TRC@1: The Canadian criminal justice system remains an obstacle to reconciliation

It’s been one year since the release of the Truth and Reconciliation Commission’s (TRC) Summary Report and Calls to Action.  Of its 94 calls to action, 12 deal directly with the criminal justice system and how it serves (or fails to serve) Indigenous people in this country.

The TRC is only the latest in a long line of commissions, inquiries and reports that have sounded the alarm. Over-representation of Indigenous peoples in Canada’s prison system is a serious and growing problem across the country.  In 1995–96, Aboriginal people made up 16% of all those sentenced to custody. By 2011–12, that number had grown to 28%, even though Aboriginal people make up just 4% of the adult population in Canada.[1]

There are a number of reasons why this is happening.  Part of it is certainly the result of discrimination in the criminal justice process.  Research shows that Indigenous people are paradoxically over-policed by law enforcement, and underserved when they are the victims of crime. Once arrested, prosecuted and convicted, Indigenous people are more likely to be sentenced than non-Indigenous Canadians.[2]

A crucial piece of the puzzle, however, is the lasting intergenerational trauma created by the residential school system. As the TRC observed,

It should not be surprising that those who were sexually abused in the schools as children sometimes perpetuated sexual violence later in their lives. It should not be surprising that those who were taken from their parents and exposed to harsh and regimented discipline in the schools and disparagement of their culture and families often became poor and sometimes violent parents later in their lives. It should not be surprising that those who were exposed to poor education and to spiritual and cultural abuse in the schools later turned to alcohol and drugs as a means to cope and try to forget. The consequences for many students and their families were tragic. (Executive Summary, p. 171-172).

Not surprisingly, many prisoners experience strong parallels between their time in prison and their time in residential schools.[3]   And in families where parents are incarcerated, some of the dislocation and trauma of residential schools is reproduced for a new generation.

Finally, tough on crime policies—mandatory minimum sentences, legislation that reduces access to conditional sentences and community alternatives to prison, cuts to rehabilitative programming—only serve to exacerbate the problem of overrepresentation.  Policies like this prevent courts from responding to the way residential school traumas and other experiences related to colonialism help bring people into the criminal justice system. Unfortunately, we’ve seen the introduction or entrenchment of a lot of these kinds of policies in Canada in the last few years.

The TRC Calls to Action give us a great blueprint for how to move forward.  They call for measures such as funding to implement and evaluate community sanctions that provide alternatives to imprisonment for Aboriginal offenders and better respond the underlying causes of offending behaviour (#31); amendments to the Criminal Code to allow judges to depart from mandatory minimums (#32, #34); more culturally relevant services for Aboriginal inmates on issues for such as substance abuse, family and domestic violence and overcoming sexual abuse (#36); support for Aboriginal programming in halfway houses and parole services (#37); and recognition and implementation of Aboriginal justice systems (#42).  Perhaps most importantly, they call on the government to commit to eliminating the overrepresentation of Aboriginal people (#30) in custody over the next decade, and to report back to the country every year on how they are doing.

So where is Canada on implementing this blueprint?

To date, the clearest wins for the TRC’s criminal justice agenda have been in the courts; recent Supreme Court of Canada decisions have held that mandatory minimum sentences for offences that can be committed under a broad set of circumstances are likely to violate s. 12 of the Charter of Rights and Freedoms, which protects against cruel and unusual punishment.

The new federal government has committed to implement the recommendations of the TRC. Although the Justice Minister has said she plans to review mandatory minimums and address gaps in service to Aboriginal people throughout the criminal justice system, we haven’t seen a lot in the way of concrete reforms yet.

Here in Ontario, as my colleague Stephanie explains in her blog post, the government has just announced its response to the TRC Calls to Action.  Their plan includes $45 million over three years to implement some of the TRC’s criminal justice recommendations.   The new investments will include targeted services for Indigenous peoples who are victims of crime; an Indigenous languages courts pilot project and work to revitalize Indigenous legal systems disrupted by colonization; increased funding for community justice programs that focus on healing and restorative justice rather than incarceration; culturally appropriate bail programs to help support indigenous people accused of crime; and efforts to expand the Gladue program.   These are great first steps. To see results, however, Ontario will need to commit to this for much longer than three years.

Canada badly needs a comprehensive long-term commitment from both levels of government to tackle the racism and colonialism in its prisons.  This is a crucial part of starting to repair the harms done by residential schools. The good will is there: now it’s time for the action.

By Krista Nerland