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La version française est également disponible sur le site Web ccnsa.ca sous le titre : Derrière les barreaux : la surincarcération des autochtones dans le système de justice pénale canadien, ses conséquences sur la santé et les possibilités de décarcération.
Citation: Webb, D. (2024). Barred: Over-incarceration of Indigenous people in Canada’s criminal legal system, the health implications, and opportunities for decarceration. National Collaborating Centre for Indigenous Health.
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INTRODUCTION
The over-incarceration of Indigenous people 1 in Canada’s criminal legal system is a longstanding systemic public health issue rooted in a legacy of colonialism, racism, and discrimination (Anderson et al., 2022; Boyer, 2019; Giannetta, 2021; Pate, 2016; Singh et al., 2019). From the onset of Canada’s penal system, colonial instruments such as the Indian Act and Indian Agents have created conditions to unlawfully imprison Indigenous people and have attempted to annihilate their rights, sovereignty, and well-being (Royal Commission on Aboriginal Peoples [RCAP], 1996). Early laws in Canada prohibited everyday activities for Indigenous people, from ceremonies to agricultural practices to consuming alcohol (RCAP, 1996). The origins of Canada’s criminal legal system thus set the foundation for the current “social epidemic” (Caldwell, 2019, p. 31) that is the over-incarceration of Indigenous populations.
This epidemic significantly impairs the health and well- being of Indigenous Peoples and communities (Caldwell, 2019; Department of Justice, 2021). As health conditions in Canadian prisons worsen and Indigenous-specific carceral programming grows ineffective (Iftene, 2019; Zinger, 2022), there is a need to address this issue from a public health perspective, informed by the increasing calls for large-scale decarceration 2 for Indigenous people.
Promoted as sites for rehabilitation and restoration, Canadian prisons are instead often considered by critics as arms of the state. Prisons, argue critics, are built to assert colonial and paternalistic ideologies and are centred on cultural assimilation and genocide. What is more, say the critics, they perpetuate violence and destruction, and nowhere is this more evident than in their discriminatory
1 The term "Indigenous Peoples" is used throughout this document to refer collectively to the original inhabitants of the lands that comprise Canada, including First Nations people, Inuit, and Métis people. Wherever possible and appropriate, the distinction between First Nations people, Inuit, and Métis people is noted.
2 See Appendix A for a full list of key terms, such as decarceration, and their definitions as they apply to this report.
I’ll Never Forget When…
I lived… in the belly of the concrete beast… flowing through [its] veins, we are [its] life line, barely surviving, consumed by [its] disease of destitute. Degraded and shamed beyond belief, lost somewhere in the mind is my own relief. I cope in unnatural ways… unnatural to this system. In this city of steel my forest is of fences and walls. The stalks of trees are made of bars. The lovely sunset is never seen and wee bits of grass trying to green. Allowed a few flowers nothing more. Now follow me through the steel door. This is my sea of hatred and depression, salt-like waves flowing down my expression. My seagull’s fellow cons crying out. Some yell, scream, slash and shout. This is my desert of death and doom. My only shelter is this 8x7 room. From the heated anger or rage, from the madness that roams in this wilderness. I will one day leave the city of steel, I will bear the scars and hope to heal.
treatment against Indigenous women and girls (Giannetta, 2021; Murdocca, 2020). While Canadian prisons are touted as centres that facilitate the denunciation of criminal behaviour, some within the legal system describe prison operations as a “twenty-first century continuation of the philosophy of forced resettlement [and] Residential Schools” (R v Itturiligaq, 2018).
Colonial governments have attempted to respond to the over-incarceration of Indigenous people for nearly 30 years, mainly by focusing on improving the cultural appropriateness of prison environments (Giannetta, 2021). Different initiatives have manifested, from developing cultural programs to building partnerships with community-based Indigenous organizations. They are not working. As the Native Women's Association of Canada (NWAC) (2019) explains, the introduction of “Indigenous culture into a carceral environment does not automatically make it a place of healing. A culturally-appropriate prison is still a prison” (p. 15). NWAC’s statement forms the basis of this review.
Recognizing the need to break away from mainstream carceral systems, this report explores the ongoing crisis of Indigenous over-incarceration through a public health lens and, in the process, explores current federal, provincial, and territorial government approaches (e.g., policies, legislation, programs) to work towards decarceration. Particular attention is given to community-based alternatives to mainstream incarceration processes, specifically for Indigenous adults aged 18 years and older. The report begins with a review of research methods, followed by a discussion of population metrics and health implications of incarceration, as well as calls and efforts for decarceration of Indigenous people. The report then examines promising Indigenousbased alternatives, the knowledge gaps emerging in the literature, and opportunities for future research. The report concludes with final reflections to ground the findings and inform next steps in advancing the field of Indigenous decarceration.
5
RESEARCH METHODS
Information about the overincarceration of Indigenous people was gathered using Shahid and Turin’s (2018) protocol for environmental scans and fivestep approach. The first step in the process defines the research objectives (described above). Step two involves a consultation process with topic experts, which was completed informally through internal connections to the National Collaborating Centre for Indigenous Health (NCCIH). Steps three and four involve selecting relevant information sources and gathering information. Each step included academic and grey literature sources from Canadian Research Index and Google Scholar, as well as Gale in Context: Canada, Government of Canada Publications, LEGISinfo, CanLII, provincial and territorial ministerial justice department websites, Correctional Service Canada (CSC), Public Safety Canada, Indigenous Services Canada, and Elizabeth Fry and John
Howard Societies. Case law in Canada was also reviewed, using CanLII, to identify alternatives to incarceration considered and/ or employed for Indigenous people at the time of sentencing. Title and abstract search terms and key words for steps three and four included population and intervention concepts, such as (Indigenous OR Aboriginal OR First Nations OR Inuit OR Métis) AND (decarceration OR section 81 OR alternatives NEAR/3 incarceration OR prison OR custody) AND (Canada). Outcome variables, such as a reduction in incarceration rates for Indigenous people or health implications, were not included as search terms so as not to limit the search.
Information on the decarceration approach was gathered from the collected sources using the following categories, as applicable: title of approach; managing government, community, or organization; type of approach; eligibility criteria
for people in prison; 3 starting date of operations; program compacity; ties to Section 81 of the Corrections and Conditional Release Act; program design and general characteristics; and other additional information, such as reported outcomes or effects on health, recidivism, and/or community or familial relationships. The fifth and final step involves consolidation and dissemination of the findings, a task this report seeks to complete.
