Written by Safiyya Ahmad
While the BCCLA works towards systemic change in the criminal legal system, Canada’s use of mass incarceration against Indigenous people is a problem that is only worsening. In the past two decades, while the overall number of people imprisoned in Canada has decreased, the number of Indigenous people in prison continues to rise.
Where police are willing to issue warnings rather than arrests, where prosecutors are willing to stay charges, where courts are willing to encourage rehabilitation and diversion programs, or where prison guards are willing to show compassion, such allowances are rarely, if ever, being made for Indigenous people.
This illustrates the endurance of systemic racism and the urgent need for the Canadian government to make substantive reforms to the criminal legal system. The mass incarceration crisis requires enormous changes at every level.
To begin this process, the Canadian government must fulfil the calls for change made by the Truth and Reconciliation Commission (TRC), and National Inquiry into Missing and Murdered Indigenous Women and Girls (NIMMIWG).
Mass incarceration of Indigenous people and other marginalized groups is an indictment of Canada’s criminal legal system
Over twenty years ago, the Supreme Court declared that the over-representation of Indigenous people in Canadian prisons was a crisis for the criminal legal system.[1] In the past two decades, this crisis has grown significantly worse.
In December 2021, the number of Indigenous people in prisons reached a historic high at 32% of the federal prison population.[2] By contrast, Indigenous people comprise of 5% of Canada’s overall population.[3]
The mass incarceration of Indigenous women proved to be even more egregious: as of May 2022, 50% of the women in federal prisons were Indigenous, even though Indigenous women make up only 4% of Canada’s female population.[4]
In a 2021-2022 report, the Office of the Correctional Investigator found that Indigenous people faced the following challenges in the criminal legal system:[5]
- Higher rate of being held in custody, versus community supervision (68.3% in custody)
- More likely to be involved in an incident where prison staff made use of force (39%)
- Over-representation in maximum-security institutions (38%)
- More likely to be labelled by prison staff as affiliated with a Security Threat Group or gang within the prison (22% versus 9% for non-Indigenous)
- Serve a higher proportion of their sentence incarcerated (78.6%)
- Higher rate of having parole revoked (50%)
- More likely to self-injure (55% of all incidents), attempt suicide (40%), and over-representation in prison suicides over 2020-2021 (83%)
Systemic racism in the criminal legal system is not limited to Indigenous people. For example, Canadian courts have also recognized a similar crisis of over-representation for Black people in Canada’s prison system.[6] The Office of the Correctional Investigator report found that Black people comprise of 3.5% of Canada’s population, and yet they comprise of 9.2% of the total incarcerated population.[7] Some of the specific problems identified in the report include:[8]
- Over-representation at maximum-security institutions (14%)
- More likely to be involved in incidents where prison staff made use of force, regardless of risk level, security level, age, sentence length or gender (12%)
- More likely to be involuntarily transferred (14.6%)
- More likely to be institutionally charged (16.7%)
- More likely to be labelled by prison staff as affiliated with a Security Threat Group or gang within the prison (23.8%)
- Under-representation in prison industry jobs (7%)
- Under-representation in the highest inmate pay grade (3.7%)
- Assessment as “higher risk, low motivation, and low reintegration potential” despite overall lower recidivism and revocation rates
The Correctional Investigator Report details several examples of explicit racism, in addition to systemic problems. For instance, Black inmates reported the frequent use of racist and derogatory language from prison staff, unequal access to health care, and more institutional charges where prison staff have the freedom make these decisions.[9]
If we were in a crisis with regard to the mass incarceration of Indigenous, Black, and other marginalized people twenty years ago, Canada now faces a catastrophe, and one of its own making.
Canada must implement the TRC Calls to Action and the NIMMIWG Calls for Justice
The TRC released several reports and Calls to Action in 2015. The mass incarceration of Indigenous people was of significant concern in these reports, and the TRC made the following calls for change:[10]
30. We call upon federal, provincial, and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade, and to issue detailed annual reports that monitor and evaluate progress in doing so.
31. We call upon the federal, provincial, and territorial governments to provide sufficient and stable funding to implement and evaluate community sanctions that will provide realistic alternatives to imprisonment for Aboriginal offenders and respond to the underlying causes of offending.
32. We call upon the federal, provincial, territorial, and Aboriginal governments to commit to eliminating the overrepresentation of Aboriginal youth in custody over the next decade.
More recently, the NIMMIWG released its final report and Calls for Justice in 2019, specifically calling for the following changes:[11]
5.11 We call upon all governments to increase accessibility to meaningful and culturally appropriate justice practices by expanding restorative justice programs and Indigenous Peoples’ courts.
