Why are Indigenous people over-incarcerated in Canada?

On TVO Today’s “NDN POV,” Indigenous experts discuss the causes of the problem — and what can be done to make change

three people look at the camera with a stylized background. text reads "Indigenous over incarceration"

Indigenous people represent just 5 per cent of Canada’s population, yet 32 per cent of those incarcerated in federal prisons are Indigenous. (Jasmine El Kurd)

NationTalk: TVO – Indigenous people represent just 5 per cent of Canada’s population, yet 32 per cent of those incarcerated in federal prisons are Indigenous. That number is worse in provincial jails, jumping to 42 per cent — and those inmates have worse correctional outcomes.

This isn’t a new problem; it’s been making headlines for decades. What are the causes? And why is it so persistent?

TVO Today’s NDN POV examines the issue — and what can be done to solve it.

Explaining the problem

Howard Sapers, the former correctional investigator of Canada, says that Indigenous over-incarceration, once “a slow boiling crisis,” is “on full boil now.”

This crisis is worse for Indigenous women, says Sapers: “Indigenous women are actually the fastest-growing subpopulation of people going into federal custody.” Today, more than half of all women in Canadian prisons are Indigenous.

“We’re seeing women increasingly being held in higher security levels and, interestingly, more frequently inter-regionally transferred,” he says.

That means Indigenous women are increasingly being transferred to prisons that are far away from their communities, cultural supports, and families.

There are only five federal prisons for women in the country, Sapers says, which means that someone transferred from Edmonton might end up in Nova Scotia or Quebec.

Retired Anishnaabe judge Harry LaForme says that Indigenous people face overlapping institutional challenges that can lead to increased incarceration — perhaps most notably, how the population is policed. “It’s not that Indigenous people are more prone to committing crimes. They get policed more,” he says. “The Department of Justice even did its own study and came up with that conclusion.”

It doesn’t stop there. Sapers says that Indigenous inmates are “held for longer periods of time before conditional release or parole. They’re held at higher security levels. They don’t have as much access to programs. And all too often, they’re held in segregation in something called a structured intervention unit.”

Indigenous prisoners occupy 44 per cent of all structured intervention units, which replaced segregation units when those were outlawed in 2019 due to the harmful effects of isolation. Even with reduced isolation, time in an SIU often leads to psychological distress, especially with a population that already suffers complex trauma stemming from colonization.

In a press conference last year, Ivan Zinger, the correctional investigator of Canada, said the treatment of Indigenous people in the justice system is a human-rights travesty and one of Canada’s most pressing human-rights issues — and it’s not new: “The discriminatory treatment of Indigenous persons in federal custody was among the first set of issues raised by my office when it was created 50 years ago. In the decades that follow, my office has issued more than 70 recommendations specific to Indigenous corrections. Sadly, most of these calls have gone unanswered.”

Pam Palmater, the chair in Indigenous governance at Toronto Metropolitan University, says that makes this issue particularly frustrating. “Everybody knows about it,” she says. “The government knows about it. The corrections institutions, the police forces, the United Nations has called out Canada on it. And very little, if anything, has been done. In fact, over the last 30 years, the incarceration rate continues to soar.”

“The justice system is racist from the top to the bottom against Indigenous people,” says LaForme.

Colonialism’s role

According to a report from the Royal Commission on Aboriginal Peoples, “the most fundamental explanation for Indigenous overrepresentation in the criminal justice system is colonialism.” pa

“In order to truly understand the over-incarceration of Indigenous peoples in Canada,” says Palmater, “you have to go back to contact. When colonial governments established themselves on native territories in order to steal our territories and our resources, they had to find ways to oppress us, contain us, control us, and remove us from those territories: trapping us on reserves, sending our kids to residential schools, scalping bounties, forced sterilizations.”

“It’s always for the same purpose: to get our lands and resources.”

Why this matters

According to Palmater, “the over-incarceration of Indigenous peoples in Canada is a form of genocide — and it’s a series of grave human-rights violations.”

