Good afternoon.
First, thank you so much for inviting me to appear before this committee. I feel very honoured and grateful to be here with you.
At the second reading stage, Bill C-5 is framed in relation to the overrepresentation of indigenous peoples in the system, alongside Black people and those from other marginalized communities. I will focus specifically on this issue of indigenous overrepresentation.
For some context, my research draws upon feminist theories to explore how the criminal justice system interprets and characterizes information about women processed through it, and particularly indigenous women.
In my book, I reviewed 175 decisions sentencing indigenous women, spanning from 1999 to 2015, beginning when the Supreme Court of Canada issued R. v. Gladue, which interpreted Criminal Code section 718.2(e) and set out a different methodology for the sentencing of indigenous peoples.
That court affirmed and clarified this in R. v. Ipeelee in 2012. In Gladue, the Supreme Court finds that indigenous peoples are overrepresented throughout the system, cites systemic discrimination and declares that this is a crisis. The court determined section 718.2(e) represents a direction by Parliament to the judiciary to strive to remedy this situation. The court outlines that judges are required on a mandatory basis by section 718.2(e) to consider all options other than imprisonment.
The Truth and Reconciliation Commission, the TRC, in its call to action number 30, directs all levels of government to commit to eliminating the overrepresentation of indigenous peoples in custody within what remains now as the next three years. In its call for justice 5.21, the National Inquiry into Missing and Murdered Indigenous Women and Girls calls upon the federal government to fully implement this and other recommendations by the TRC and other bodies pertaining to the overrepresentation of indigenous women in the system.
In both Gladue and Ipeelee, the Supreme Court of Canada acknowledges the limits of the sentencing process to remedy the injustice of indigenous overrepresentation in the system. Each decision finds a measure of optimism.
In Gladue, that optimism rests in that judges determine most directly whether an indigenous person goes to prison. In Ipeelee, there is some residual optimism in its clarification of how judges should apply section 718.2(e). However, Gladue was decided over 20 years ago, and Ipeelee was decided a decade ago. In the most recent annual report, from 2020-2021, the Office of the Correctional Investigator indicates that the population of indigenous women who are federally sentenced has increased by 73.8% over 30 years, representing 43% of all federally sentenced women. I also note that because CSOs, conditional sentence orders, are only available for provincial sentences of under two years, that particular element of Bill C-5 will not apply to indigenous overrepresentation at the federal level.
In my book, I explore the sentencing of indigenous women through the lens of a feminist theory called the victimization-criminalization continuum. This theory provides a way to understand women’s trajectories into the criminal justice system as connected to their experiences of victimization and constrained options arising from that context. I use this framework broadly, including to encompass colonial harms within the concept of victimization.
Among many other cases, my research includes cases in which indigenous women’s criminalization or incarceration led to the apprehension of their children by the child welfare system, and also the inverse situation, in which indigenous women did not contact police or medical authorities when necessary because they feared that their children would be apprehended, and then became criminalized as a result. I believe that these and related junctures where colonial systems and institutions intersect contribute to the entrenchment of indigenous overrepresentation in the criminal justice system.
I also note that approximately 80% of the women in my research are mothers, and indigenous children and youth remain highly overrepresented in child welfare systems. I offer these examples of some indigenous women’s criminalization because any legislative amendments to mandatory minimums and CSOs that are positioned to respond to systemic overrepresentation must provide judges with flexibility to account for these and other colonial complexities.
Over 30 years ago, the aboriginal justice inquiry of Manitoba examined indigenous over-incarceration in that province, recommending that trial judges must be more creative and flexible in sentencing and that appellate courts must encourage this. The Supreme Court of Canada in Ipeelee also points to the need for innovative sentencing. However, greater judicial discretion is necessary to fulfill this need, to craft just sentences generally, and specifically per section 718.2(e). In my research, some judges explicitly stated that they could not order the community sentences that would otherwise be fit due to legislative restrictions, and other judges made comments signalling a need and desire for more creative sentencing reasoning and practices for the indigenous women before them.
In my work, I argued for an expansion of the availability of CSOs and suggested a legislative way forward through this through judicial discretion, such as to decline to impose mandatory minimum sentences when appropriate. Indeed, the TRC's call to action number 32 directs this.
I have a bit left, but I've run out of time.
