Colonial Sentencing: Incarcerating Aboriginal people – Part I

This is a three part series based on a paper I wrote not long ago. The style is more academic and the citation less user friendly, but I thought it was a nice follow up on last week post and it gives me a break during my vacation. Here is Part I:


Canada’s relationship with its Aboriginal population is bleak to say the least. Allies to the colonial powers at first, the Aboriginal Peoples of Canada quickly became outcasts as they were progressively pushed into reserves and their land “acquired”[1] through a series of treaties. As they lost their military usefulness, the British government followed by the Canadian federal government started a policy of assimilation of Aboriginal peoples mainly through the Indian Act by effectively making them “wards of the crown”.[2] The prohibition of Aboriginal ceremonies, diminished legal rights, and forcing children to attend residential schools were only a few of the “tools” of Canada’s assimilation policy. Since the 1970s, Aboriginal Peoples have started militating in order to obtain self-government, recognition of their ancestral and human rights, compensation for past wrongs and international recognition amongst other things.[3] Nevertheless, Canada’s assimilationist policy had and continues to have an enduring effect on Aboriginal peoples who now have high level of poverty, alcoholism, unemployment, and low level of sanitation, education, housing, etc.[4]

A particular plight Aboriginal people suffer is a disproportionate rate of incarceration. Although they represent approximately only 3% of the total population (2006 data), they represent 27% of admissions to provincial penitentiary and 18% of federal ones.[5] The overrepresentation of Aboriginal people in the criminal justice system is a result of the many negative socio-economic factors outlined above.[6] Solutions to this endemic problem will thus have to be varied and address the various obstacles Aboriginal people face in Canada. Ultimately decolonization is the only way to permanently and justly solve the problem. Some causes are however internal to the criminal justice system. Sentencing of Aboriginal people is such a cause and reforming this crucial step in the criminal law system is part of the solution as recognized by the Supreme Court of Canada.[7] This essay seeks to address this small part of the larger problem of Aboriginal incarceration. It first lays out the interaction of Aboriginal people with the Criminal Justice System. It then looks at law of sentencing and its application to Aboriginal people. Finally, it ends with possible recommendations in order to begin remedying the situation and begin the decolonization process.

1. Aboriginal Peoples and the Criminal Justice System

A. Aboriginal Peoples in Canada

Aboriginal Peoples in Canada include Fist Nations, Métis and Inuit.[8] First Nations include status and non-status Indians and/or on and off reserve members.[9] Article 9 of the United Nations Declaration on the Rights of Indigenous Peoples indicates that: “Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.” A common definition for Indigenous peoples is:

“indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.”[10]

Aboriginal identity is an important question as adopting an unjustly restrictive approach could lead to a denial of justice since it would result in denying oppressed individuals a chance to emancipate from such oppression.[11] This essay therefore adopts a broad and inclusive definition of Aboriginal Peoples based on self-identification and community affiliation.

There are, according to Statistic Canada, 1 172 785 Aboriginal people in Canada, which amounts to roughly 3.8% of the Canadian population. 698 025 identify as First Nations (59.52%), 389 780 as Métis (33.24%), and 50 480 as Inuit (4.3%). 308 490 lived on reserve, 240 825 in rural communities and 623 470 in urban communities. Aboriginal population tends to grow at a much faster rate than settler population. They have a growth rate of 45% and 8% respectively. It is thus possible to affirm that with a growing population, the incarceration rate of Aboriginal people will also grow if the status quo persists. In terms of socio-economic data, 45% of Aboriginal people lived in home in need of major repair. 33% had less than a high school education. Only 70 965 Aboriginal people had a university education. The unemployment rate for Aboriginal people 25 to 54 years old was 34.2%. The median income of Aboriginal people was $22 000, which is 2/3 of the Canadian median income. Life expectancy of Aboriginal people is 64 years for men and 73 years for women compared to 79 years for settler men and 83 years for settler women.[12] “Poverty, according to the Canadian Council on Social Development, is one of the most pressing problems facing Aboriginal peoples, particularly in cities, where 60 per cent of Aboriginal children live below the poverty line.”[13]

