Editor’s Note:

REAL Women has been deeply concerned about the difficulties experienced by Indigenous communities.  Questions arise as to the many murders of Indigenous women committed, most frequently by individuals they know rather than by strangers.  Why are the Indigenous people so heavily represented in our prison system?  Why are the Indigenous communities experiencing difficulties such as desperate poverty leading to horrendous living conditions, despite generous grants given to them by the federal government?

The cycle of tragedy and sorrow experienced by aboriginals must be stopped.

The following is an analysis of some of these problems. A more detailed analysis has been posted on REAL Women of Canada’s website, located in the “Publications” – “Analysis Reports” tab.

The Family

A major reason for supporting the family is the fact that it passes on cultural traits which are usually beneficial to society.  However, cultural traits may also include destructive characteristics. It is critical, therefore, that whatever the cultural background, the family be stable and that parents be present for their children.

An example of the difference in cultural traits was revealed in a study dated November 30, 2022, by Corrections Services Canada, entitled, Ethnocultural Offenders in Federal Custody: An Examination of Admission, In-Custody Indicators among Men.  This study revealed just how important culture can be.

According to the study, Filipino and Chinese Canadians are disproportionately fewer in federal prisons. Typically, these groups serve less than four years for non-violent crimes like drug offenses. Census data shows that Filipino-Canadians comprise about 3% of the general population, but less than 1% of prisoners. Chinese-Canadians comprise 5% of the country, but are less than the half a percent of prison inmates. By comparison, Indigenous and Black men are the most overrepresented in prison. The report stated that Indigenous men represented 5% of the Canadian public, but 25% of the men in custody.

On inmates re-offending (recidivism), the report states that “Asians were least likely of any prison group to re-offend averaging 19 percent, whereas, 36 percent of Black inmates and 40 percent of Caucasians were recidivists”.

 Why the Difference?

Spokespersons for indigenous communities argue that the high imprisonment rate has been caused by “colonialism”, and by their experience of abuse in residential schools. It is noted however, there is no definitive record of the number of indigenous children who attended residential schools. Many children were educated at schools on reserves where they remained living at home with their families, or never attended school at all.

This would indicate that the family may be a contributing factor to the high rate of Indigenous imprisonments.

By highlighting indigenous victimhood rather than addressing family disparities, legislative and judicial attempts to directly reduce incarceration have backfired spectacularly. Indigenous inmates in federal institutions have increased from 20% of the inmate population in 2008-09 to 28% in 2017-18. This is another blow to the indigenous family, which is possibly the source of many of the problems experienced by many indigenous people including offenders.

Sentencing Blunders by the Supreme Court

In 1999, the Supreme Court of Canada in R .v Gladue held that Canadian courts, while sentencing, should consider the aboriginals’ background in regard to their historical injustices such as residential schools and the effect of economic dislocation on them. The Court suggested that instead of incarceration, a judge may recommend distinctive “restorative justice” practices based on indigenous community beliefs. These may include the use of a healing circle where members of the aboriginal community meet to discuss and address the actions of the offender, and the use of healing lodges.  The Court noted these “restorative justice” practices do not constitute a rejection of the Criminal Code sentencing, but that indigenous communities may provide a more appropriate response. That is, the Court made clear that this ruling did not excuse an indigenous offender and that they must still be held accountable by another process i.e. the indigenous restorative justice system.

This revolutionary decision by the Supreme Court was written by two of the most Liberal judges on the court at the time, Mr. Justice Peter Cory and Mr. Justice Frank Iacobucci, who concluded that judges had a duty to provide restraint on the use of aboriginal imprisonment because the Canadian criminal justice system had failed them. They stated that understanding the fundamentally different worldviews of Aboriginal and non-Aboriginal people was essential in sentencing.

In January 2023, in the case of R v. Kehoe, the BC Court of Appeal said that the principles in the Gladue case must be applied to an offender of Metis heritage who had been charged with aggravated assault. Evidence was submitted that the accused had been disconnected from indigenous community culture, but had been raised in difficult circumstances.  The court concluded that Canada’s colonial history and assimilationist policies had nonetheless played a role in bringing Mr. Kehoe before the court. It therefore applied the Gladue principles in sentencing. Perhaps it would have been more sensible if the Court had looked to the unfortunate circumstances of Mr. Kehoe’s upbringing and his family life rather than the fact he was aboriginal. He had been raised by an indigenous mother and a non-indigenous step father – both of whom led a “partying lifestyle” and his step father was involved in the drug trade. This upbringing obviously was likely the contributing factor to Mr. Kehoe’s wrongful action, rather than the fact he was indigenous.

