How to stop the over-incarceration of Indigenous peoples

Another day, another Indigenous victim of violence, another Indigenous inmate. Indigenous people are two to three times more likely to be a victim of violence, as compared to the non-Indigenous. The proportion of Indigenous adults in custody is about nine times higher than their representation in the adult population (3 per cent).

The first statistic is a measure of socioeconomic tragedy and Crown depravity.

The second, Indigenous over-incarceration, has bedevilled Liberal justice ministers from Jean Chrétien through Allan Rock to Jody Wilson-Raybould.

It’s time for something radical. The number of Indigenous people jailed keeps going up and up, even while the overall number of inmates keeps going down. That’s insane. The Justin Trudeau government agrees — at the podium — but nothing to date has arrived in Parliament.

The last time the federal minister of justice amended the Criminal Code to reverse the trend of over-incarceration of Indigenous peoples in Canada, Rock was the minister, Chrétien the prime minister, and the Liberal government was determined to end the insanity of systemic discrimination. Next came the Supreme Court of Canada judgments seeking to put teeth on that Criminal Code provision. The decisions, called Gladue (2002) and Ipeelee (2012), were supposed to repudiate Indigenous overincarceration.

And then it got worse. Since 2012, the Indigenous inmate population increased by 21.3 per cent, while the non-Indigenous inmate population declined by 11.8 per cent. Today, 27.4 per cent of the prison population in Canada is Indigenous. Outside jails, they make up 3 per cent of Canada’s population. More than one in three female inmates in Canada is Indigenous. More than one in three prisoners in segregation is Indigenous. Canada is locking up its First Peoples at a rate that is criminal.

Radical change would mean, for example, that no Indigenous person could ever be incarcerated in Canada. That would do it. There would be no Charter rights infringed, because the only constitutional rights holders in our criminal justice system are the defendants.

Before you dismiss the idea out of hand, ask yourself: what’s more absurd, never incarcerating Indigenous peoples, or almost always incarcerating those convicted?

To reverse a systemic bias requires a reversal of the existing framework for sentencing people who are Indigenous. Before you bark out that canard about how everyone would claim Indigenous status with something so radical, think again. For those of us working in criminal courts, we know that 99 per cent of defendants’ ethnicity is selfevident. That’s why systemic bias is so pervasive. But the current law is namby pamby. It feebly expects sentencing judges to apply factors in the balancing act of sentencing, in a fashion that tilts against the system bias. There are three problems with that approach. Firstly, it failed. The stats got worse. Secondly, there is no balancing act to be done when a mandatory minimum sentence is applied (thanks to the Harper government, but still mercilessly pursued by federal and provincial prosecutors).

Thirdly, to imagine that a gentle adjustment in the balancing act would invert a system bias is wrong-headed. In hindsight, the Chrétien government and the Supreme Court of Canada did nothing more than place a pebble onto a justice scale outweighed by a boulder.

Throw out the pebble and insert the following boulder. Add a new section — section 718.22 — to the Criminal Code: “Notwithstanding anything in this Act (i.e., mandatory minimums don’t apply), when a court imposes a sentence on an Aboriginal offender, for an offence other than a primary designated offence (eg., terrorism, murder), the court shall not sentence an Aboriginal offender to imprisonment, except where justified by the Crown as necessary and proportionate, with particular attention to the systemic circumstances of Aboriginal offenders, and taking into account the following factors, where available and appropriate, with reduced reliance upon principles of general deterrence, and increased reliance upon principles of rehabilitation: restorative justice principles and processes; and culturally appropriate sentencing alternatives (e.g., sentencing circles).”

This flips the current law on its head. It forces prosecutors to prove why incarceration is necessary for the Indigenous person being sentenced, in the face of Indigenous over-incarceration. Start from a rebuttable presumption of non-incarceration for the Indigenous, except for the most serious crimes (called “primary designated offences” in the Criminal Code). Only such a radical change can reverse this God-awful trend.