March 18: Week 10
Indigenous Peoples and Criminal (in)Justice
Patricia A. 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: Canadian Aboriginal Issues, 3rd ed. ,pp. 238-257.
Office of the Correctional Investigator (2012). Spirit Matters: Aboriginal People and The
Corrections and Conditional Release Act. Available online: http://www.oci-bec.gc.ca/rpt/oth-
**** mandatory to read the Executive Summary, recommended to read the whole report.
Indigenous people and the CJS: an overview
A History of the Present
post-rebellion criminal justice
criminalization of culture and spirituality
Red Power movement
Findings and recommendations
Overrepresentation in the penal system
R v Gladue
Sapers Report 2012
Colonial Legacy and Systemic Failure
Indigenous people and the CJS: an overview
Between 1967 and 1991
.>30 major Aboriginal justice studies had been completed
.> numerous since, almost annual if not more frequent.
.> Royal Commission on Aboriginal Peoples (RCAP) in 1996
.> specific sub-report on criminal justice system: Bridging the Cultural Divide.
.> remains most significant today.
.> Reports conclusions:
.> Detailed forms of systematic discrimination.
.> Hundreds (even thousands) of recommendations made. Very little implementation. .> Often good intentions to address “root causes” but little political/social will to
.> Recognition of colonial legacy, little ability to implement indigenous self-governance.
.> RCAP identifies over-representation of indigenous peoples in the criminal justice system as
the most representative issue concerning the discriminatory justice policies in Canada.
.> RCAP found Aboriginal over-representation to be “injustice personified”.
.> In the next decade post-RCAP
.> increase in the rates of Aboriginal over-representation in Canada's criminal justice
.> 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 federal Aboriginal population increased by 19.7%.
Moreover, the number of federally sentenced Aboriginal women increased
by a staggering 131% over this period.’
.> Canadian Bar Association reported that an Aboriginal person in this country was more likely
to go to jail than to university (1989).It is still more likely we will go to jail than to university
.> Aboriginal women constitute the fastest growing prison population in the world (CAEFS 2007;
Stern 2006). And have long faced multiple forms of discrimination within the Canadian justice
system (Auditor General of Canada 2003; Canadian Human Rights Commission 2003; Office of
the Correctional Investigator 2006-7).
From Sapers 2012: 21% of the federal inmate population claims Aboriginal ancestry. ‘The gap
between Aboriginal and non-Aboriginal offenders continues to widen on nearly every indicator of
.> Aboriginal accused are more likely to be denied bail;
.> more time is spent in pre-trial detention by Aboriginal 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 offenders are more than twice as likely to be incarcerated than non-Aboriginal
.> Aboriginal Elders, who are also spiritual leaders, are not given the same status as prison
priests and chaplains, in all institutions, and
.> Aboriginal people often plead guilty because they are intimidated by the court and simply
want to get the proceedings over with
.> Aboriginal communities are more intensively policed. And this policing is also shown to be
.> Aboriginal persons are also much more likely to be the victims of crime. Aboriginal victim
statistics are rarely if ever broken down by gender, for if they were, it would undoubtedly reveal that Aboriginal women are significantly overrepresented.
.> over-represented in the court and the correctional system,
.> feel a deep alienation from a justice system that is to them foreign and inaccessible, and
reflects both overt and systemic racism
.> numerous reports; thousands of recommendations over the past three decades
.> little to no implementation
.> lack of political will
.> importance of the courts in seeking redress / improvements.
.> Delgamuukw on self-government; remains largely undefined, very piecemeal.
.> Donald Marshall
A History of the Present: Indigenous People and the CJS
.> CJS was multi-layered, not centralized, somewhat incoherent prior to confederation.
.> colonial governance of indigenous peoples balance of coercion and diplomacy, with
coercion as time progressed
.> 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
.> Confederation and Rupert’s transfer made without consultation.
.> post-confederation: 1867-1885.
.> national policy, three pillars.
.> Act to Encourage the Gradual Civilization of Indian Tribes and Enfranchisement Act
brought into Indian Act (1876)
.> Indian act made all Indian Agents in Jps and Magistrates
.> NWMPAct 1873
.> reservation system, policing, agriculture.
.> Rebellion of 1885.