There are three limitations to this report’s search strategy. First, due to the language limitations of the researchers, only literature sources written and published in English qualified for inclusion. Second, literature published prior to 1996 was not included. This year delineates when public and political attention in Canada shifted towards the disproportionate incarceration rates of Indigenous people, marked by legislative changes to Section 718.2(e) of the Criminal Code. With this restriction,
only current decarceration approaches were included to offer clarity and contemporary relevance on the topic. Third, this report focuses on Indigenous populations who were tried and convicted as adults (aged 18 years and older), thus excluding decarceration approaches for Indigenous youth (aged 17 years and younger). This limitation narrows the search strategy, as inclusion of decarceration approaches for Indigenous youth would constitute a distinct search strategy and review of separate programs, policies, and legislation. These three limitations mean some approaches to decarceration may be missing; thus, it is important to note that this review is not intended to serve as an exhaustive source or repository for all decarceration approaches currently in operation in Canada.
3 This report uses person-centred language when referring to Indigenous people who are involved in the criminal legal system and/or experiencing incarceration. Dehumanizing terms such as offender, prisoner, or inmate are only used when citing original material from the research informing this report. To learn more about this issue, see Harney et al. (2022) and Tran et al. (2018).
OVER-INCARCERATION OF INDIGENOUS PEOPLE IN CANADA BY THE NUMBERS
In 2020-21, Indigenous people accounted for nearly one-third (27%, 5,809 total persons) of the federal corrections population and over one-third (31%, 44,941 total persons) of provincial/ territorial corrections populations, whilst comprising only 5% (1.8 million persons) of the total population in Canada (Public Safety Canada, 2023; Statistics Canada, 2023). These figures are over two times the federal incarceration rate of Indigenous
people in 1996 (14.6%, 2069 total persons), which marks the year when federal legislative and policy changes (discussed further below) formally addressed the issue of over-incarceration of Indigenous people (CSC, 2013). Figure 1 illustrates the current imbalance in federal corrections.
Of 21,512 persons in federal corrections in 2020-21, 5,809 were Indigenous. Of this, 18.6% (n = 4,000) were First Nations,
0.8% (n = 181) were Inuit, and 7.6% (n = 1,628) were Métis (Public Safety Canada, 2023). Figures 2 and 3 break down this total by looking at the proportions of Indigenous women (Figure 2) and men (Figure 3) serving a federal sentence in custody versus in community under supervision and comparing these proportions to the non-Indigenous population over time.
A note on statistics
Canada has two correctional systems: federal corrections, responsible for adults serving sentences greater than two years, and provincial/territorial corrections, responsible for youth sentences and adults serving sentences of two years or less. Statistics Canada administers correctional surveys in collaboration with the two systems to collect information on their program delivery and daily operations; however, each jurisdiction differs in their approach to data management and not all respond to the same survey. Due to these differences, collective statistics about cross-Canada correctional systems must be interpreted with caution (Statistics Canada, 2023). Figures 1-3 of this report, therefore, draw on federal corrections statistics for simplicity and to reduce the risk of misor under-reporting.
1. POPULATIONS OF CANADA AND FEDERAL CORRECTIONS BY INDIGENOUS IDENTITY IN 2020-21
Source: Public Safety Canada, 2023; Statistics Canada, 2023.
FIGURE
FIGURE
ADULT FEMALE POPULATION IN FEDERAL CORRECTIONS BY TYPE OF SENTENCE (IN CUSTODY VS. COMMUNITY) AND INDIGENOUS IDENTITY
Source: Public Safety Canada (2023), Table C16.
Notes: The terms “Ind.” And “Non-Ind.” are abbreviated forms of Indigenous and non-Indigenous, respectively. Disaggregated data according to First Nations, Inuit, or Métis Indigenous identity groups are not available. Population totals (without proportions) are reported in Appendix B.
Figure 2 demonstrates conflicting proportions between Indigenous and non-Indigenous women who are serving sentences in federal custody compared to in the community under supervision. Indigenous women are more likely to serve time in custody than in community, while nonIndigenous women are more likely to be in community than in custody. Among both populations, the proportion of the two types of federal sentences remains relatively consistent over the four years. Starting in 201819, there is a gradual increase
in the proportion of Indigenous women serving their federal sentence in the community under supervision, increasing from 40% (n = 198 persons) in 2018-19, to 43% (n = 208) in 2019-20, to 45% (n = 217) in 2020-21. Yet, the proportion of Indigenous women in custody remains high and includes over half (up to 60% in 2018-19) of Indigenous women involved in federal corrections. The disproportion of Indigenous women in federal custody was underscored by a daily count of women serving a federal sentence in 2022. From this count,
Indigenous women accounted for half of all women in federal custody (596 women in total, 298 Indigenous women), despite representing just 4.5% of the total adult female population (Statistics Canada, 2022; Zinger, 2022).
Figure 3 examines the adult male population in federal corrections and shows a similar pattern to Indigenous women, although more severe due to the greater likelihood of Indigenous men to serve a federal sentence in custody than in community. The same is true for the non-
2.
3. ADULT MALE POPULATION IN FEDERAL CORRECTIONS BY TYPE OF SENTENCE (IN CUSTODY VS. COMMUNITY) AND INDIGENOUS IDENTITY
Source: Public Safety Canada (2023), Table C16.
Notes: The terms “Ind.” And “Non-Ind.” are abbreviated forms of Indigenous and non-Indigenous, respectively. Disaggregated data according to First Nations, Inuit, or Métis Indigenous identity groups are not available. Population totals (without proportions) are reported in Appendix B.
Indigenous population; however, the proportional differences for Indigenous men are higher and less even, as up to 71% (n = 3,647) of Indigenous men were serving a federal sentence in custody compared to just 29% (n = 1,464) of men in community in both 2017-18 and 2018-19 (2018-19 statistics include 3,877 Indigenous men in custody and 1,548 in community). A slight increase in the proportion of Indigenous men serving a federal sentence in community under supervision is observed between 2018-19 (29%, n = 1,548),
2019- 20 (30%, n = 1,684), and 2020-21 (32%, n = 1,678). Even so, the proportions of Indigenous men serving a federal sentence in custody compared to in community remain relatively consistent over the years.
