What does justice for Indigenous people look like? It ain’t pretty!

Compared to all other categories of accused persons, Indigenous people continue to be jailed younger, denied bail more frequently, granted parole less often and hence released later in their sentence, over-represented in segregation, overrepresented in remand custody, and more likely to be classified as higher risk offenders. 

Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System“. Department of Justice. (Modified) April 12, 2019

Justice is one of those words that defines how healthy and humane a society and ultimately, a civilization, really is: is it impartial, transparent and applied equally to all of its members. If it is not, why not? A failure to acknowledge and address in a constructive and meaningful way any structural – or systemic – barriers that serve to marginalize or disenfranchise anyone would not be tolerated by any society that was committed to the common good. That being said, what are the unacknowledged motivations – and beliefs – within the dominant power structures that inhibit and/or prevent an honest examination of how they perpetuate the status quo that for the most part keeps Indigenous people marginalized and underserved in the basics of human existence:

First Nations peoples receive significantly less government funding for programs and services per capita ($8,400) when compared with Canadians who receive $18,178 per capita in federal, provincial and municipal spending. In recent years, Canada has ranked between 6th and 12th on the UN Human Development Index while First Nations fall between 63rd and 78th. The federal government’s Community Well-Being Index shows that the gap has not changed since 1981.

AFN National Chief Perry Bellegarde “Honouring the Promises: 2019 Federal Election Priorities for First Nations and Canada”

In June 2015, the Truth and Reconciliation Commission released its Summary Report with Call to Action # 30 and Call to Action # 38 addressed to all levels of government – federal, provincial and territory – to:

  • “Commit to eliminating overrepresentation of Aboriginal people in custody over the next decade” (C2A # 30)
  • Commit to eliminating overrepresentation of Aboriginal youth in custody over the next decade” (Call to Action # 38)

So, how is Canada doing now that we are now half-way through Year 6 of the decade since the TRC issued its Summary Report? The answer can be found through three distinct lenses that focus the reality of the recent past through the impartial and transparent world of statistics alongside those current policy decisions and actions of federal and provincial governments over the last year:

  1. Office of the Correctional Services of Canada reporting on the growth of Indigenous incarceration rates from 2010 through 2020
  2. Documented problems and issues with excessive use of force and systemic discrimination with police forces across Canada including the RCMP from January 2020 through January 2021
  3. Youth incarceration statistics from 2006 through 2017 and Indigenous youth perspectives on how reconciliation is working

As noted, the picture ain’t pretty. The trajectory for reconciliation is headed in the wrong direction:

  • The incarceration of Indigenous people is getting worse. More and more are going to jail year after year
  • The incarceration of Indigenous youth is getting worse. More and more are going to jail year after year
  • Of 15 examples of excessive use of force and systemic racism in police forces in 2020, 12 have had negative outcomes of varying degrees that reflect a fundamental lack of will to address the underlying issues of systemic racism and discrimination
  • Of 16 examples of policy decisions or government actions, ALL have had or will have negative outcomes for Indigenous people

Office of the Correctional Investigator

On January 21, 2020, Dr. Ivan Zinger, the Correctional Investigator validated the findings of “Spotlight on Gladue” mentioned above as well as the following statistics:

Office of the Correctional Investigator, Government of Canada. Jan. 21, 2020

Indigenous women represent 42% of all adult women in custody.

Dr Zinger also noted that “on this trajectory, the pace is now set for Indigenous people to comprise 33% of the total federal inmate population in the next three years.

Current Problems and Issues in Indigenous Justice

In the 15 months since November 2019 there have been 15 specific incidents in multiple jurisdictions – federal, provincial and territory – of excessive use of force and/or systemic racism by the RCMP and other police forces against Indigenous people (Justice Calls to Action). These concrete examples of “Current Problems and Issues in Indigenous Justice” are a reflection, unfortunately, of how persistent many of the barriers to reconciliation within policing still are even AFTER the conclusions cited above by the Correctional Investigator about systemic racism. Consider the outcomes of the 15 incidents:

  • Advancing Reconciliation = 3
  • Blocking Reconciliation = 12

What these incidents indicate, unfortunately, is an almost universal unwillingness of the responsible authorities to address the underlying issues that perpetuate the problems.