Conditions on reserves in the North-West were very dire during the period following the
Treaties. Declining buffalo and disease had had disastrous consequences on indigenous
communities (Pettipas 1994). Fully knowledgeable of these conditions, colonial authorities
deliberately exploited indigenous suffering in order to extract more land and further wither
indigenous peoples capacity to oppose the rapid expansion of Canadian settlement (Stonechild
and Waiser 1997). Officials regularly exploited the poor position of indigenous people to revoke
or deny treaty entitlements. Sarah Carter (1990: 78) has detailed how government officials
regarded treaty commitments as forms of charity or gratuities, rather than as legally required
payments for land that was ceded.
.> ‘revisionist’ history
Following the Rebellion Dewdney was instructed to "quietly collect evidence" against all Indians suspected of any wrongdoing, no matter how trivial (Stonechild and Waiser, 1997:196). In the
trials following the Rebellion Indians were sentenced for various offences, more than twice the
number of Métis 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). As Stonechild and Waiser (1997:215) argue, the 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"
(quoted in Waiser 2009).
Reserves and pass system
Expansion of NWMP outposts after 1885 combined with the patrol system to increase police
attempts to address perceived issues of Indian crimes - particularly horse stealing - and support
systematic efforts to keep Indians on reserves (Hubner, 1998: 65; Jennings, 1986). Criminal
enforcement had practical aims to ease tensions between Canada and the United States, but
also aimed to crush the spirit and autonomy of indigenous peoples. Hubner (1998:53) has noted
that NWMP targeted horse stealing as a crime because "it could be used to circumscribe Indian
movement and restrict Indian men to their reserves, symbolically crushing their way of life."
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."
.> eventually stopped by NWMP
Smith on reserves:
Smith (2009: 9) notes that reserves mirrored institutions identified by Bentham and Foucault that
might effectively employ disciplinary surveillance as a form of reformatory strategy. Reserves
allowed for a network of actors - including NWMP officers, Indian agents, religious officials,
businessmen, educational workers, etc. - to begin systematically reporting on the activities and
conditions of indigenous people on reserves. Information gathered from these sources were
compiled and scrutinized by the Department of Indian Affairs (DIA).
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. (16).
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.
Residential/industrial schools that aim to "kill the Indian and save the child" (Miller 1989: 125-
147). .> post-Rebellion years witnessed the most expansive effort to implement projects of education,
labour training, and explicit assimilation. Miller (1989:189-207) has referred to these post-1885
policies as those of "the bible and the plough."
Criminalization of identity, culture and spirituality
On April 19, 1884, an amendment of the Indian Act known as the Potlatch Law was passed
stating that participation in polatches and Tamanawas was a misdemeanour. (92). “This
regulation was the first of several official enactments designed to eradicate traditional customs.”
In 1885, the Canadian government outlawed the ceremonial distriubion of property through
potlatches and other forms of religious expression by amending the Indian Act.
These laws were justified by government officials and missionaries on the grounds that these
ceremonies undermined the assimilatory efforts to civilize indian societies.
Pettipas (1994:102) writes that, following the Rebellion, Officials from Indian Affairs increasingly
considered large communal gatherings as “hot beds” for civil disorder.
In 1889, Deputy Superintendent General Lawrence Vankoughnet wrote: “The time has now
arrived when the great obstacle to the civilization and advancement of the Indians, viz. the Sun
Dance, should be abolished by statutory enactment.” (quoted in Pettipas, 1994:104).
1895: Section 114 of the Indian Act introduced to outlaw all dances, ceremonies and festivals
that involved the wounding of animals or humans, or the giving away of money or goods
Pettipas writes that, with passage of Section 114, “the repression of ceremonial life became an
integral part of the implementation of Indian policy in the prairie region.” (108)
“Convinced of the ability of non-Western peoples to attain and enjoy the benefits of ‘civilization’,
Victorians undertook to destroy the cultural underpinings of prairie Indian life.” (105).
.> Myriad of Acts to claw away reserve lands
1914: Amended to require western Indians to seek official permission before appearing in
"aboriginal costume" in any "dance, show, exhibition, stampede or pageant
1927: Amended to prevent anyone (aboriginal or otherwise) from soliciting funds for Indian legal
claims without a special license from the Superintendent-General. This effectively prevented any
First Nation from pursuing aboriginal land claims
.> 1969 White Paper.
.> All to say that indigenous poeple were the most governed population, bar none.
Red Power Movement
.> inspired / paralled w/ Black Power movement in the US, and third-world revolutionary movements.
.> The Kenora protest and the native pavilion at Expo '67
.> national movement rose up against the Trudeau governme