For both Indigenous women and men, more research is needed to determine the contributing factors and exact causes for the slight increases in community-based federal sentences during this timeframe. One possibility may be that extra measures were taken (e.g., lockdowns, court deferrals)
to keep prison populations low due to public health concerns tied to the COVID-19 pandemic. Under this assumption, the slight increase in federal sentences in community may shed light on current backstage mechanisms to reduce custody admissions in favour of more communitybased sanctions, thus suggesting potential opportunities to advance Indigenous decarceration.
11 Barred: Over-incarceration of Indigenous people in Canada’s criminal legal system, the health implications, and opportunities for decarceration
FIGURE
The over-incarceration of Indigenous people affects health outcomes within prison populations, as well as the health and safety of society at large. There are vast health concerns within carceral systems across Canada that affect both Indigenous people who enter prison systems and their communities upon their release (Iftene, 2019; McLeod et al. 2018; Singh et al. 2019).
POPULATION AND PUBLIC HEALTH IMPLICATIONS OF INCARCERATION FOR INDIGENOUS PEOPLE
Prison environments and health conditions
The over-incarceration of Indigenous people affects health outcomes within prison populations, as well as the health and safety of society at large. There are vast health concerns within carceral systems across Canada that affect both Indigenous people who enter prison systems and their communities upon their release (Iftene, 2019; McLeod et al. 2018; Singh et al. 2019). This ripple effect starts within the community: people often enter prison systems with preexisting physical and mental health conditions and then face inadequate access to health services or supports upon their arrival and/or throughout their custodial sentence (Balfour et al. 2018; McLeod et al. 2018). For example, ample
research has found prisons to epitomize environments that promote chronic illness (such as cancers and diabetes) and transmit infectious diseases due to overcrowded and poorly ventilated conditions, lack of adequate treatment and care, understaffing of health care professionals, and exposure to high-risk environments involving unsafe drug use, unprotected sex, and unsafe tattooing (Iftene, 2019; Kouyoumdjian et al. 2018; Skinner et al. 2018; van der Meulen et al. 2018). Rates of human immunodeficiency virus (HIV), hepatitis C (HCV), tuberculosis (TB), and sexually transmitted infections are also among the highest in Canada’s carceral system, with prevalence of HCV and TB disproportionate to Indigenous populations (Iftene, 2019; Skinner et al. 2018).
Mental health conditions, in particular, often develop or worsen in prison environments (Balfour et al. 2018; Malta et al. 2019). In most federal prisons, pathways to address the mental health needs of Indigenous people do not exist, especially for Indigenous women (McGuire & Murdoch, 2022; Zinger, 2022). Consequently, health care related complaints were the second-most common issue brought forward by Indigenous people serving time in federal penitentiaries in 20212022 (Zinger, 2022).
Mother-child programs
Significant repercussions and mental distress are concerns for Indigenous mothers in prison due to restrictive eligibility criteria for and limited availability of mother- child programs across Canadian prisons. Correctional Service Canada (CSC)’s Commissioner’s Directive 768 Institutional Mother-Child Program regulates mother-child programs operating within federal prisons. Under this policy, mothers who are incarcerated in a federal prison may apply to participate in mother-child programming as long as they are classified as a minimum-or medium-security risk. Mothers who are in prison and are classified as a maximum-security risk may also apply for the federal mother-child program as long as they are being considered for medium-security risk. All applicants must also: complete a screening process with the provincial/territorial Child and Family Services and gain the agency’s support; prove they are without any mental health conditions that would impair their parental abilities; not be convicted of an offence against a child or that would impose
danger on a child; and not be subject to legal orders restricting contact with their child(ren) (CSC, 2020).
Certain aspects of the program’s eligibility criteria (such as the security classification and required engagement with Child and Family Services) pose significant barriers for Indigenous women who are incarcerated. For instance, based on some Indigenous women’s social histories and experiences involving violent crimes, they are more often deemed medium- or high-risk in prison. Security classifications mostly miss the context of an offence which, in the case of violent crimes by Indigenous women, often involves responding to or attempting to escape violent situations (Murdocca, 2020; NWAC, 2019; Office of the Auditor General of Canada, 2022). Security classification tools also neglect to consider the ongoing impacts of colonialism that normalize and perpetuate acts of gendered violence against Indigenous women and sustain greater interactions with criminal legal systems (National Inquiry into Missing and Murdered Indigenous Women and
Girls [NIMMIWG], 2019b; McGuire & Murdoch, 2022; Murdocca, 2020). Moreover, some Indigenous women may be hesitant to engage with and request support from child welfare agencies on account of historical and ongoing practices of child apprehension and forced family separation disproportionate to Indigenous families (NCCIH, 2017).
Researchers also explain how eligibility criteria for motherchild programming may impose separation between Indigenous families. This breaking up of families mimics colonial policies and systems – residential schools, Sixties Scoop,4 and the current child welfare system – that have systematically sought to assimilate and forcibly remove Indigenous families from their cultures and communities. Murdocca (2020) describes this as a “double trauma” that comes with Indigenous women being institutionalized and then removed from their families (p. 48). Children may also observe detrimental impacts on their health, mental well-being, and cognitive development when separated from their mothers because of incarceration (Millar
4 The Sixties Scoop refers to an era of mass apprehension of Indigenous children from their families and communities and placement within foster homes, often with non-Indigenous families. While the 1960s was a decade of exceptionally high numbers of apprehensions, the period referred to as the “Sixties Scoop” also includes the 1950s, when this practice began, up to the 1980s when policies to apprehend Indigenous children became less explicit (First Nations & Indigenous Studies, UBC, 2009). It is important to note, however, that Indigenous children continue to be over-represented in Canada’s child welfare system.
& Dandurand, 2018). Owing to these circumstances, few Indigenous women participate in institutional mother-child programs in federal prisons. Since the program’s inception in 2002, only 29% of program applicants identified as Indigenous (53 First Nations or Métis women in total, zero identified as Inuit) despite making up 50% of all women serving time in a federal prison (Zinger, 2022).
