- Canada:Crime and Restorative Justice
Colonialism continues to obstruct Indigenous people's quest for justice. In Canada, an estimated 150,000 Native children were stolen from their families and forced into residential schools. Designed to "kill the Indian and save the man," these institutions isolated kids from their cultures and communities. Under this policy, Indigenous children often experienced sexual, physical, and emotional abuse, and were subjected to torture and medical experimentation, including studies on the effects of starvation. Canada's last residential school closed in 1996, but both survivors and their families live with the persisting trauma. One legacy of the policy is a disproportionately high number of Indigenous people entangled in the criminal justice system.
The harshest punishments fall on the most vulnerable in society, particularly minorities like First Nations, Inuit, and Métis. Those found guilty of a crime pay a steep price for their actions even after exiting a court or a jail, affecting not only their own lives but also the well-being of their communities. To limit the damage, many have called for a penal code that takes into account the severity of crimes committed and individuals' criminal histories, and incorporates input from offenders' support networks, like social workers and health-care providers.
Following a Supreme Court ruling in 2012, courts in Canada are obliged to consider the impact of the life circumstances of Indigenous defendants during sentencing. The Gladue principle, named after an earlier case involving an Indigenous woman convicted of manslaughter, provides a different way to sentence an Indigenous defendant who takes a guilty plea from the start. Gladue uses a restorative justice model and sentencing structure loosely inspired by traditional Native law, but it is neither tribally controlled nor a sovereign Indigenous court. It does, however, require judges to weigh the effects of colonization, systemic discrimination, and racism. The are supposed to review the backgrounds of offenders who survived residential schools themselves or have family members who did so. They should also factor in the social support systems available to offenders, such as treatment programs aimed at reducing recidivism.
Gladue sentencing has helped many smalltime, repeat offenders, who benefit from a holistic or communal approach to rehabilitation, treatment, and support. But barriers remain for Indigenous people who want to access this code. Many lawyers are unaware of how to enact the Gladue process, and there is a severe shortage of Gladue report writers nationwide, even in the densest urban areas where up to 60 percent of criminal sentences are given to Indigenous defendants. Gladue report writers are crucial, as the documents they produce allow the court to take into account the larger context in which Indigenous offenders have lived.
Criminal justice experts, health practitioners, and policymakers are viewing this as a model for developing sentencing systems that better serves repeat offenders with histories of mental, emotional, and health problems.
It would be life-changing for Indigenous people in Canada to have true tribal sovereignty [End Page 3] and Indigenous methods of restorative justice within their own Nations court system. But until then, Gladue sentencing is a step toward reconciliation after centuries of colonization and abuse. It begins to confront the ongoing effects of the apartheid-like systems established by the Canadian government's Department of Indigenous Affairs.
LEENA MINIFIE (Gitxaala) is the editor of Ricochet's Indigenous Reporting Fund and a producer, journalist, and media maker.