Incarceration rates are still increasing: is the criminal justice system, restorative justice, and Gladue working?

ANISHINABEK NATION TERRITORY— The Anishinabek Nation Legal Department continues to host its United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Act virtual engagement sessions with the fifth in the series held on September 7 and 14.

Anishinabek First Nations leaders and citizens were invited to participate in the Shiikenh (Turtle) Dodem (clan) session exploring themes about UNDRIP and discussing priorities including but not limited to Decision-making, Law-making, Criminal Law, Gladue, Restorative Justice, and other justice matters.

An introduction to UNDRIP opened the virtual session followed by the Shiikenh (Turtle) Dodem (clan) presentation, which was led by Anishinabek Nation’s Justice Manager, Kristy Jones. Jones explained traditional structures of how decisions and laws were made. As a community, there were community processes where major decisions over how to address issues that arose were decided. This included input from children, youth, adults, and Elders and it was done in a way to honour the person’s stage of life. Children were asked questions differently as compared to adults and Elders; however, this traditional process was undermined when colonial decision-making processes were imposed and enforced.

As the Shiikenh Dodem focused on decision-making, law-making, the Gladue case and restorative justice, other matters came about in regards to barriers to Indigenous individuals not knowing their legal rights and judicial remedies such as diversion programs and services not being offered in many of our communities and nearby towns/cities. Indigenous individuals who live in First Nations that are an hour or more away from a nearby town are facing transportation barriers that may lead to increased charges which ultimately can lead to increased incarceration rates. For instance; an individual living in Netmizaaggamig Nishnaabeg who does not have their own means for transportation but needs to attend court, must provide $50-$90 for transportation in order to attend court in the nearby town. If an individual does not have money for transportation to attend court, this is considered cause for a bench warrant to be issued and additional charges may be added to the individual’s case, which furthers chances to being incarcerated. Presently, it is around $260 per day to keep a person incarcerated. There would be significant costs reductions for the correctional systems if First Nations were funded equally and uniquely to meet the judicial needs.

Participants expressed issues surrounding the processes and principles of sentencing within Gladue, a remedial provision aimed to ameliorate the over-representation of Indigenous people in prison. The method of analysis that was determined within the Supreme Court of Canada instills systematic imbalances and colonization norms where Judges fail to consider the First Nations’ alternatives to incarceration, how Indigenous traditional laws could be instilled and utilized, and a legal analysis to determine a community’s fit for perspective, needs, and alternatives to incarceration. Participants also expressed that creating the Gladue report re-traumatizes individuals as they go through a series of questions that are evidence-based and patterns of trauma intersect with race-based disadvantages (i.e., funding inequalities, battles of accepting Indigenous traditional laws and culturally-appropriate approaches to civil and common laws, etc.). For instance, Quebec has unique civil laws that intertwine French laws that are imported into Canada; however, Indigenous legal traditions and laws cannot be intertwined as this would create more than one legal system. It was also noted during the session that the Gladue report is traumatizing and the report is not made public; however, the courts process is made public and many individuals feel their right to privacy has been infringed and this further escalates traumatization as observers present in the court can hear the report being read. The individuals who completed the Gladue report reported feelings of embarrassment, degradation, and humiliation. If Gladue is supposed to decrease incarceration rates, yet the incarceration rates keep rising. This denotes the need for a comprehensive review of the processes and have Indigenous-led engagement sessions with offenders to ensure that intentions of Gladue are fulfilled. There are still many gaps within Gladue; training needs to be enhanced and be trauma-informed and Indigenous-led, including researching who is benefiting from Gladue and funding for Gladue Case Managers and Gladue Writers.

Participants also explained the difficulties that First Nations and organizations have in regards to self-identifying as Indigenous. The Powley case explains the standards of self-identifying that was devised by the Supreme Court. Under Powley, a Métis community wishing to acquire Section 35 rights must also prove its ties to communities of Métis with a distinctive collective identity and share a way of life before a time when Europeans established effective political and legal control of the area. Presently, we know that the Indigenous population in Ontario increased by 54 per cent from 2006 to 2016. With this immense increase of the overall Indigenous population across Ontario, there is also the underlying factor of the increased costs to the governments to fund all of these services for the Indigenous population. Participants expressed that people are falsely identifying as Indigenous to be able to utilize rights and the unique legal needs provided to First Nations, Inuit, and Métis such as specific sections of the Criminal Code, Youth Criminal Justice Act, and Child and Family Services Act. These false claims are affecting funding to First Nations for restorative justice programs, pre-charge diversion and post-charge diversion programs, and all other Inherent Rights that First Nations individuals have. This also creates confusion about asserting jurisdiction rights. Many First Nations have membership codes and citizen laws that require community members to give back to their communities, yet individuals try to self-identify in communities creating conflict.

The Anishinabek Nation encourages Anishinabek Nation First Nations leadership, staff, and citizens to assist in embarking on changing Indigenous history and paving a way forward towards improving the road ahead for future generations. Citizens are welcome to attend the upcoming virtual sessions to bring forward critical feedback and/or matters as they relate to the key aspects of UNDRIP. The Anishinabek Nation will be gathering all feedback provided on what Anishinabek would like to see in Canada’s 10-year action plan and what changes need to happen within federal legislation over the next decade. A report will be submitted to the federal government outlining feedback and identifying priorities of needed federal legislative change.

The last upcoming session will be held on October 5, 2022: Mukwaa (Bear) Dodem – Health, Policing, Military, and other issues.

If you or anyone from your First Nation would like to participate in these sessions or would like to request a separate session, please contact Anishinabek Nation’s Justice Manager Kristy Jones: kristy.jones@anishinabek.ca. Virtual engagement sessions registration available here.