Aside from the federal motherchild program, British Columbia is the only province in Canada to offer mother-child programming in one of its provincial correctional facilities (Alouette Correctional Centre for Women). The prison-based program (called “Mom & Me”) allows interned mothers to either reside or keep in close contact with their children while incarcerated (Paynter et al., 2021). The program was previously cancelled in 2008 because of safety concerns for infants and children and uncertainty about the program’s applicability to the prison’s mandate. The uncertainty centred around whether the prison’s mandate included responsibility of, or accommodations for, children of people in prison,
based on the mandate’s literal interpretation (Inglis v. British Columbia [Minister of Public Safety], 2013). No formal program evaluations were completed and, until its cessation, many mothers who were incarcerated and their children were widely known to experience positive outcomes from the program (Salmon & Thompson, 2012).
In 2013, Amanda Inglis of Shuswap Nation (and her son Damien) and Patricia Block (and her daughter Amber) took the British Columbia provincial government to court after being served custodial sentences at the Alouette Correctional Centre for Women. The two argued that cancelling the mother-child program within the correctional institution resulted in serious psychological distress and infringed on their constitutional rights (Inglis v. British Columbia [Minister of Public Safety], 2013). Their case was made on behalf of themselves, their children, and all other women who are incarcerated and may have been affected by the program’s cancellation. The case eventually reached the Supreme Court of British Columbia, which found the decision to cancel the program to be in violation of
incarcerated women’s Chartered rights, specifically under Section 7 (right to life, liberty, and security of person) and Section 15 (equality rights). The Supreme Court also ruled program cancellation worked against the child’s best interests, thereby was also in violation of provincial obligations set under the Child, Family and Community Service Act (Inglis v. British Columbia [Minister of Public Safety], 2013). The court addressed the historic over-incarceration of Indigenous women in its proceedings and the “history of dislocation of Aboriginal families caused by state action” (para. 612). Informed by these discussions, the court also found that the decision to cancel the program “constituted discrimination in that it was state conduct that widens the gap between the historically disadvantaged group and the rest of society rather than narrowing it” (Inglis v. British Columbia [Minister of Public Safety], 2013, para. 16). The mother-child program was reinstated in 2014 and remains the only live-in mother-child program in a provincial prison to date.
Mental health concerns within prisons
The culture of punitive policies within the carceral system alone exacerbates mental illnesses. For example, Structured Intervention Units (SIUs) (formally known as administrative segregation) are a form of isolation used for people in prison who present a risk to the safety of themselves and others, or to the integrity of prison-based investigations (Sapers, 2022). However, Prevost and Kilty’s (2020) dissection of the language of CSC segregation policies identifies a narrative that configures the use of SIUs to disproportionately address the “risks” associated with three groups: “women, Indigenous peoples, and those suffering from mental illness” (p. 173). Investigations in federal
prisons have found segregation practices are analogous with the correctional response to handle matters of mental health concerns or self-harming behaviours among people in prisons, especially Indigenous women (Prevost & Kilty, 2020; Sapers, 2022). This practice persists despite growing evidence of the adverse effects of prolonged stays within isolation, including SIUs, such as: intensifying pre-existing mental health conditions; prompting new health challenges; and increasing the risk of producing “extremely high psychological distress” and “higher rate[s] of suicide” among people experiencing incarceration (Sapers, 2022, p. 79).
A recent evaluation of the use of SIUs in Canadian prisons found Indigenous people in prison, especially Indigenous women, were most likely to be sent to
SIUs and for longer periods. Of those transferred to SIUs, Indigenous people were more likely to present with mental health needs (37.6%) compared to non-Indigenous people (25.5%) (Sapers, 2022). The presence of a mental health condition also increased the likelihood for Indigenous people in prison to be transferred between multiple facilities which, in turn, may simultaneously reduce the likelihood of receiving consistent and reliable mental health services (Sapers, 2022). For care provided by Indigenous Elders, administrative issues related to SIUs often created obscurity surrounding the Elder’s role, posing further barriers to effective delivery (Sapers, 2022).
Limitations to harm reduction practices in prison environments
HIV and HCV infections (Sander et al., 2019).
Since 2018, the CSC has implemented its Prison Needle Exchange Program; however, the drug-free policy persists and the program’s approachability is further hindered by an extensive application process with restrictions on behaviour and a lack of confidentiality to protect participants (Giffin et el., 2023). Moreover, the program is found to be irresponsive to individual-based needs (Zinger, 2022). Program participants are also at risk of facing disciplinary measures, if found with drugrelated products outside of the programs’ contents (Zinger, 2022).
In interviews about Canada’s Prison Needle Exchange Program, federally incarcerated women voiced their concerns about the program’s potential to promote intravenous drug use and, consequently, to increase the risk of overdoses (Giffin et al., 2023).
Most interview participants supported community-based harm reduction programs; however, they did not share the same sentiment for prison-based programs under a “drug-free” policy because of the perceived risks associated with participating, such as criminalization for the possession of drugs and threats to parole or early release if their participation and use of intravenous drugs is known (Giffin et al., 2023). Some women spoke of the program’s threat to sobriety, as incarceration was considered an opportunity to break patterns of drug and substance use altogether (Giffin et al., 2023). With these concerns in mind, it may be beneficial for future researchers to explore effective prisonbased harm reduction practices, seeking input directly from intended participants to ensure the program’s equitability and viability (Giffin et al., 2023; van der Meulen et al., 2018).
CSC drug policies may also create barriers to essential medications, effective rehabilitative treatments, and other harm reduction programs, such as opioid substitute therapy and needle exchange programs (Malta et al., 2019; Singh et al., 2019; van der Meulen et al., 2018). The CSC adopts a zero-tolerance drug-free policy, limiting access to safe and effective harm reduction programs (van der Meulen et al. 2018; Zinger, 2022). By contrast, outside of Canada, programs exist in prisons that are guided by more pragmatic, humanrights based policies (Sander et al., 2019; van der Meulen et al. 2018). Examples include needle and syringe programming in prisons in Switzerland and Spain, where positive effects are routinely demonstrated in the reductions of needle sharing, abscesses, drug overdoses, as well as new cases of 17
Health care access and delivery in prison environments
The federal Corrections and Conditional Release Act (1992) states that care provided to people in prison must include “essential health care,” “reasonable access to non-essential health care,” and be of “professionally accepted standards” (S. 86). Since the criteria for these conditions are not clarified, the quality and accessibility of care in prisons varies across Canadian jurisdictions. Health care service provisions within federal prisons (for sentences greater than two years) are overseen by CSC and standardized across most of its institutions. Health care
provisions across provincial and territorial prisons, however, are managed by each jurisdiction.
