The mistreatment of Indigenous peoples in Canada is not a new phenomenon. Many Indigenous individuals and whole communities do not have access to adequate housing, running and clean water, or autonomy over their land. They have been subjected to centuries of abuse by colonizers, contemporary settlers, and local and federal governments. However, one might imagine that with the development of the “modern” world in which those of us who are privileged have access to so much, all people would have their rights and freedoms protected and respected. Unfortunately, this is far from the reality, as stories of the horrors that Indigenous peoples have endured and continue to endure – especially at the hands of the Canadian justice system – are still unfolding. 

The Justice System’s Disproportionate Attack on Indigenous Peoples

Indigenous peoples face many problems, such as being subjected to police violence, facing constant threats of land being taken over for development, and not receiving justice in courts. Indigenous peoples in Canada tend to be overrepresented in court and are more likely to be convicted of crimes than white people. A survey that was conducted by Justice Canada researchers between 2005 and 2016  showed that one out of every four persons convicted was Indigenous, despite the fact that Indigenous people only make up 5% of the general population. 

In 2020, it was found that roughly 30% of inmates in federal prisons in Canada are Indigenous, while Indigenous women account for 42% of the population in federal prisons. By contrast, the number of white people convicted for crimes decreased from 63% to 55% in the same time period. Indigenous people are also 55% less likely than white Canadians to have their cases dismissed, discharged, or withdrawn. Researchers have concluded that courts are contributing to negative outcomes for Indigenous people. Indigenous people have a higher probability of being placed in maximum security institutions, serving higher sentences, and returning to custody. Another problem is that Indigenous defendants are often pressured into pleading guilty. This contributes to a cycle of reincarceration as previous convictions can be used against them in future cases. 

The Canadian Court Structure

Canadian courts apply and interpret the Constitution and laws. The main role of all the courts is to administer justice fairly, keeping Canada’s laws and Constitution in mind. There are two types of provincial courts: superior and lower. 

Lower provincial courts are responsible for most of the cases that come into the system. Superior courts are responsible for cases that involve serious crimes or appeals. Federal courts are similar to superior provincial courts but are also responsible for civil matters assigned to them. The highest level is the Supreme Court of Canada. This is the last court of appeal, and only certain cases make it to this level. 

The Canadian justice system is renowned around the world for being one of the best. It contains problems, as do all systems, but is generally regarded as being effective and fair. However, this system should not and cannot be considered just and equitable as it continues to contribute to and promote the overrepresentation of Indigenous people and the improper handling of Indigenous cases. 

The Long-Running Impacts of Ongoing Colonialism

This unjust system and the overrepresentation of Indigenous peoples have ties to colonialism as well as neocolonialism. Long-term effects of residential schools, the Sixties Scoop, the murder and disappearance of Indigenous women are among some events and incidents which play a factor in the incarceration of many Indigenous people. Intergenerational trauma results from these events. 

Colonialism created the problem ​​first by erasing much of Indigenous culture. Many cultural practices could help Indigenous people heal from the trauma they faced. However, these practices were outlawed and destroyed, which prevented many from getting help from their own communities. The children of residential school survivors also face trauma despite not having attended those schools themselves. Having parents who have unresolved trauma creates problems for the children who face the effects. Missing and Murdered Indigenous Women (MMIW) ​​is also tied to incarceration as the victim’s families face trauma and other effects of their loved ones being harmed which can result in substance abuse issues, mental health problems, and suicidality. 

Many children develop depression, suicidality, and anger problems as a result. Over time, destructive behaviors can develop and manifest in the forms of addiction, and mental and physical illnesses. Indigenous peoples tend to be criminalized and imprisoned for factors relating to poverty, lack of education and employment opportunities, substance abuse, and violence. All these factors stem from the intergenerational trauma that many Indigenous people face. The Canadian system of justice does not take into these historical and contemporary social factors and instead has furthered its own colonial legacy.

The Glaude System: A Possible Way Forward?

If implemented correctly, the Glaude system is one system that could benefit many Indigenous people. The 1999 case referred to as Glaude recognizes the effects of colonialism as a factor that may affect Indigenous people’s cases. This system considers the effects of residential schools and the Sixties Scoop, among other incidents and events that have had detrimental impacts on Indigenous communities. The Glaude principles must be applied to every Indigenous person’s case. 

These principles work to address the problems with the criminal justice system towards Indigenous peoples and try to ensure the problems are not repeated. Judges must consider factors such as the individual’s community’s perspectives on the problem and consider their alternatives. Judges must also consider the laws, practices, and customs of the Nation where the offense took place and make decisions appropriate to the individual’s culture. This system can apply to many processes in the justice system, such as bail, sentences, and appeals. The problem is that the Glaude system is not implemented correctly in some areas while not being implemented at all in others. 

The Canadian justice system has a long way to go before it can be deemed just towards Indigenous peoples. However, having more Indigenous people involved in the system and employing Indigenous practices can help alleviate many of the problems. 

Edited by Barbara Amona Purdie

Tatheer Tariq

Tatheer is a Pakistani-Canadian political science student at the University of Calgary. Her main research interests include social justice, human rights, politics and diplomacy, mainly focused in the Global...