2009: 16 —
“Liberalism, Surveillance, and Resistance”).
• Tabular statements included: sources and values of income, land use, educational achievements,
literacy in English and French, material possessions, extents of fencing and cultivation, quantity and
types of buildings, livestock and poultry, sanitation, morality, mobility, and even clothing styles of
Indigenous people living on reserves were observed, measured, judged , and compared with their
neighbours.
• Industrial/residential schools
• R
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