Most provinces and territories provide corrections health care from their ministries responsible for justice rather than from their ministries responsible for health (apart from Nova Scotia, Alberta, and British Columbia, who deliver health services from their provincial health authorities) (McLeod, 2021). The quality and accessibility of health care may thus not be regulated by the same criteria as the Canada Health Act, which are guided by five principles: public administration, comprehensiveness, universality, portability, and accessibility). As a result, some services may be substandard compared to
Children of parents who are incarcerated are at greater risk of anxiety and depression, difficulties in school, and involvement in the criminal legal system as adults. This results in a generational cycle of over-incarceration (Purvis, 2013; Singh et al., 2019).
health care services delivered in the community, outside the prison system (McLeod, 2021). Some provincial prisons are said to administer health care access, especially mental health and substance use treatments, from a punitive standpoint (Balfour et al., 2018). These ideologies often foster harmful attitudes toward Indigenous people with mental health conditions and substance use addictions, inadvertently creating an environment that may worsen Indigenous health outcomes (Iftene, 2019).
Implications for the continuity of care for Indigenous people who experienced incarceration
Mental health or health care services may be provided to Indigenous people in prison. The lack of infrastructure within correctional systems, however, results in a challenge to support continuity of care after release from prisons (Balfour et al., 2018; McLeod & Martin, 2018). These challenges take many forms, such as a custodial release without means or access to transportation to obtain care and/or inadequate support from prisons to identify or locate health care services that will be available to individuals upon their release (Balfour et al., 2018). As Balfour et al. (2018) put it:
The fragmented delivery of reentry 5 supports appears to be influenced by the type of carceral institution, rather than by the needs of those confined, the statutory requirements, or the rights of prisoners (p. 12).
A discontinuance of care impacts communities outside of prison by increasing safety risks, the risks of disease transmission,
health care costs, and burdens on families and caregivers (Iftene, 2019). Discontinuity also puts Indigenous people experiencing incarceration at substantial mortality risk within the first couple weeks after release, particularly from drug overdose and/or suicide (Singh et al., 2019).
The indirect effects of discontinued care on Indigenous communities are exacerbated for Indigenous people released from provincial and territorial prisons (Iftene, 2019). Shorter sentences (less than two years) offer a quick turnover period, leaving Indigenous people exposed to health risks with little to no treatment provided during their sentence, especially when compared with available health care services in federal carceral systems. In an exceptional case, McLeod (2021) found continuity of care improved for persons released from provincial prisons in British Columbia, due in part to the shift in health care provision from corrections to the provincial Ministry of Health. This shift saw improvements in the quality of institutional care as well as the likelihood of persons seeking out and accessing community health care and supports after their custodial release, especially for mental health and addictions treatment. Little research has
investigated the outcomes of similar health provision transfers in Nova Scotia and Alberta, thus highlighting an important area for further research. Future queries may investigate what specifically – be it correctional health systems, the carceral institution, community services outside of prison, or others – lend the greatest influence to facilitate continuity of care for those leaving prison environments?
Environmental factors and policies within prison systems give rise to several public health implications for Indigenous people. Singh et al. (2019) quantifies this reality, suggesting a risk of reduced life expectancy of two years for every year spent in prison. The adverse effects of incarceration also take an intergenerational toll. Children of parents who are incarcerated are at greater risk of anxiety and depression, difficulties in school, and involvement in the criminal legal system as adults. This results in a generational cycle of overincarceration (Purvis, 2013; Singh et al., 2019).
5 The term ‘reentry’ is defined here as the “policy practice [or] personal experience of relocation from confinement to the community” (Balfour et al., 2018, p. 2).
You introduce your ignorance and intimidation only to have us brothers rebound from humiliation.
You take the air I breathe from reality and spare this warrior his mentality.
You try to isolate my concept of determination which does not follow your constitution.
You aggravate with your authority only to bring me closer to spirituality.
You view and justify our wrong by the book in your colloquial vocabulary, I am the crook.
You take and label us the low-life class when upon my prayers include the pipe and sweetgrass.
You attempt to manipulate the spirit – that is your goal for I shall remain and be strong in mind, body and soul.
You see whiteman I am not a follower in my sense of direction, I am the leader.
Wally, 1988 (an Indigenous person in prison)
THE NEED FOR INDIGENOUS DECARCERATION
Justice advocates, researchers, and organizations have long demanded systemic decarceration for Indigenous people. Decarceration aims to reduce or eliminate the overincarceration of Indigenous people within Canada’s criminal legal systems through Indigenousled decarceration efforts, such as culture-based alternatives to incarceration and reduced dependence on mainstream systems, ideologies, and rationales for imprisoning Indigenous people (Anderson et al., 2021, 2022; Denis-Boileau & Sylvestre, 2018; Giannetta, 2021). Calls for systemic decarceration come in response to the Government of Canada’s historic approach to reduce incarceration rates among Indigenous Peoples: program development within CSC and legislative amendments to criminal law. Program development has historically received greater funding and resource priority to ensure implementation (Anderson et al., 2022; Giannetta, 2021; Sandulescu, 2021), and evaluative reports confirm CSC’s achievement in developing needsbased programs for Indigenous people in prison (Office of the
Auditor General of Canada, 2022). Critics argue, however, that this approach has grown ineffective over the years (Zinger, 2022) and done little to reduce Indigenous incarceration rates (Anderson et al., 2022; Giannetta, 2021; Office of the Auditor General of Canada, 2022). In fact, CSC’s institutional goal to “Indigenize” prisons through cultural programs was found to “normalize the presence, on a massive scale,” of Indigenous people in prison settings (Anderson et al., 2022, p. 18).