RCMPWhat is the issue?Description
BCRCMP spying on Indigenous and climate advocatesBC Civil Liberties Association launch lawsuit against RCMP Commissioner for delays in releasing report
BCArrest of Wet’suwet’en land defenders on their territoryRCMP were enforcing an existing court injunction granted to Coastal Gas Link. No consequences. BC Government is silent
AlbertaAttack on First Nation Chief Allan AdamCharges against Chief Adam dropped. Province opened an online survey as part of review of the Police Act. No independent investigation
ManitobaIndigenous woman knocked out in RCMP stationNo formal investigation launched by the RCMP who pressured women to withdraw charges
New BrunswickShooting deaths of two Indigenous people in 8 daysGovernment refuses to call an independent investigation, fires Minister of Indigenous Affairs who supports calling one
NunavutInuit man knocked down by open door of moving truck No charges against RCMP officer driving the truck who was making a lawful arrest. Determined to be an accident
Nfld & LabradorNunatsiavut Govt calls for investigation into death of 23-year-old Inuk womanRCMP concludes nothing suspicious despite multiple requests for an independent investigation
Other Police Forces
Winnipeg3 Indigenous people killed including a 16-year old girlUnder investigation by Manitobas Child and Youth Advocate and Manitoba’s Independent Investigation Unit. No independent inquiry.
VancouverIssues with independent review of street checksGovernment has appointed a former Information and Privacy Commissioner to review the Street Check report
MontrealMontreal street checks disproportionately target Indigenous peopleCity of Montreal releases its “Reconciliation Strategy for Indigenous People“. Has full support or AFNQL
TorontoDeath of Regis Korchinski-Paquet in the presence of 7 Toronto police officersNo charges laid against any of the 7 police officers. Report acknowledges systemic racism. Police spend $34M on body cameras and enhance mobile crisis intervention team
OPPArrests of Indigenous journalists including at 1492 Land Back LaneJournalists have also been arrested at Wet’suwet’en, Muskrat Falls. OPP have refused comment. Provincial government is silent.
Systemic racism issues
OntarioBarbara Kentner death after being hit by trailer hitchInitial second-degree murder charge reduced to manslaughter. Brayden Bushby convicted
BCInjunctions criminalize Anuk ‘nu’at’enAnuk ‘nu’at’en (Wet’suwet’en law) is being broken by the RCMP, Coastal GasLink and the government of Canada
QuebecRelease of “Racism in Quebec: ZERO ToleranceGovernment refuses to accept that systemic racism exists in Quebec despite the 142 recommendations of the Viens Commission that provides evidence that it does

The above refers specifically to specific police forces across Canada including the RCMP. What else has happened that offers additional insight into how government power brokers react to Indigenous issues. The following highlights 16 additional actions that have ALL had NEGATIVE outcomes for Indigenous people that can be categorized as:

  • Continuous denial that systemic racism and discrimination even exists
  • Institutional reform in policing to change endemic attitudes, beliefs and behaviour
  • Actions to curtail Indigenous protests to protect colonial economic interests
  • Ignoring the inherent human rights of Indigenous People
  • Refusal to acknowledge Aboriginal Rights and Treaty

Continuous denial that systemic racism and discrimination even exists

IssueDescription
Use of Custody Rating ScaleJan. 12, 2021 – Class action lawsuit arguing systemic bias in risk assessment tool used by Correctional Service Canada resulting in harsher security ratings against racialized and female inmates especially Indigenous men and women who are over-represented
Systemic racism in QuébecDec. 15, 2020 – Release of “Racism in Québec: ZERO TOLERANCE: Report of the Groupe d’action contre le racism” with 12 recommendations with no input from Indigenous people in Québec. Viens Commission issued 142 Calls to Action to address Québec’s widespread systemic racism
Systemic racism in QuébecSept. 29, 2020 – Assembly of First Nations Quebec-Labrador released “Action Plan on Racism and Discrimination” with 39 recommendations and 41 actions vs the official government response that listed only 12 recommendations and with no Indigenous input
MMIWG Class action lawsuit Sept. 25, 2020 – Federal government argues in court that Indigenous women and girls “do not face a “special threat from a special source” and are not unique victims of criminal violence despite overwhelming evidence and the 231 Calls to Justice of the MMIWG Inquiry