B. Incarceration and Aboriginal People

The broader socio-economic circumstances mentioned above have been widely recognized as the cause for Aboriginal over incarceration.[14] The problem is not new and has largely been documented in a considerable number of inquiries and commissions.[15] In 2010, Aboriginal people made up 26% of federal, provincial and territorial custodial admissions and young Aboriginal people made 21% of youth in open or secure custody.[16] The problem is sadly worsening over time as this proportion went from 19% in 2006 to 26% in 2010, the most recent year for which Statistic Canada has data.[17] Although incarceration rate is diminishing for the general population (by 9% from 2001 to 2006) it is increasing for Aboriginal people (by 4% from 2001 to 2006).[18] The statistic on over incarceration of Aboriginal people led the Royal Commission on Aboriginal Peoples to conclude that:

“The Canadian criminal justice system has failed the Aboriginal peoples of Canada  —  First Nations, Inuit and Métis people, on- reserve and off -reserve, urban and rural  —  in all territorial and governmental jurisdictions. The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice.”[19]

Beside its social cost, which should not be minimized, over incarceration of Aboriginal people has a high fiscal cost with little to no benefit for the public. According to Statistic Canada, “In 2008/2009, adult correctional service expenditures totalled almost $3.9 billion, marking a 7% increase from the previous year when controlling for inflation.”[20] 54% of the costs are federal and 46% are provincial.[21] Custodial services represents to majority of the expenditure: 65% for the federal and 79% for the provincial. At the federal level it costs on average $117 895 per year per inmate for custody; the average for the provincial level is $59 130.[22] These costs are projected to increase significantly over the years, partly because of the current government’s “tough on crime” policy and the adoption of Bill C-10, the Safe Streets and Communities Act, also known as the omnibus crime bill.[23] On the other hand, sentences served in the community costs on average $29 476 per year per offender.[24]

Using these numbers, incarceration of adult Aboriginal people cost approximately $256 869 626 to the federal government in 2010. By cutting the Aboriginal inmates population by half, which would still bring the proportion of incarcerated Aboriginal people well over the 3.8% it should probably be (assuming no other change is made in criminal policy), the federal government could save over a hundred million dollars. Even if this half is still in the correction system but instead serving a community sentence, the federal government would save around a hundred million dollars. These fictional numbers do not even take into account the projected increase of the inmate population. The money saved by ameliorating the sentencing system could be reinvested more efficiently in different social programs geared toward helping Aboriginal communities with their socio-economic problems which in turn would further reduce Aboriginal incarceration. Better yet, they could be put in their hands to help them built a system reflecting their values instead of ours.

Part II. and Part III.

[1] The validity, meaning and effect of those treaties are disputed: see for example Sébastien Grammond, Aménager la Coexistence – Les Peuples Autochtones et le Droit Canadien (Cowasville (QC): Éditions Yvon Blais, 2003) at pp 90-95 [Grammond]. However their practical effect was the displacement of the Aboriginal Peoples and the colonization of the territory by white Canadian settlers.

[2] Indian Act, RSC 1985, c I-5; Grammond, ibid at pp 70-80 & 95-105; Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back, vol 1 (Ottawa: Supply and Services Canada, 1996) at ch 6 [Aboriginal Peoples Report, vol 1]; and Andrew Armitage, Comparing the Policy of Aboriginal Assimilation: Australia, Canada and New Zealand (Vancouver: UBC Press, 1995) at pp 74-79.

[3] Grammond, ibid at pp 105-144; s 35 of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11; Aboriginal Peoples Report, vol 1, ibid at ch 7; and the United Nations Declaration on the Rights of Indigenous Peoples, GA Res 295, UNGAOR, 61st Sess, Annex, UN Doc A/RES/61/295 (2007).

[4] Submission of the Assembly of First Nations on Bill C-10 to the Senate Standing Committee on Legal and Constitutional Affairs, 41st Parliament, 1st Session [AFN Submission]; and Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, UNESCOR, 2004, Addendum – Mission to Canada, UN Doc E/CN.4/2005/88/Add.3 [UN Special Rapporteur].

[5] Kent Roach, Criminal Law, 5th ed. (Toronto: Irwin Law, 2012) at pp 2-3 [Roach 2012].

[6] R v Gladue, [1999] 1 SCR 688; Michael Jackson, “Locking Up Natives in Canada” (1989) 23 UBC L Rev 215 at p 217-218; Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: Supply and Services Canada, 1996) [Bridging the Cultural Divide]; and Brian R Pfefferle, “Gladue Sentencing: Uneasy Answers to the Hard Problem of Aboriginal Over-Incarceration” (2006-2008) 32 Man LJ 113 at pp 113-117 [Pfefferle].