Research suggests CSC’s “Indigenous-specific” programs are not always culturally appropriate (Anderson et al., 2022; McGuire & Murdoch, 2022). Programs for Indigenous people in prison often include access to Elders who are employed by CSC, but their status as Elders may not be recognized within Indigenous communities. What’s more, their interventions may not reflect the diverse needs and experiences of Indigenous people and their communities (Anderson et al., 2022; Giannetta, 2021). CSC programs regularly include pan-Indigenous elements that are neither sensitive nor
appropriate to address the distinct needs and cultural differences of First Nations, Inuit, and Métis identities and backgrounds (Denis-Boileau, 2021; Giannetta, 2021; McGuire & Murdoch, 2022). McGuire and Murdoch (2022) describe the cultural appropriation behind correctional programs and the pan-Indigenization as an attempt to “perpetuat[e] the romanticism of who Indigenous peoples were, are, and should be” (p. 540). Correctional programs can become particularly problematic when they operate within the confines and authority of colonial legal systems – the very structures that were originally designed to “disempower and disenfranchise Indigenous peoples” (Giannetta, 2021, p. 5). The devaluing of evidence surrounding institutional cultural programs suggests a need to consider other avenues to reduce the number of Indigenous people who are incarcerated – such as Indigenous community-based alternatives to imprisonment.
TABLE 1. REPEATED RECOMMENDATIONS FOR CSC FROM CANADA’S
OFFICE OF THE CORRECTIONAL INVESTIGATOR (OCI)
Recommendation
Improve access to and effectiveness of harm reduction programs to address substance use, addictions, and other mental health needs within and across federal institutions.
Assess the validity and reliability of the security classification process, with particular attention to its application for Indigenous women, and ensure Indigenous social histories are considered appropriately and meaningfully throughout.
Address the eligibility criteria for the federal mother-child program, with particular attention to improving access and removing barriers for Indigenous women.
OCI Annual Report
Annual reports from 2009-10, 2011-12, 2013-14, 2015-16, 201819, and 2021-22
Annual reports from 2012-13,6 2018-19, and 2021-22
Annual reports from 2009-10, 2014-15, and 2021-22
Appoint a Deputy Commissioner for Indigenous Corrections. 7 Annual reports from 2015-16, 2017-18, and 2021-22
Increase and improve resource allocation to support the production and operations of Section 81 facilities for Indigenous people (i.e., Section 81 of the Corrections and Conditional Release Act), improve the feasibility and frequency of transfers to Section 81 facilities, and increase the number of new Section 81 agreements.
Annual reports from 2009-10, 2012-13, 2016-17, 2017-18, and 2021-22
6 This recommendation is not articulated explicitly in the 2012-13 annual report; rather, it recommends this item in reference to Wesley's (2012) external report on marginalized Indigenous women in federal corrections.
7 Recommendations for a Deputy Commissioner for Indigenous Corrections were made prior to 2009-10 (e.g., identified in the archived 2004-05 annual report). Other annual reports from 2009-10, 2012-13, 2014-15, and 2018-19 also mentioned this recommendation informally and proposed similar recommendations to combat the CSC’s resistance. As of March 2023, a Deputy Commissioner for Indigenous corrections has been established and will oversee matters relating to Indigenous people within CSC (CSC, 2023).
For decades, Canada’s Office of the Correctional Investigator has raised concerns over the high rates of incarceration and inequitable treatment of Indigenous people. These investigations come with a series of recommendations to facilitate change and address such issues across Canadian prisons (Zinger, 2022). Table 1 lists some of the recommendations to address the health and well-being of Indigenous people experiencing incarceration that have been recycled over the years, up until the most recent 2021-22 Annual Report (Zinger, 2022).
Countless other reports, commissions, and investigative inquiries have echoed calls for prison reforms as they relate to the experience of Indigenous people, with many calling for various modes of decarceration to transfer Indigenous people into the care and custody of their communities and to support Indigenous communities in these endeavours (Anderson et al., 2022; Murdocca, 2020; NIMMIWG, 2019b; Truth and Reconciliation Commission [TRC], 2015a; Vecchio, 2018).8
Potential positive effects of Indigenous decarceration
Research demonstrates the positive effects of decarceration on Indigenous people’s quality of life when involved in the criminal legal system, especially within the realms of mental health and community wellbeing (Chartrand & McKay, 2006; Park, 2021). Communitybased approaches to Indigenous decarceration are typically set up to address the root causes of crime, reduce recidivism, improve rehabilitation, and effectively support healing among Indigenous people who are involved in the criminal legal system, as well as victims and communities affected by crimes (Chartrand & McKay, 2006; Clairmont & Linden, 1998; NIMMIWG, 2019a; Park, 2021).
Decarceration may also serve as a public health approach to improving population health by addressing some of the health concerns within prison populations, including infectious disease transmission, mental
health conditions, poor living environments and nutrition, and access to parental programs, among others (Gordon et al., 2021). For example, some people may be dropped by their primary health care provider once they have been admitted into custody and unable to regain access upon their release from custody (Iftene, 2019). Access to primary care can be retained by prescribing communitybased sentences for Indigenous people, thus reducing the risk of adverse health outcomes. Access to other community health programs and supports that are either limited or non-existent in prison environments may also be improved, particularly addiction and harm reduction programs (e.g., opioid substitute therapy, safe needle exchange) and infectious disease treatment (e.g., HIV and HCV) (van der Meulen, 2018). Opioid substitute therapy and HCV treatments are especially important, as prevalence of opioid use disorders and HCV infections are disproportionately high among prison populations. HCV infection, in particular, is disproportionately high among
8 Indigenous communities in this respect may encompass First Nations people, Inuit, and/or Métis people who reside within urban, rural, and remote/northern areas of Canada, who share common characteristics, attitudes, interests, or goals within distinct nations and/or supportive networks.
First Nation people in prison (Malta et al., 2019; Skinner et al., 2018).
Indigenous decarceration affords Indigenous communities the opportunity to exercise their autonomy and self-determination in law and justice, consistent with the United Nations Declaration on the Rights of Indigenous Peoples (United Nations, 2007). Community-led decarceration approaches may also function to revitalize Indigenous laws and principles in accordance with unique and diverse First Nations, Inuit, and Métis worldviews (TRC, 2015b). The Truth and Reconciliation Commission of Canada (TRC) and the National Inquiry into Missing and Murdered Indigenous Women and Girls (NIMMIWG) both highlight the need for decarceration, calling on federal, provincial, and territorial governments to support the implementation of communitybased alternatives to imprisonment (NIMMIWG, 2019b; TRC, 2015a). The TRC’s Call to Action No. 31 and the NIMMIWG’s Call for Justice No. 5.16 emphasize community-based initiatives as effective means “to respond to underlying causes of offending” (TRC, 2015a, p. 3) and “issues of incarceration – trauma, poverty, and other effects of colonization – by using the strengths of cultural practices for healing” (NIMMIWG, 2019a, p. 643).
