The numbers are alarming. In Canada, Indigenous persons represent 4% of the population. But in jail, they represent 23% of the male prison population and a third of females behind bars. And this overrepresentation is only growing. Proof: over the last 10 years the number of Indigenous women in prison has increased by 90%!
By Delphine Caubet
To battle this phenomenon, Canada, and more slowly Québec, are engaging in a policy of positive discrimination towards Indigenous persons. This comes from the Gladue principles. They’re a way for a judge to consider the unique circumstances (experiences) of Indigenous peoples. These include the challenges of colonization that the accused and the accused’s family and community faced and resisted as Indigenous people, and continue to affect them today.
What is Gladue? The Canadian Encyclopedia says that Gladue principles come out of “…a landmark Supreme Court of Canada decision, handed down on 23 April 1999, which advises that lower courts should consider an Indigenous offender’s background and make sentencing decisions accordingly, based on section 718.2(e) of the Criminal Code.”
Gladue asks judges to modify their sentences and find alternative sanctions to fight the over-representation of Indigenous persons in prison.
Lyne St-Louis is a consultant for First Nations. She’s seen a lot of First Nations persons in trouble with the justice system. Her work involves accompanying the accused person and the justice system as they try to understand the accused person’s behavior. And, if possible, they then find substitute sentences so that the accused person avoids getting any jail time.
In this rehabilitation process, the offender takes an integral part in proposing alternatives.
Not long ago, Lyne accompanied a person with drug problems; they’d been through the justice system before, and risked prison this time. During visits Lyne would talk to the accused person, who suggested a plan to hold awareness workshops in schools.
The objective was to raise awareness among students of the impact drugs have on the individual and their culture.
Lyne took things in hand. She went to the local school, and the school principal was sold on the idea.
In this type of rehabilitation, the offender isn’t left on their own. They are supported and helped. In this case, the offender took part in workshops alongside police and elders.
Lyne St-Louis notes that these sorts of sanctions are more efficient than community service. That’s because community service, which often goes unfulfilled, doesn’t take into account the offender, their interests and their past. Alternative sanctions (also called alternative sentencing) are more efficient, because they take the offender as a person into account. The offender is consulted, and can propose a course of action that lets them evolve as a person.
Lyne gives the example of a good Indigenous hunter sentenced to be a forest guide. The man, delighted with his sentence, went so far as to suggest using his own personal vehicle, and even offered to pay for gas.
From this consultant’s personal experience, there is no recidivism in numerous cases of alternative sanctions. The sanction itself isn’t the main cause of this. It’s the support and help around the sanction. That’s because some offenders don’t know what’s wrong with them, and their family isn’t always around to explain the situation.
Mylène Jaccoud, a criminology professor at the University of Montréal, explains that behind every offender there is often a victim. It is therefore important to look at the past, and understand how the offender got there.
Judges can request a Gladue report containing information about the offender’s past, including the impact that residential schools or assimilation policies had on them. Younger offenders may have had no direct knowledge of these, but they may have been raised by parents who had to go through a residential school or who faced assimilation policies. Past actions have an impact on the present.
Depending on where the Indigenous person is tried, judges may be more or less receptive to Gladue considerations in their sentencing.
Maurice Bowen, a facilitator at the Native Friendship Centre of Montréal, notes that not only do accused persons not know what services are available to them, but if the accused is young, judges don’t really take into account any past traumas.
“Québec is behind on this,” he explains. “We only talk about defence, but you have to look at the crime, why it happened, and do some mediation.” So when he accompanies an Indigenous person through the justice system he works to get the court to recognize the specificity of each case
Lyne St-Louis criss-crosses the province. Where she goes depends on the needs of the Indigenous communities. She notes that judges immersed in communities are more receptive to alternative sanctions. In Abitibi, she noted a certain hesitancy at first; but given the inefficiency of detention, jurists became open to the possibilities of alternative sanctions.
But, as she says, “Québec is big,” and it’s untrue to say that everyone gets treated equally. Take Maurice Bowen’s experiences in an urban setting, for example.
In her 2012 report for Public Security Canada titled Marginalized: The Aboriginal Women’s experience in Federal Corrections, lawyer Mandy Wesley is pessimistic about the future of Indigenous persons behind bars, especially women. She says: “The Federal government’s plans will only increase the number of inmates and worsen injustices that Indigenous persons face in general.”
If alternate sanctions are a good start for getting Indigenous persons out of prison, Indigenous women find themselves in a bad situation: as we noted at the beginning of this article, over the last 10 years the number of Indigenous women in prison has increased by 90%!
In her article, Professor Jaccoud explains that Indigenous women represent 45% of all women serving a sentence in maximum security. This should serve as an alarm bell for the need for alternative sanctions in order to avoid incarceration.
In theory, the Gladue principles mandate the prison system to take Indigenous persons’ individual circumstances into account. Programs have been put in place to help male Indigenous inmates in Québec, but we note a flagrant lack of such programs for female inmates.
Statistics show that 75% of Indigenous inmates remain incarcerated until the end of their sentences, which is 10% higher than for the prison population in general.