Institutional reform in policing to change attitudes, beliefs and behaviour

Issue?Description
Systemic Racism in RCMPOct. 27, 2020 – Assembly of First Nations presents a list of Indigenous expectations to address systemic racism in RCMP after multiple incidents across Canada involving excessive use of force
Systemic racism in policingAug, 31, 2020 – MacDonald-Laurier Institute’s report “Systemic racism in policing in Canada and approaches to fixing it,” highlights recommendations and reforms to address systemic racism in policing from leadership positions to rank and file officers
CBC Deadly Force databaseJuly 23, 2020 – Database indicates that the RCMP are 3x more likely to use lethal force than other police forces in Canada. Indigenous people form 16 per cent of the deaths but only 4.21 per cent of the population (annualized over 20 years).
Indigenous police forceSept. 27, 2020 – Indigenous police forces are the only police service in Canada not designated an essential service resulting in underfunded and under resourced policing for reserve communities.

Actions to curtail Indigenous protests to protect colonial economic interests

What is the issue?Description
Indigenous Shale gas protestsNov. 12, 2020 – Civilian Review and Complaints Commission report raised some serious concerns over RCMP responses to Indigenous protests over shale gas exploration in 2013
Critical Infrastructure Defence ActJune 11, 2020 – The bill was introduced in response to Wet’suwet’en Coastal GasLink protests in BC. and impacts Indigenous rights and title given the governments lack of consultation on major projects

Numerous other examples documented in “Current Problems and Issues” under Health, UNDRIP and Royal Proclamation and Covenant of Reconciliation describe government actions to outlaw and prevent peaceful Indigenous protests or to use COVID-19 as a mechanism to fast track resource extraction projects on Indigenous land and override the Duty to Consult to advance provincial economic interests.

Ignoring Human Rights of Indigenous People

What is the issue?Description
Ignoring UNDRIP and COVID-19Nov. 12, 2020 – 24 civil society groups condemn Federal, Provincial, and Territory Ministers responsible for Human Rights for ignoring UNDRIP and impacts of COVID-19 on human rights of Indigenous and other groups
Prisoner VaccinationsJan. 6, 2021 – Erin O’Toole, leader of Conservative Party opposes vaccine for any at risk prisoners. Indigenous people make up the largest at risk population of inmates: 30% in total; 42% for Indigenous women in federal prisons.
Release of low-risk inmates due to COVID-19April 17, 2020 – 40% of the confirmed cases of COVID-19 at Mission Institution are among Indigenous inmates who make up just 5% of the population. Between February and April 2020 only 1% of inmates at federal prisons vs 25% from provincial jails were released
Lack of Inuit women’s sheltersJune 2, 2020 – Governments $85M in funding for Indigenous women’s shelters across Canada for First Nations and Métis excludes Inuit women in the north who face violence at a rate 14 times greater than other women in Canada.

Refusal to acknowledge Aboriginal Rights and Treaty

What is the issue?Description
Implementing Ipperwash Inquiry recommendationsSept. 7, 2020 – On 25th anniversary of Ipperwash, Chiefs of Ontario call on Ontario to fully implement all 100 recommendations including creation of a Treaty Commission of Ontario and permanent tripartite body to deal with land claims and assertions of treaty rights and title
Recognition of Aboriginal Rights and TitleSept. 21, 2020 – Supreme Court of Canada to hear arguments that Indigenous laws are equal to English Common Law and French Civil Law that have been consistently denied by all levels of government since confederation in 1867
Trans Mountain pipeline expansionJuly 2, 2020 – Supreme Court of Canada refuses to hear Indigenous appeal of federal governments approval of Trans Mountain pipeline expansion

Numerous other examples document “Current Problems and Issues” under UNDRIP and Royal Proclamation and Covenant of Reconciliation describe numerous government actions across multiple jurisdictions where Aboriginal Rights and Title are dismissed, denied, overruled or simply ignored. As virtually all levels of government – federal and provincial – categorically proclaim: “This land is our land and not yours”. And therein lies the most fundamental roadblock to reconciliation. As prosecutors are fond of saying, “Follow the money” if you want to find evidence of a crime.

