INDIGENOUS RIGHTS – Too many Indigenous Canadians are in jail

Canadian governments continue to allow the operation of a justice system constructed on a foundation of systemic racism


THE ’60s SCOOP never ended – only the destination changed. Instead of sending Indigenous children to white families, the government has sent a generation of Indigenous children to jail. It must end.

Not long ago, First Nations people ‘caught’ leaving their reserve would be arrested and thrown in jail. Even more recently, Indigenous children were stolen from their parents by the Canadian government, to attend residential schools, in what has been described as cultural genocide.

Corey Shefman.

A justice system that targets Indigenous peoples with impunity is nothing new in Canada. But for many Canadians, this is just history, contrasted with a supposedly more enlightened present.

Given that history, one might expect that Canadians and our institutions would be particularly sensitive to the systematic and disproportionate incarceration of Indigenous people.

Canadians should be shocked to learn that nearly 50 per centof youth in Canadian jails are Indigenous. We should be gobsmacked to learn that 98 per cent of girls in Saskatchewan jails are Indigenous. In Manitoba, approximately 80 per cent of both girls and boys in custody are Indigenous.

The situation is no less alarming with adults. Forty-three per cent of all adult women in Canadian jails are Indigenous. Yet Indigenous people make up only five per centof Canada’s overall population.

Given where Canada started, with policies of extermination and assimilation, we have made important strides in recent years, educating citizens about the effects of colonialism and the cultural genocide on Indigenous peoples. We have learned about the residential schools and the mass graves where Indigenous children were buried.

We have learned about the ’60s Scoop, when school buses pulled up to First Nation communities, loaded the children on board, only to deliver them, often for a fee, to white families in the south for adoption.

We know about the substandard housing, the boil-water advisories and so many other harms arising out of decades of discriminatory abuse by settler governments.

Yet despite knowing all this, Canadian governments have continued to allow the operation of a justice system constructed on a foundation of systemic racism that has not changed much.

Some of the right things are being said. Chief Justice Richard Wagner has called the situation “unacceptable.”Attorney General Jody Wilson-Raybould acknowledges that the causes of the overrepresentation can be traced back to the damage done by colonialism.

But if you thought something serious was being done to rectify the issues, you would be wrong.

Many of the solutions to this problem are not new. They’ve been known for a long time and have often been put into practice with success in other jurisdictions. Properly funding and rigorously applying restorative justice programs, rather than making them subject to the whims of government cuts, is an essential part of the solution.

But more important, provinces need to start properly applying the Supreme Court’s 2017 decision in Regina versus Antic, which repeated and clarified the rules for bail, including the presumption that a person not convicted of a crime shouldn’t be in jail. That’s no small matter in a province like Manitoba, where over 70 per cent of inmates are in pre-trial detention– they’re awaiting trial, not proved guilty of a crime.

In Ontario, former attorney general Yasir Naqviannounced in Novemberchanges to the bail policy in that province that would reduce the jail population during the pre-trial period. All provinces ought to follow Ontario’s lead.

Sometimes the solutions may be deceptively straightforward.

Ending the practice of requiring cash or a promise of payment (a surety) in exchange for bail – a practice that has the effect of criminalizing poverty – would make a substantial difference.

As would having Crown attorneys and judges only demand the fewest necessary conditions on a bail order. That means not telling an alcoholic that in order to stay out of jail, they need to abstain from alcohol, and not telling a person with a minimum-wage job who relies on public transit that they need to report to an office on the other side of the city within two days of getting bail.

These aren’t glamorous, reputation-defining solutions, but they’re solutions that will have a positive impact on a problem that must be solved.

To call these incarceration numbers a crisis would be the understatement of the century. A country in which half of the incarcerated youth population comes from one group making up five per cent of the population can’t possibly be a just society.

We can’t as a society be okay with this and we can’t be okay with moving on from this, as we do with so many other headlines, without real action being taken.

Corey Shefman is a lawyer at Olthuis Kleer Townshend LLP, representing Indigenous peoples, persons and organizations, and he’s a contributor with, which is based at the University of Winnipeg. Follow Shefman on Twitter @coreyshefman.

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3 Comments on INDIGENOUS RIGHTS – Too many Indigenous Canadians are in jail

  1. Ian MacKenzie // July 9, 2018 at 5:47 PM // Reply

    Those numbers are shocking! I knew that prisoners were disproportionately indigenous, but what Shefman is telling us is that there are at least 10 times as many indigenous in prison as their numbers in the overall population would indicate. Where is Trudeau and Jody Wilson-Raybould on this issue? Chief Justice Wagner’s comment of “unacceptable” is in itself an unacceptably benign assessment of the situation.
    If Trudeau really means all that “nation to nation” stuff that he’s been given too much credit for uttering, especially when his policies are unilateral, hypocritical, or both, then where is his recognition of UNDRIP? It is quite clear that Shefman’s numbers and explanations prove that colonialism is alive and very unwell in Canada and is a devastating understatement!
    Even for those who don’t have the empathy to see that these numbers speak to a cultural tragedy they should be very concerned at the finances alone. I don’t know how much it costs/year to keep a person in prison, but when at least half of that money is subsidizing the imprisonment of one small ethnic minority there should be efforts to spend at least that much on programs that reduce that number by a factor of 10 below what it is now. Humanity and Justice, where art thou?

  2. Stewart Duncan // July 9, 2018 at 2:49 PM // Reply

    White society has made numerous attempts to help First Nations people, none of which have been wholly successful. All of which resulted in scorn and derision from the next group of wannabe saviors.
    That doesn’t mean we should quit trying.
    But at some point, we have to declare officially and consistently that First Nations have to commit themselves to helping thenselves.
    That means chiefs helping people outside their own clans. It means each band or tribe helping other bands. It means creating their own solutions to ongoing water problems.
    We can help, but First Nations need to do it.
    And we have to stop feeling guilty for our failures when they didn’t respond to honest efforts.
    There are many thousands of successful FN people. I’d bet none of them carries an Official Victim card.

    • You might as well have left it as “White society” – because the rest of the typing is just a waste.
      Your fantasy that “whites” are somehow responsible for the whole of modern society is farcical – and unlikely to be believed anywhere outside Stormfront.
      If you’re feeling guilty – as you’re clearly feeling defensive – you mi, ght consider working on your guilty conscience – and leave the rationalization to those who can be a little more rational on the subject.

      As always, the money – the fiscal transfers which come from the ownership of the lands held under treaty as well as the unceded land – is held up by Ottawa, which doles it out to the bureaucrats buying nice houses in Ottawa; the consultants like Bruce Carson and Rahim Jaffer; and all the other politically connected organizations before a cent – literal nickels and dimes – get to the band council. The way the Indian Act works is to prevent First Nations from having access to their own money for the projects you’re mentioning. Instead, the money goes elsewhere – like the thousands of small towns – no bigger than reserves – which have perfectly adequate water treatment; while First Nations are forced to live in third world conditions.

      So thanks for your brilliant suggestions. Maybe “White Society” could just hand over the money owed instead.

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