5.14 We call upon federal, provincial and territorial governments to thoroughly evaluate the impact of mandatory minimum sentences as it relates to the sentencing and over-incarceration of Indigenous women, girls, and 2SLGBTQIA people and to take appropriate action to address their over-incarceration.
The TRC and NIMMIWG both stress the need for alternatives to imprisonment, and their reports highlight the damaging impacts of incarceration on Indigenous peoples and their families, especially as it forms a continuation of colonial violence.
The TRC and NIMMIWG also make calls for change that would benefit other marginalized groups who have suffered from the rote use of incarceration. For example, the TRC Report calls for the following changes on the part of the federal government:[12]
32. […] to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.
33. […] to recognize as a high priority the need to address and prevent Fetal Alcohol Spectrum Disorder (FASD), and to develop, in collaboration with Aboriginal people, FASD preventive programs that can be delivered in a culturally appropriate manner.
Similarly, the NIMMIWG Calls to Justice make the following statements:[13]
4.1 We call upon all governments to establish a guaranteed annual livable income for all Canadians, including Indigenous Peoples, to meet all their social and economic needs. This income must take into account diverse needs, realities, and geographic locations.
5.20 […] to return women’s corrections to the key principles set out in Creating Choices (1990).
9.1 We call upon all police services to develop and implement guidelines for the policing of the sex industry in consultation with women engaged in the sex industry, and to create a specific complaints mechanism about police for those in the sex industry.
While the above changes are not a one-size-fits-all solution for all marginalized communities impacted by Canada’s mass incarceration crisis, if they were implemented, they could provide crucial opportunities and additional protections to enforce the rights of many beyond Indigenous people.
As Parliament is currently studying the bail system and its conditions for imprisoning people who are considered innocent before the law,[14] and in the wake of ongoing political momentum for stricter bail release rules,[15] we are concerned that if legislation amendments take away bail release options and make it easier for people on bail to be imprisoned, it will only worsen the mass incarceration crisis instead of reducing it.
The BCCLA has been and will continue to call on the Canadian government to make more concrete changes that take the lead from the TRC and NIMMIWG’s calls for change.
The second writing in our series details shortcomings of Bill C-5 (a recent attempt to address the mass incarceration crisis by amending the Criminal Code and Controlled Drugs and Substances Act), which passed into law in 2022.
Read Part 2: Bill C-5: Canada’s Failure to Address the Mass Incarceration of Indigenous Peoples.
[1] R v Gladue, 1999 CanLII 679 (SCC) at paras 63-64.
[2] Injustices and Miscarriages of Justice Experienced by 12 Indigenous Women, (16 May 2022) (Chair: Kim Pate) online: <https://sencanada.ca/media/joph5la2/en_report_injustices-and-miscarriages-of-justice-experienced-by-12-indigenous-women_may-16-2022.pdf> at 6 [12 Indigenous Women].
[3] Canada, 2021-2022 Annual Report of the Office of the Correctional Investigator Backgrounder, “Summary of Major Investigations, Findings and Recommendations” (1 November 2022) <https://oci-bec.gc.ca/cnt/comm/presentations/presentationsar-ra2022info-eng.aspx?> accessed 5 January 2023 [2021-2022 Correctional Investigator Report].
[4] 12 Indigenous Women, supra note 3 at p. 3; see also Canada, Office of the Correctional Investigator, “Proportion of Indigenous Women in Federal Custody Nears 50%: Correctional Investigator Issues Statement” (17 December 2021) <www.oci-bec.gc.ca/cnt/comm/press/press20211217-eng.aspx> accessed 16 December 2022.
[5] 2021-2022 Correctional Investigator Report, above at note 4.
[6] R v Morris, 2021 ONCA 680; see also R v Jackson, 2018 ONSC 2527.
[7] 2021-2022 Correctional Investigator Report, above at note 4.
[8] 2021-2022 Correctional Investigator Report, above at note 4.
[9] 2021-2022 Correctional Investigator Report, above at note 4.
[10] Canada, Truth and Reconciliation Commission of Canada, Calls to Action (Winnipeg: Truth and Reconciliation Commission of Canada, 2012) at p. 3-4 <https://nctr.ca/records/reports/#trc-reports> [Truth and Reconciliation Commission Report].
[11] Canada, National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report on the National Inquiry Into Missing and Murdered Indigenous Women and Girls, Vol 1b (2015) (Chief Commissioner: Marion Buller), online: <www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Final_Report_Vol_1b.pdf> [NIMMIWG Report].
[12] Truth and Reconciliation Commission Report, above at note 9.
[13] NIMMIWG Report, above at note 10.
[14] Canada, House of Commons Standing Committee on Justice and Human Rights, Canada’s Bail System, 44-1, (15 February 2023 to present), online: <https://www.ourcommons.ca/Committees/en/JUST/StudyActivity?studyActivityId=12025820> accessed 28 March 2023.
