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Indigenous jail population: Prison reforms must go beyond justice

Last week, Australian Attorney-General George Brandis launched yet another inquiry into what he called a "national tragedy" – the country's exploding aboriginal prison population – and directed the Australian Law Reform Commission to come up with solutions to the crisis.

"The degree of civilization of any society can, among other things, be judged by looking at the condition of its prisons," Mr. Brandis said in handing the commission its mandate. "It is a sad reflection on Australia that our first peoples are so grossly overrepresented in our nation's prisons."

You could easily substitute Canada for Australia in the above sentence. Despite long ago recognizing the travesty of disproportionate indigenous incarceration, the aboriginal prison population has risen unabated in both countries. While they make up 4.3 per cent of Canada's population, First Nations, Métis and Inuit account for a quarter of inmates in federal prisons. In the past decade, the overall federal prison population rose by 10 per cent; aboriginal incarceration spiked by 50 per cent.

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Australia's statistics are even worse. Aboriginals make up 3 per cent of the national population, but represent 27 per cent of inmates. A 1991 royal commission into aboriginal deaths in custody led to a lot of soul-searching about how Australia treats its indigenous population, but did not stop the incarceration problem from metastasizing. A recent Australian Broadcasting Corporation investigation into the mistreatment of youth offenders led to the creation of a royal commission in the Northern Territory, where as many as 90 per cent of inmates are aboriginal.

In Canada, a 1999 Supreme Court ruling instructed judges to consider the case-specific factors of aboriginals in sentencing, such as the impact of residential schools on their families or communities, poverty and sexual abuse. While this was supposed to lead to more flexible sentencing for aboriginal offenders, including a greater emphasis on rehabilitation programs, the court found in 2012 that the so-called Gladue method had failed to take hold in the criminal justice system.

Canadians have too often witnessed instances of aboriginals winding up in jail for minor offences, only to see their already disadvantaged lives destroyed by a prison system ill-equipped to deal with the scars of poverty, abuse or lack of opportunity that landed them there in the first place. The appalling story of Adam Capay, the 24-year-old Ontario Ojibwa man who spent four years in solitary confinement in a provincial prison, should be the last straw.

Enter federal Justice Minister Jody Wilson-Raybould. Her mandate letter from Prime Minister Justin Trudeau instructed her to review the former Conservative government's criminal-justice reforms, with a view to reversing them. Ms. Wilson-Raybould has begun that process, announcing plans to roll back mandatory minimum sentencing laws adopted by the Conservatives and restoring judges' discretion to dole out punishments befitting not just the crime, but "the individual that is before them."

There is a risk that the Liberals will swing the pendulum too far in the other direction. The tough-on-crime Harper government overreached, but its reforms were a response to the very real sense among a plurality of Canadians that the criminal-justice system had become too lenient on the convicted while failing to provide justice for victims. A group of experts consulted by Ms. Wilson-Raybould to identify priorities for criminal-justice reform was conspicuously weighted in favour of criminal defence lawyers, while law enforcement, prosecutors and advocates for victims were given short shrift.

Mandatory minimum sentences are not the main reason the aboriginal inmate population continues to surge. The absence of alternatives to prison, including prevention, rehabilitation and restorative-justice programs, too often leaves judges with no option to incarceration. The dismal social conditions in remote First Nations communities, with poor health, education and employment opportunities, dictate a life trajectory that too often ends in a prison cell.

About half of Canada's 1.5 million aboriginals are under the age of 25 and the indigenous population is projected to grow at as much as twice the rate of the overall population over the next two decades. Without major changes, Canada will soon be facing an ever bigger aboriginal incarceration crisis.

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Ms. Wilson-Raybould gets this. But the Trudeau government will need to summon every possible resource at its disposal to do right by aboriginals. Criminal-justice reform is only one element of this project. But done correctly, it could help close the book on our very own "national tragedy."

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