Indigenous Youth and Justice

According to the 2016 census, the Indigenous population in Canada has grown by 42.5% since 2006 – more than 4x the growth rate for the non-indigenous population and now equal to 4.9% of Canada’s total population including:

  • 0 – 14 years old = 26.2%
  • 15 – 24 years old = 17.3%

So Indigenous Youth between the ages of 0 – 25 represent 46.2% of the Indigenous population in Canada and 8.8% of the population in Canada. They also represent the fastest growing demographic in Canada and not coincidentally also represent the most incarcerated percentage of inmates in youth correctional institutes.

https://www150.statcan.gc.ca/n1/pub/85-002-x/2018001/article/54972/tbl/tbl13-eng.htm

Youth Perceptions on Indigenous relations with government haven’t changed in 30 years:

“Sadly, as we head towards the 1990s, we, the people of the First Nations, have to admit that our relations with Canadian government have never been worse. Our rising expectations of recent decades, our hopes for a better future, have unfortunately turned out to be illusory, shattered by the grim reality that governments…are still not ready to work honestly with us to resolve issues that have been outstanding for centuries.” George Erasmus. Former National Chief Assembly of First Nations. 1989.

Almost 30 years later, despite many apologies and acknowledgements, countless reports and recommendations, and an overwhelming use of the word ‘reconciliation’ by the Canadian government today, many Indigenous people, especially Indigenous youth, still remain skeptical, if not completely disillusioned, by the notion of reconciliation.

“Indigenous Youth Voices. A Roadmap to the Truth and Reconciliation Call to Action # 66. June 2018”

The trajectory for Indigenous youth is going in the same direction as that of the Indigenous adults as highlighted by Dr. Ivan Zinger, Office of the Correctional Investigator. This is all almost six years AFTER the Truth and Reconciliation released their Calls to Action including Call to Action # 38:

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.

How have things progressed since the Truth and Reconciliation Commission Summary Report issued in 2015?

Indigenous Youth Voices

CALL TO ACTION # 66

We call upon the federal government to establish multi-year funding for community-based youth organizations to deliver programs on reconciliation, and establish a national network to share information and best practices

Youth are at the heart of the TRC Call to Action #66 – as is justice. Indigenous youth have a right to access opportunities that go beyond basic human needs; we have a right to opportunities that support us to thrive and fulfill our dreams.

On November 30th of 2016, the Minister of Crown-Indigenous Relations and Northern Affairs, Carolyn Bennett, announced the formation of the Indigenous Youth Council to provide recommendations on how to implement the Truth and Reconciliation Commission of Canada (TRC) Call to Action #66. The three Indigenous youth, Maatalii Okalik (Inuit), Gabrielle Fayant (Métis) and André Bear (First Nations) submitted their report “Indigenous Youth Voices: A Roadmap to the Truth and Reconciliation Commission Call to Action # 66” in June 2018. The report is centered around the following five themes:

  • Acknowledging the Past
  • Healing
  • Improving Relations
  • Treaty and Land Rights
  • Equity

They also recommended the establishment of Indigenous Youth Voices as a permanent, arms-length, non-profit, national agency, with a mandate to inform, implement, and build on the Truth and Reconciliation Call to Action #66. Instead of following the advice and recommendations of the Indigenous Youth Council funded through an arms-length foundation “that does not have a sunset clause, nor is dependent on a particular party being in power”, the government’s response:

Create a “pilot” program through the Canadian Roots Foundation with funding of $15.2M over three years beginning in the 2019 fiscal year. The government also launched the Canada Service Corps with initial funding of $105M over 5 years with “up to” $5.25M per year to be allocated to Indigenous youth projects that advance reconciliation with “up to” $6.25M per year ongoing.

That’s not much of a commitment! It’s more of “the same old same old” approach to tackling problems. As the Indigenous Youth Council stated in their report:

It is also important for us to emphasize that unless the systemic racism and structural violence entrenched in Canada’s government and institutions is addressed, the vision of, and reason for, the Truth and Reconciliation Call to Action #66 is greatly compromised.

Indeed. The same old same old seems to be the mantra of the day lulling us all into a somnolent belief that progress is being made when, in fact, it is not.

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