Opportunities for Indigenous decarceration in federal legislation
Pieces of federal legislation provide avenues to support Indigenous decarceration, including provisions in the Criminal Code and the Corrections and Conditional Release Act. In 1996, Section 718.2(e) of the Criminal Code was amended to specifically address the overincarceration of Indigenous people by mandating courts to consider Indigenous social histories and alternatives to imprisonment upon sentencing. In the same year, Section 742 of the Criminal Code introduced conditional sentences, opening the door for courts to consider community-based sentencing alternatives more generally. Section 717 of Criminal Code also plays a significant role in authorizing alternative measures, such as community-based programs for people who accept responsibility for their offence and agree to a course of action as an alternative to criminal prosecution. In like manner, Section 81 of the Corrections and Conditional Release Act allows Indigenous people in prison to be transferred into the care and custody of community-based establishments to complete either the entirety or a portion of their sentence. Application of these provisions, however, faces several barriers and limitations.
Sections 718.2(e), 742, 717 of the Criminal Code of Canada
Section 718.2(e) of the Criminal Code legislates the duty of judges to consider all available sanctions other than imprisonment, requiring that particular attention be paid to the background and unique systemic factors of accused Indigenous people (Criminal Code, R.S.C., 1985, c. C-46; R. v. Gladue, 1999). This provision, known colloquially as Gladue, was added to the Criminal Code in 1996 when Indigenous people’s over-representation in Canada’s prison populations came to the forefront through parliamentary reviews, legal committees, and the Royal Commission on Aboriginal Peoples (Rudin, 2008). The provision was first interpreted in R v. Gladue (1999), which was explicit about the over-incarceration Indigenous people faced and the need for alternative sentencing for Indigenous populations across the country (Rudin, 2008). The Gladue decision introduced the concept of restorative justice within the premise of sentencing goals, urging judges to recognize the needs of all those affected by crimes, including the accused, victims, and the wider community. These ideals challenged the normalcy of deterrence or retribution (Roach & Rudin, 2000). The impact of the Gladue decision was felt on a national level; it offered “purpose behind section 718.2(e), including
a critique of Canada’s overuse of incarceration generally,” and served as a guide for judges to interpret and apply Section 718.2(e) in their sentencing decisions involving Indigenous people (Rudin, 2008, p. 693).
Despite its apparent importance at the time it appeared, the Gladue provision currently sees little effect in court. To act on Section 718.2(e), legal counsel or the accused themselves may collect information on the accused’s background and unique systemic factors and offer sentencing alternatives in the form of “Gladue Reports”; yet Gladue Reports are underused (Rudin, 2008). Denis-Boileau and Sylvestre (2018) found in a Canadian case law analysis that only 20% (n = 128) of 635 identified decisions analyzed an accused Indigenous person’s background and systemic factors, and only 1.1% (n = 7) of those decisions tailored their sentence to their Indigenous heritage.
The underuse of Section 718.2(e) may be explained in relation to complications with mandatory minimum penalties (discussed further below), unclear case law for interpreting Gladue principles against the responsibilities of the accused, and the absence of a structured, systematic approach to producing Gladue reports (Denis-Boileau & Sylvestre, 2018; Sandulescu, 2021). Colonial epistemologies
that underpin sentencing principles, coupled with the lack of available information to inform Gladue reports, also interfere with community-based alternatives (Denis-Boileau & Sylvestre, 2018; Murdocca, 2020; Park, 2021; Peterson, 2019). A scarcity of information about the effectiveness and benefits of community-based alternatives renders judges less likely to consider sentences from outside the realm of deterrence and denunciation (Denis-Boileau & Sylvestre, 2018). These colonial principles run counter to Indigenous legal principles, which collectively embody “a holistic approach that focuses on relationships with other people and also with the land and the environment” (Denis-Boileau & Sylvestre, 2018, p. 299), and
which centre on “accountability, reparation and healing rather than punishment” (Viens, 2019, p. 300).
As per conditional sentences under Section 742 of the Criminal Code, arrangements may be made for people who are convicted to serve their sentences in the community. Serving a sentence in community can occur if an offence constitutes a custodial sentence of less than two years, is not subject to a mandatory minimum penalty, and there are no foreseeable risks to community safety (Criminal Code, S. 742).
Restrictive conditions apply, such as reporting to a probation officer, house arrest, substance restrictions, and treatment and counseling requirements. Courts often cite R v Proulx
when considering conditional sentences for serious offences (Gutierrez & Chadwick, 2020). R v Proulx outlines how to uphold the principles of denunciation and deterrence, explaining, “where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction” (R v Proulx, 2000). This decision has, however, largely deterred the use of conditional sentences for serious offences and created conflicts with Section 718.2(e). The judicial duty also considers Indigenous people’s social histories and the mandatory consideration for all alternatives
to incarceration. As a result, Indigenous people who are convicted are routinely denied conditional sentences (DenisBoileau & Sylvestre, 2018; Zimonjic, 2022).
Section 717 of the Criminal Code also offers the opportunity for people found guilty of committing criminal behaviours to be redirected from the carceral system to community-based programs. This provision differs from conditional sentences in that it enables a system to bypass criminal prosecution if persons plead guilty to their offence(s) and agree to complete a treatment or healing plan as developed and overseen by a communitybased program. Indigenous communities often engage with this section of the Criminal Code
through diversion programs, but only certain offences are eligible and, like conditional sentences, must not involve a mandatory minimum penalty.
The use of mandatory minimum penalties can be problematic, particularly in regard to preventing sentencing judges from using discretion and considering appropriate sanctions that reflect the systemic and social factors endured by Indigenous people involved in criminal justice (Anderson et al., 2022; DenisBoileau & Sylvestre, 2018). Mandatory minimum penalties are thus placed at the centre of current debate and controversy. Bill C-5, which received royal assent on November 17, 2022, is an attempt by the federal Ministry of Justice to address the
systemic racism and discrimination that fuels the over-incarceration of Indigenous people. The Bill amends the Criminal Code to repeal a handful of mandatory minimum penalties and improve the feasibility of conditional sentences and community-based alternatives to imprisonment. Still, Senate debates over Bill C-5 suggest that minimal reduction to the over-incarceration of Indigenous people can be expected unless all mandatory minimums are repealed or alternative avenues are in place to “restore judicial discretion and allow judges to consider circumstances that warrant departure from mandatory minimum penalty frameworks” (Pate, 2022, p. 2434). As Bill C-5 has only recently passed, more time is required to effectively assess its impact.