[15] Spencer Van Dyk, “‘Bringing it back into balance’: Provinces welcome bail reform promise, continue to push for reverse onus”, (11 March 2023), online: CTV News <https://www.ctvnews.ca/politics/bringing-it-back-into-balance-provinces-welcome-bail-reform-promise-continue-push-for-reverse-onus-1.6309304> accessed 28 March 2023.
Canada’s Mass Incarceration of Indigenous Peoples – Part 1
Written by Safiyya Ahmad
While the BCCLA works towards systemic change in the criminal legal system, Canada’s use of mass incarceration against Indigenous people is a problem that is only worsening. In the past two decades, while the overall number of people imprisoned in Canada has decreased, the number of Indigenous people in prison continues to rise.
Where police are willing to issue warnings rather than arrests, where prosecutors are willing to stay charges, where courts are willing to encourage rehabilitation and diversion programs, or where prison guards are willing to show compassion, such allowances are rarely, if ever, being made for Indigenous people.
This illustrates the endurance of systemic racism and the urgent need for the Canadian government to make substantive reforms to the criminal legal system. The mass incarceration crisis requires enormous changes at every level.
To begin this process, the Canadian government must fulfil the calls for change made by the Truth and Reconciliation Commission (TRC), and National Inquiry into Missing and Murdered Indigenous Women and Girls (NIMMIWG).
Mass incarceration of Indigenous people and other marginalized groups is an indictment of Canada’s criminal legal system
Over twenty years ago, the Supreme Court declared that the over-representation of Indigenous people in Canadian prisons was a crisis for the criminal legal system.[1] In the past two decades, this crisis has grown significantly worse.
In December 2021, the number of Indigenous people in prisons reached a historic high at 32% of the federal prison population.[2] By contrast, Indigenous people comprise of 5% of Canada’s overall population.[3]
The mass incarceration of Indigenous women proved to be even more egregious: as of May 2022, 50% of the women in federal prisons were Indigenous, even though Indigenous women make up only 4% of Canada’s female population.[4]
In a 2021-2022 report, the Office of the Correctional Investigator found that Indigenous people faced the following challenges in the criminal legal system:[5]
Systemic racism in the criminal legal system is not limited to Indigenous people. For example, Canadian courts have also recognized a similar crisis of over-representation for Black people in Canada’s prison system.[6] The Office of the Correctional Investigator report found that Black people comprise of 3.5% of Canada’s population, and yet they comprise of 9.2% of the total incarcerated population.[7] Some of the specific problems identified in the report include:[8]
The Correctional Investigator Report details several examples of explicit racism, in addition to systemic problems. For instance, Black inmates reported the frequent use of racist and derogatory language from prison staff, unequal access to health care, and more institutional charges where prison staff have the freedom make these decisions.[9]
If we were in a crisis with regard to the mass incarceration of Indigenous, Black, and other marginalized people twenty years ago, Canada now faces a catastrophe, and one of its own making.
Canada must implement the TRC Calls to Action and the NIMMIWG Calls for Justice
The TRC released several reports and Calls to Action in 2015. The mass incarceration of Indigenous people was of significant concern in these reports, and the TRC made the following calls for change:[10]
30. We call upon federal, provincial, and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade, and to issue detailed annual reports that monitor and evaluate progress in doing so.
31. We call upon the federal, provincial, and territorial governments to provide sufficient and stable funding to implement and evaluate community sanctions that will provide realistic alternatives to imprisonment for Aboriginal offenders and respond to the underlying causes of offending.
32. We call upon the federal, provincial, territorial, and Aboriginal governments to commit to eliminating the overrepresentation of Aboriginal youth in custody over the next decade.
More recently, the NIMMIWG released its final report and Calls for Justice in 2019, specifically calling for the following changes:[11]
5.11 We call upon all governments to increase accessibility to meaningful and culturally appropriate justice practices by expanding restorative justice programs and Indigenous Peoples’ courts.
5.14 We call upon federal, provincial and territorial governments to thoroughly evaluate the impact of mandatory minimum sentences as it relates to the sentencing and over-incarceration of Indigenous women, girls, and 2SLGBTQIA people and to take appropriate action to address their over-incarceration.
The TRC and NIMMIWG both stress the need for alternatives to imprisonment, and their reports highlight the damaging impacts of incarceration on Indigenous peoples and their families, especially as it forms a continuation of colonial violence.
The TRC and NIMMIWG also make calls for change that would benefit other marginalized groups who have suffered from the rote use of incarceration. For example, the TRC Report calls for the following changes on the part of the federal government:[12]
32. […] to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.
