Corey Shefman is a lawyer for Indigenous peoples and organizations at Olthuis Kleer Townshend LLP.
Four years ago, I called attention to a staggering statistic: that 98 per cent of girls in Saskatchewan youth jails and upwards of 70 per cent of inmates in Manitoba jails were Indigenous. These were unacceptable rates by any measure. At the time, 43 per cent of women in federal prisons were Indigenous.
Now, Canada has crossed a terrible threshold: 50 per cent of all women in federal prisons are Indigenous, despite the fact that Indigenous women make up only 5 per cent of Canada’s total female population. Yet this shameful reality continues to be ignored by politicians, policy-makers and the Canadian public.
I used to think that the solution to the disproportionate overrepresentation of Indigenous people in Canadian jails and prisons was largely a policy problem – that by changing policies, and making sure that existing laws were enforced properly, Canada could address the crisis. But the time for incremental policy change has passed. We have known about the problem for decades. What Canada needs now is “decarceration” – and we need it urgently.
In 1999, the Supreme Court of Canada called the overrepresentation of Indigenous people a “crisis.” The federal and provincial/territorial governments have commissioned dozens of studies, inquiries and royal commissions over the years that have all raised similar concerns, such as when the Aboriginal Justice Inquiry declared: “The Canadian criminal justice system has failed the Aboriginal peoples of Canada.” The National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) also sounded the alarm on the high rates of Indigenous people in Canadian prisons: “It’s not that they’re inherently criminal,” said chief commissioner Marion Buller, “it’s that they’re poor.”
This is also not a problem that can be solved by the slow drip of pilot projects, policy and procedure changes, and “sensitivity training.” We’ve been there and done that, with civil society organizations, governments, judges and politicians that have repeated and revived them over the decades. Where they have been scaled and implemented meaningfully at all, they clearly did not have the intended effect; sometimes, they’ve even made things worse, as the Ontario government did when it claimed that substantial cuts to legal aid funding would make the justice system more “efficient,” or by creating specialty courts that divert some people from incarceration, but are so systemically underfunded that they create little more than the appearance of change.
A central feature of the inability of Canadian governments to meaningfully address the overrepresentation of Indigenous people in jails and prisons is that for Canada and its institutions, Indigenous peoples and their interests remain primarily a colonial concern, 155 years after Confederation.
Much of the Canadian economy is built on the exploitation of Indigenous lands without the consent of Indigenous peoples and without returning any benefits to Indigenous peoples. Efforts to engage in the so-called protection of Indigenous children through the foster-care system continues to result in the forced displacement of disproportionate numbers of Indigenous children from their families and communities to primarily non-Indigenous families disconnected from their culture and language – an active and immoral perpetuation of the legacy of residential schools and the “Sixties Scoop.” And Indigenous people are being criminalized and incarcerated at a rate that even the most dedicated cheerleaders for the colonial order being maintained would surely have difficulty justifying.
The solution that remains is systematic decarceration: the intentional and directed reduction of the number of Indigenous people in jails and prisons as a policy goal in and of itself.
This means ending the use of mandatory minimum sentences retroactively. It means that judges and Crown attorneys must ensure that the presumption of innocence is upheld. Most importantly, decarceration requires that alternatives to incarceration that address the underlying causes of too many Indigenous people becoming involved with the criminal justice system be prioritized. More immediately, when Crown counsel makes decisions about whether prosecuting certain offences is in the public interest – such as administration of justice offences and crimes of poverty – they must exercise their discretion to not lay charges, or stay charges laid by police.
Decarceration projects are being successfully implemented in some parts of the United States, and there is no principled reason why it could not be effective here as well.
The effects of colonialism are not merely a legacy of past wrongs. Colonialism is an ongoing project, perpetuated by federal, provincial and territorial governments, and that continues to penalize Indigenous peoples in Canada for the crime of merely existing.
Through decarceration, Canada may begin to forge a new path.
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