StatsCan numbers on incarcerated Indigenous only part of story | John L. Hill

By John L. Hill

Law360 Canada (October 5, 2023, 1:52 PM EDT) --
John L. Hill
John L. Hill
The year 1999 should have marked a turning point. That was the year the Supreme Court of Canada gave its decision in R. v. Gladue [1999] 1 S.C.R. 688. In 2012, there was R. v. Ipeelee 2012 SCC 13.

In both of these cases, there was a public assertion that issues facing Indigenous persons involved in the criminal justice system present hurdles other members of Canadian society do not have to deal with.

As a society, we now applaud efforts to expose issues facing Indigenous peoples. We express shock at the treatment meted out to residential school students. We acknowledge the work recorded in the Truth and Reconciliation Commission of Canada: Calls to Action in exposing injustice to our Indigenous populations.

But was 1990 a turning point? The recently published Statistics Canada study, Court Outcomes in Homicides of Indigenous Women and Girls, from 2009 to 2021 forces us to rethink our perception that we are advancing in ensuring equality in society.

During the years examined in the study, 2009-2021, 409 Indigenous women and girls were the victims of homicide. That number is six times higher than the murder rate for their non-Indigenous counterparts. When the perpetrator of the killings was caught (and most of the homicides in the study period were solved), a conviction recorded for first-degree murder was half as common when the victim was an Indigenous woman. Most convictions were for second-degree murder or manslaughter.  

The study is useful as a snapshot to help us understand this country’s relationship with our Indigenous population. But it does not tell us the whole story. It is a story of how Indigenous women and girls have been victimized in Canadian society. It does not speak of how our criminal justice system treats women who have been convicted of crimes. Indigenous women are vastly over-represented in our prisons. The number of Indigenous women in prison represents 50per cent of the female prison population. In the past 10 years, there has been an 85.7 per cent increase in the number of Indigenous women in Canadian prisons.

In a chapter in Indigenous Justice: True Cases by Judges, Lawyers and Law Enforcement Officers, Sen. Kim Pate traces this increase as “an ongoing legacy of Canada’s racist and colonial history that traces its roots back to the breaching of Treaties, the outlawing of cultural and spiritual laws, practices and ceremonies, forced removal from lands and communities, residential schools, the so-called Sixties Scoop, ongoing state-sanctioned forced removal of Indigenous children from their families and communities via child-welfare interventions, inadequate living conditions, and many other human rights violations, all of which have wreaked havoc on Indigenous communities and Indigenous Peoples.” Pate notes that 91 per cent of Indigenous women in federal prisons have experienced physical or sexual abuse. Most female Indigenous prisoners are young and poor, with limited exposure to educational and employment opportunities.

Although the Statistics Canada study is to be applauded for pointing out a shocking disparity in the number of Indigenous women and girls who have been victimized, it is only part of a shameful story. Just as tragic is how we treat Indigenous women who get caught up in the criminal justice system.

Queen’s University Law School decided it was time to take a stand against the abuses meted out to our Indigenous populations. It decided to remove the name John A. Macdonald from the building that houses the school to deplore his treatment of the Métis population during his time as prime minister.

Symbolism is never going to change the system. By carefully reviewing statistics such as those just published and a more intense study of how our judicial system is operating, we will see real and better change. Gladue and Ipeelee were good starts, but not turning points. Let’s continue gathering statistics to justify what necessary changes are in order. 

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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