Mr. Kehoe’s family life is apparently not uncommon to the indigenous community. A Statistics Canada study on Indigenous victimization, Victimization of First Nations people, Metis and Inuit in Canada, July 19, 2022, reveals that native children are far more likely than other Canadian children to have experienced violence at the hands of an adult, to have been sexually assaulted or to have had their basic needs unmet. Twice as many native Canadians as non-natives say they were unloved or unwanted by their parents. One-third of all Indigenous respondents report they’ve witnessed a parent act violently towards another adult. Indigenous adults are also more than twice as likely to be victims of intimate partner violence as non-Indigenous Canadians. Further, a mountain of evidence illustrates how childhood adversity or maltreatment can lead to criminal or antisocial behaviour in adulthood.

All Canadians have an interest in breaking this terrible cycle, but treating violent adult native offenders more leniently than others is not likely to be an effective solution.

The Supreme Court’s Simplistic and Trendy Decision

The Supreme Court of Canada has acquired a well-earned reputation of making superficial and trendy decisions, not based in well-reasoned, legal argument or on analysis of legal principles, but instead, has reached conclusions based on politically correct assumptions and also on the judges’ own personal ideological perspective.

The Gladue case is an example of this propensity of the court.  The Gladue decision may have been well intentioned, but in practice, has not reduced the incarceration rate of aboriginals.

Harmful Effect of Gladue Decision

The harmful effect of Gladue is evidenced in the horrific tragedy that occurred on the James Smith Reserve in September, 2022.

In that case, 10 members of the community were stabbed to death, and 18 were wounded.  This tragedy was carried out by a member of the community, Myles Sanderson.

Mr. Sanderson did not grow up in the community, but in an urban centre in an environment of physical abuse, and domestic violence. His parents separated when he was nine years old, and he lived sometimes with his grandparents or his parents.  He never attended a Residential School.  By his twenties, Mr. Sanderson was a drug dealer and a convicted criminal.  Prior to his killing spree, he had been charged with 25 crimes including two attempted murders and 15 assaults – some of which were domestic violence against his common law spouse.  At the time of the killings, Sanderson was finishing serving a five year sentence for assault, robbery, mischief, and making threats when he was released on his statutory release date in August of 2021- the 2/3’s point of his sentence without having to apply for parole.

While still serving the remainder of his sentence, his statutory release was suspended, however, (just three months after his release) in November 2021 for violation of a condition of his release, namely living with his ex-spouse in contravention of his release conditions.

On February 1, 2022, a panel of the National Parole Board decided to cancel the November suspension and re-instate his release with simply a reprimand in his file.  The Parole Board’s 10 page decision listed his criminal background and high risk, and the failure of restorative justice, but concluded, considering his Indigenous background, and the intergenerational impact of residential schools (which he had never attended), neglect, exposure to familiar substance abuse, his own substance abuse, exposure to domestic violence during his childhood, and the loss of culture and spirituality, that he should be released to spend the remaining term of his sentence in the community.

If the Parole Board had not applied the Gladue principles, eleven individuals would still be alive, and eighteen others uninjured.

It is simplistic to blame the cause of an individual’s crime on his indigenous background in an attempt to reduce the number of indigenous persons incarcerated in prisons. This policy has not helped the indigenous communities, or reduced their crimes. Indigenous inmates in federal institutions rose from 20% of the inmate population in 2008-09 to 28% in 2017-18 while representing only 4.1 % of the Canadian population. The Supreme Court decision was a foolish mistake for which a heavy price has been paid, and will continue to be paid by the Indigenous people and their communities.

It is acknowledged that the problems of indigenous communities and offenders are not susceptible to a “quick legislative fix”.  However, trying to deal with those problems at the sentencing end of the criminal justice process is to grab the wrong end of the stick.  The noticeable absence of a stable family environment runs through the sad legacy of indigenous offenders.  Promotion of strong families would be a better place to effect meaningful and lasting change for the better rather than in continuing with the mistaken and dangerous mentality of Indigenous people as victims.