[7] R v Gladue, at para 65.

[8] S 35(2) of The Constitution Act, 1982. The decision R v Powley, 2003 SCC 43 indicates how to determine if a person or a group is part of the Métis. See also Aboriginal Affairs and Northern Development Canada, “Aboriginal Peoples and Communities”, online: < >.

[9] Indian status is determined by blood quantum according to s 6 of the Indian Act; it is a governmental form of recognition is thus sometime viewed as possessing tenuous legitimacy in the eyes of Aboriginal Communities. The decision Corbière v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 affirms the rights of off reserve members of First Nations. For more on Aboriginal identity see Sébastien Grammond, Identity Captured by Law, (Montréal/Kingston: McGill-Queen’s University Press, 2009).

[10] United Nations Development Group, Guidelines on Indigenous Peoples’ Issues, (New York: United Nations, 2009) at p 8. In the case of Métis it is the mix of Aboriginal and non-Aboriginal ancestry resulting in a distinct culture accordingly with the definition. The Guidelines recognizes that there are other definitions and that no definition is perfect.

[11] See R v Gladue, at paras 90-91.

[12] Data from Statistic Canada, “Aboriginal Population at a Glance”, online: < >.

[13] UN Special Rapporteur, supra note 4 at para 34.

[14] R v Gladue; R v Ipeelee, 2012 SCC 13; Bridging the Cultural Divide, supra note 6; AFN Submission, supra note 4; and Melissa S. Williams, “Criminal Justice, Democratic Fairness, and Cultural Pluralism: The Case of Aboriginal Peoples in Canada” (2001-2002) 5 Buff Crim L Rev 451 at 454.

[15] Ex: Canadian Corrections Association, Indians and the Law (Ottawa: Queen’s Printer, 1967); D. A. Schmeiser, The Native Offender and the Law (Ottawa: Law Reform Commission of Canada, 1974); Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People, vol 1 (Winnipeg: Public Inquiry into the Administration of Justice and Aboriginal People, 1991); Bridging the Cultural Divide, supra note 6.

[16] Statistic Canada, “Adult correctional services, admissions to provincial, territorial and federal programs”, online: < >; and Statistic Canada, “Youth correctional services, admissions to provincial and territorial programs, by province and territory”, online: < >.

[17] Idem. See also Jonathan Rudin, “Aboriginal Over-representation and R. v. Gladue: Where We Were, Where We Are and Where We Might Be Going”, in J. Cameron & J. Stribopoulos, eds.,  The  Charter and Criminal Justice: Twenty-Five Years Later, (Markham (ON): LexisNexis, 2008); Roger E. Boe, “Aboriginal inmates: Demographic trends and projections” (2000) 12(1) Forum on Corrections Research 7, Correctional Service of Canada; and R v Ipeelee, at para 62.

[18] Julian V. Roberts & Ronald Melchers, “The Incarceration of Aboriginal Offenders: Trends from 1978 to 2001” (2003) 45 Can J Crim & Crim Just 211; Jonathan Rudin, “Addressing Aboriginal Overrepresentation Post- Gladue: A Realistic Assessment of How Social Change Occurs” (2009) 54 Crim LQ 447; and R v Ipeelee, at para 62.

[19] Bridging the Cultural Divide, supra note 6 at p 309.

[20] Statistic Canada, “Adult Correctional Services in Canada, 2008/2009”, online: < > [Juristat].

[21] Nota bene: costs are split between the federal and the provincial government since the provincial governments have jurisdiction over sentence of less than 2 years, while the federal government has jurisdiction over the rest of the sentences: Roach 2012, supra note 5 at p 28; ss 91(28) & 92(6) of The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3; and s 743.1 of the Criminal Code, RSC 1985, c C-46.

[22] Juristat, supra note 20.

[23] Paula Mallea, The Fear Factor: Stephen Harper’s “Tough on Crime” Agenda, (Ottawa: Canadian Centre for Policy Alternative, 2010) at pp 24-29; and Safe Streets and Communities Act, SC 2012, c 1.

[24] Public Safety Canada, “Corrections and Conditional Release Statistical Overview”, online: < >. The date used is from 2008/2009 in order to compare it with Statistic Canada’s 2008/2009 data.

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