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| John L. Hill |
At first glance, that statistic might imply unusually severe sentencing by judges. However, most researchers argue that this explanation misses the point. Saskatchewan’s high incarceration rate is influenced less by the duration of sentences and more by the structure and functioning of the justice system before sentencing occurs.
The main factor is the province’s high remand population. In some years, between 60 and 70 per cent of inmates in Saskatchewan’s provincial jails are not serving sentences; they are simply waiting for trial. Remand populations increase when bail is denied more often, when accused individuals cannot meet strict bail conditions and when court delays leave cases unresolved for months. Because incarceration statistics include everyone in custody on a given day, a large remand population significantly inflates the numbers.
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Geography also influences the situation. Much of Saskatchewan is rural and isolated, where addiction treatment, mental health programs, supervised bail services and restorative justice options are scarce. When judges have limited community alternatives, jail often becomes the default response.
Policing practices also play a role. Cities like Saskatoon and Regina have seen rapid growth in urban Indigenous populations, along with housing shortages and visible street-level addiction issues. Police responses often focus on proactive enforcement and supervision checks. This approach can lead to numerous breach charges and minor offences, resulting in more people being taken into custody even when sentences are short.
Court delays only worsen the problem. When cases take longer to resolve, accused individuals stay in pretrial detention longer, increasing remand populations. The Supreme Court sought to reduce such delays in the 2016 decision in R. v. Jordan, 2016 SCC 27, but Prairie jurisdictions still face backlogs.
Overlaying all these factors is one unavoidable fact: Saskatchewan has one of the highest rates of Indigenous incarceration in Canada. Indigenous adults comprise roughly 16 or 17 per cent of the province’s population but have made up 70 to 80 per cent of the provincial jail population in some years.
The reasons are complex. The Prairie provinces have significantly larger Indigenous populations than most parts of Canada, but demographics alone do not explain the disparity. Poverty, housing instability, addiction and limited access to mental health services all increase the likelihood of facing criminal charges and hinder the ability of accused persons to secure bail. Colonial legacies, including residential schools, the Sixties Scoop and decades of forced cultural disruption, have also created intergenerational trauma that continues to influence social conditions today.
These issues were addressed by the Supreme Court of Canada’s landmark decision in R. v. Gladue, [1999] 1 S.C.R. 688, which instructed judges to consider the unique systemic and historical circumstances affecting Indigenous offenders and to explore alternatives to imprisonment whenever possible. A subsequent decision, R. v. Ipeelee, 2012 SCC 13, reaffirmed that obligation.
Yet the application of those principles has been the subject of debate for years.
In 2014, the Saskatoon Star Phoenix published a lively exchange on the issue. A newspaper editorial cited retired British Columbia judge Cunliffe Barnett, who criticized Saskatchewan courts for failing to make meaningful use of Gladue reports. Such reports give a detailed background describing an Indigenous offender’s personal and community history. Retired Saskatchewan Court of Appeal justice William J. Vancise fired back, arguing that Saskatchewan judges were already leaders in applying progressive sentencing principles.
A Saskatoon defence lawyer, James Scott, then contributed to the discussion with his own research. Examining written sentencing decisions since 1996, he found that Gladue principles had been applied in only a small number of cases involving Indigenous offenders.
More than 10 years later, the debate continues, though some changes are evident.
Saskatchewan has taken steps to integrate Gladue considerations more systematically into its justice system. Community Corrections now includes Gladue information in all presentence reports for Indigenous offenders. In 2021, the province revised its report format and trained probation officers to ensure that colonial history, trauma and community context are addressed more consistently.
Courts across Canada have increasingly referenced Gladue principles in their decisions. After the Supreme Court clarified the law in Ipeelee, references to Gladue factors in sentencing rulings rose significantly. Studies indicate that by the late 2010s, roughly 40 per cent of reviewed cases mentioned Gladue considerations, compared with almost none a decade earlier.
Saskatchewan has also tried Indigenous-focused justice initiatives, such as Cree-language circuit courts and sentencing circles that aim to include community involvement and restorative justice.
Even so, critics argue that the reforms are still incomplete. Unlike Ontario, which has established a comprehensive network of specialized Gladue courts and independent report writers, Saskatchewan continues to depend heavily on standard presentence reports prepared by probation officers. Independent Gladue reports remain relatively rare.
That difference is important. Gladue reports aim to give a detailed account of an offender’s life history, including the effects of residential schools, involvement with child welfare, addiction, poverty and community trauma. Without this context, sentencing courts might find it difficult to apply the principles the Supreme Court intended properly.
The result is a paradox. Harsh sentencing laws do not mainly cause Saskatchewan’s incarceration crisis. Instead, it stems from bail practices, remand detention, breach charges, social inequality and limited community resources. All these factors lead to people being taken into custody well before a judge delivers a sentence.
Addressing those issues would not only lower incarceration rates but also bring the justice system closer to fulfilling the promise of Gladue: a system that recognizes history, tackles structural inequality and uses imprisonment only when it is truly necessary.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM 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) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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