33. […] to recognize as a high priority the need to address and prevent Fetal Alcohol Spectrum Disorder (FASD), and to develop, in collaboration with Aboriginal people, FASD preventive programs that can be delivered in a culturally appropriate manner.
Similarly, the NIMMIWG Calls to Justice make the following statements:[13]
4.1 We call upon all governments to establish a guaranteed annual livable income for all Canadians, including Indigenous Peoples, to meet all their social and economic needs. This income must take into account diverse needs, realities, and geographic locations.
5.20 […] to return women’s corrections to the key principles set out in Creating Choices (1990).
9.1 We call upon all police services to develop and implement guidelines for the policing of the sex industry in consultation with women engaged in the sex industry, and to create a specific complaints mechanism about police for those in the sex industry.
While the above changes are not a one-size-fits-all solution for all marginalized communities impacted by Canada’s mass incarceration crisis, if they were implemented, they could provide crucial opportunities and additional protections to enforce the rights of many beyond Indigenous people.
As Parliament is currently studying the bail system and its conditions for imprisoning people who are considered innocent before the law,[14] and in the wake of ongoing political momentum for stricter bail release rules,[15] we are concerned that if legislation amendments take away bail release options and make it easier for people on bail to be imprisoned, it will only worsen the mass incarceration crisis instead of reducing it.
The BCCLA has been and will continue to call on the Canadian government to make more concrete changes that take the lead from the TRC and NIMMIWG’s calls for change.
The second writing in our series details shortcomings of Bill C-5 (a recent attempt to address the mass incarceration crisis by amending the Criminal Code and Controlled Drugs and Substances Act), which passed into law in 2022.
Read Part 2: Bill C-5: Canada’s Failure to Address the Mass Incarceration of Indigenous Peoples.
[1] R v Gladue, 1999 CanLII 679 (SCC) at paras 63-64.
[2] Injustices and Miscarriages of Justice Experienced by 12 Indigenous Women, (16 May 2022) (Chair: Kim Pate) online: <https://sencanada.ca/media/joph5la2/en_report_injustices-and-miscarriages-of-justice-experienced-by-12-indigenous-women_may-16-2022.pdf> at 6 [12 Indigenous Women].
[3] Canada, 2021-2022 Annual Report of the Office of the Correctional Investigator Backgrounder, “Summary of Major Investigations, Findings and Recommendations” (1 November 2022) <https://oci-bec.gc.ca/cnt/comm/presentations/presentationsar-ra2022info-eng.aspx?> accessed 5 January 2023 [2021-2022 Correctional Investigator Report].
[4] 12 Indigenous Women, supra note 3 at p. 3; see also Canada, Office of the Correctional Investigator, “Proportion of Indigenous Women in Federal Custody Nears 50%: Correctional Investigator Issues Statement” (17 December 2021) <www.oci-bec.gc.ca/cnt/comm/press/press20211217-eng.aspx> accessed 16 December 2022.
[5] 2021-2022 Correctional Investigator Report, above at note 4.
[6] R v Morris, 2021 ONCA 680; see also R v Jackson, 2018 ONSC 2527.
[7] 2021-2022 Correctional Investigator Report, above at note 4.
[8] 2021-2022 Correctional Investigator Report, above at note 4.
[9] 2021-2022 Correctional Investigator Report, above at note 4.
[10] Canada, Truth and Reconciliation Commission of Canada, Calls to Action (Winnipeg: Truth and Reconciliation Commission of Canada, 2012) at p. 3-4 <https://nctr.ca/records/reports/#trc-reports> [Truth and Reconciliation Commission Report].
[11] Canada, National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report on the National Inquiry Into Missing and Murdered Indigenous Women and Girls, Vol 1b (2015) (Chief Commissioner: Marion Buller), online: <www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Final_Report_Vol_1b.pdf> [NIMMIWG Report].
[12] Truth and Reconciliation Commission Report, above at note 9.
[13] NIMMIWG Report, above at note 10.
[14] Canada, House of Commons Standing Committee on Justice and Human Rights, Canada’s Bail System, 44-1, (15 February 2023 to present), online: <https://www.ourcommons.ca/Committees/en/JUST/StudyActivity?studyActivityId=12025820> accessed 28 March 2023.
[15] Spencer Van Dyk, “‘Bringing it back into balance’: Provinces welcome bail reform promise, continue to push for reverse onus”, (11 March 2023), online: CTV News <https://www.ctvnews.ca/politics/bringing-it-back-into-balance-provinces-welcome-bail-reform-promise-continue-push-for-reverse-onus-1.6309304> accessed 28 March 2023.
CIVIL LIBERTIES CAN’T PROTECT THEMSELVES