The results can be far-reaching. “Does systemic discrimination and bias exist in our systems?” asks Sapers. “The answer is definitive. It’s yes. You can see all of this dislocation from community, from place. Being disempowered in terms of economic participation. Even access to education and sometimes to health care. All of these things, taken together, have created a big gap in outcomes between what an Indigenous young man or young woman can expect in their lifetime versus a non-Indigenous Canadian can expect in their lifetime. These have been called Gladue factors.”

Gladue refers to R. v. Gladue, a 1999 Supreme Court decision that advises considering an offender’s background when sentencing and exercising restraint when considering imprisonment. It was based on a Criminal Code provision designed in part to account for the effects of colonization and was intended as a response to the over-incarceration crisis.

The Gladue decision encourages courts to consider alternatives to imprisonment, such as restorative justice.

“When an Indigenous person is before the courts, particularly at a time of sentencing, you could ask for a special kind of pre-sentence report, called a Gladue report, where you would explore the impact of that colonial history on this individual who’s before a judge for sentencing,” says Sapers. “That may include details about family dysfunction, early substance abuse, violent episodes, dislocation, lack of employment, lack of educational attainment, some mental-health issues. Then some adjustment might be made in terms of sentencing or the nature of how a sentence should be administered.”

“A lot of people don’t like it,” says LaForme. “They see this Gladue principle as nothing more than a get-out-of-jail-free card. [they think] It gives a free pass to Indigenous people. That’s not true. The whole point of Gladue was to ameliorate the problems in our justice system.”

Experts argue that the decision is not always used as intended. “When that Gladue report is shared with corrections, all of those things become risk factors,” says Sapers.

LaForme agrees. “They use the Gladue reports as a sword instead of a shield at sentencing to say, ‘This is evidence of your likelihood to reoffend.’”

“When you think about how colonization works, it’s not just one incident of racism or discrimination. It’s literally a pipeline to all of the issues that we have today,” says Palmater. “If you steal a child from a First Nation family and that child goes into foster care, we know from the statistics they’re far more likely to end up in youth corrections or homeless or trafficked.”

Two-thirds of all Indigenous inmates have been in foster care at some point in their childhood. That’s compared to about one-third of non-Indigenous inmates.

“Once you’re in youth corrections, you’re far more likely to end up in prison as an adult,” says Palmater. “And then once you’re in adult corrections, you’re far more likely to have charges stacked up against you and serve longer sentences, and you’re far more likely to live your life in prison.”

What can be done?

In the same press conference, Zinger said it is “imperative that the Government of Canada makes good on the many repeated calls to action and commitments to reduce overrepresentation by implementing an Indigenous decarceration strategy — the general aim of which would be to reallocate resources from penitentiaries to community-based reintegration efforts.”

This is not a new idea. The Corrections and Conditional Release Act from 1992 acknowledges these issues, allowing for offenders to be released into the care of Indigenous communities. However, Sapers says, “there has been limited use of these provisions.”

“We have to get out of the way, and we have to let Indigenous communities and nations take back control of how they want to respond to crime and social disharmony in their own communities,” says Sapers.

In a statement to TVO Today, the Correctional Service of Canada says, “The Government of Canada and the Correctional Service of Canada (CSC) remain committed to taking meaningful action to address the over-representation of Indigenous Peoples, including Indigenous women, in the criminal justice system.” The agency notes that it hired a deputy commissioner for Indigenous corrections in 2023, created Indigenous Intervention Centres to support Indigenous offenders, and launched the Indigenous Offender Employment Program, among other initiatives. “CSC is committed to a correctional system that leads to safer communities through the safe rehabilitation and reintegration of offenders and meaningful investments in the community, led by local organizations,” the statement reads.

But experts say more needs to be done. “If we are really committed to changing the ways of the past, addressing all of the issues in the present, then we have to be able to look at Indigenous people as human beings and provide whatever supports they need,” says Palmater. “Instead of having this racist ideology that they’re dangerous: I want them out of sight. I want them incarcerated. And just keep punishing them while they’re incarcerated, over and over and over again for simply trying to live.”

Update: This article has been updated to reflect comment from the Correctional Service of Canada.

Chris Beaver

Chris Beaver is Anishinaabe from Alderville First Nation and a video journalist at TVO Today with a focus on Indigenous affairs. His latest project is NDN POV, which explores complex issues from the perspective of Indigenous thought leaders.