Barred: Over-incarceration of Indigenous people in Canada’s criminal legal system, the health implications, and opportunities for decarceration
Section 81 of the Corrections and Conditional Release Act
Under Section 81 of the Corrections and Conditional Release Act, Indigenous communities and organizations may receive federal funding to establish facilities and assume responsibility for the care and custody of Indigenous people experiencing incarceration. Section 81 facilities are sparse, however, due to chronic underfunding and inequitable appropriation of federal funds in favour of CSC-run healing lodges (Anderson et al., 2022; Murdocca, 2020; Sandulescu, 2021; Zinger, 2022). The disproportionate assignment of Indigenous people to higher security placements also limits their access to Section 81 facilities, which are restricted to minimum-medium security classifications (Giannetta, 2021; Office of the Auditor General of Canada, 2022). As per the Act, correctional officers are required to consider the social and background factors of Indigenous people entering the prison system when conducting
security risk assessments – only for the purposes of reducing security classifications, never for increasing. Additionally, CSC requires consideration of “culturally appropriate and/ or restorative options [that] could contribute to reducing, addressing, and managing overall risk” (Office of the Auditor General of Canada, 2022, p. 7). For reasons unknown, however, evidence shows that correctional officers are not considering Indigenous Peoples’ social histories nor culturally appropriate or restorative options in their security placement decisions (Office of the Auditor General of Canada, 2022).
Another explanation for the shortage of Section 81 facilities and other community-based alternatives to Indigenous incarceration is a dearth of information about the efficacy of alternative programming, at the point of sentencing, risk assessments, and considerations for release. Clairmont and Linden’s (1998) annotated bibliography may be one of the
last comprehensive reviews of Indigenous-led and communitybased justice alternatives in Canada. Clairmont and Linden’s annotated bibliography describes initiatives such as the Community Holistic Circle Healing Program in Hollow Water First Nation, Manitoba and Biidaaban: The Mnjikaning Community Healing Model in Mnjikaning First Nation, Ontario. Their report also describes the history, implementation, and structure of noted programs, as well as program outcomes reported by Indigenous participants, victims of their crimes, and their communities. These observations help to inform legal actors in their work and support Indigenous communities in developing their own justice initiatives (Clairmont & Linden, 1998). The policy landscape and discussions surrounding the over-incarceration of Indigenous people have since shifted, thus suggesting the need to update this work.
PROMISING COMMUNITY-BASED ALTERNATIVES TO INCARCERATION FOR INDIGENOUS PEOPLE
Three broad approaches to decarceration – diversion programs, Indigenous courts, and healing lodges – emerged during the environmental scan. These are the three most common initiatives taken by federal, provincial, and territorial governments to support community-based alternatives to mainstream justice processes for Indigenous people. Each approach often comes with a mandate to reduce incarceration rates of Indigenous people in the criminal legal system, with either the direction or the involvement of Indigenous leadership (Government of Saskatchewan, n.d.; Northcott, 2022). Moreover, they represent alternatives to incarceration at different stages of the justice process, from initial interactions with the criminal legal system (diversion programs), to court proceedings (Indigenous courts), to corrections and incarceration (healing lodges). Table 2 (next page) summarizes the common characteristics and key components of the three approaches, including their design, objectives, and integrated health components.
Type of approach
Diversion programs
Location found Common characteristics
Common public health components
Indigenous courts
British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick,* Nova Scotia, Prince Edward Island, Newfoundland and Labrador,* Yukon, Northwest Territories,* Nunavut.
Programs include pre- or postcharge entry points by police or court referrals, respectively, and are typically guided by restorative justice principles. Upon accepting responsibility for criminal behaviour(s), healing plans are developed, at times including input from victims and/or community members. After a healing plan is completed, charges are dropped. If the healing plan is uncompleted, the case is diverted back to the criminal legal system.
Mental health supports and substance use treatments are often included in healing plans, depending on the participant’s needs, as well as referral to social service agencies, counselling, and other psychological and social support therapies.
Healing lodges
British Columbia, Alberta, Ontario, New Brunswick, Nova Scotia, and Nunavut.
British Columbia, Alberta, Saskatchewan, Manitoba, Ontario,** and Quebec.
Cases are heard by a judge, often with Elder guidance and input from local community members. A healing plan is developed for the accused to address the root cause of the criminal behaviour(s). After the healing plan is completed, charges against the accused are either: withdrawn; temporary halted by a Crown attorney or permanently ended by a judge; or sustained through a reduced or conditional community-based sentence.
Provides an alternative institution to serve custodial sentences that are either Indigenous-led or operated in partnership between CSC and local Indigenous communities through Memorandums of Understanding. Often provides personalized holistic healing plans for residents, cultural programs, and Elder counselling.
Healing plans are often developed using a holistic approach, providing mental health, substance use, and other social or cognitive supports such as addictions treatment or counselling, dependent on the needs of the accused.
Health, nutrition and physical exercise programs are often provided, as well as substance use and addictions treatment with harm reduction services, mother-child and parental programs, and other mental health supports as needed.
Notes: * Program is not specific to Indigenous populations. ** The healing lodge in Ontario (the Thunder Woman Healing Lodge) is currently under development, overseen by the Thunder Woman Healing Lodge Society.
Diversion programs
Diversion programs seem to be the most common communitybased alternatives to mainstream criminal justice for Indigenous people. All provinces and territories provide some form of pre- or post-charge diversion programming, with different entry points to the program and many shared characteristics. Some diversion programs like the Community Holistic Circle Healing Program in Hollow Water First Nation, Manitoba, have been fully established since the early 1980s (Government of Canada, 2021a). Other programs are still in their pilot phase, such as the Adult Diversion
Program led by the Government of Newfoundland and Labrador (2019).
The federal Indigenous Justice Program (IJP) funds many of these programs, with the aim of reducing incarceration rates of Indigenous people by building and supporting community capacity in the administration of justice (Government of Canada, 2021b). Under the program, First Nations, Inuit, and Métis communities, organizations, and governments may develop diversion programs and sentencing alternatives. Across Canada, there are examples of successful diversion programs funded by the IJP 9, such as the
Dena Keh Justice (“Our People’s Way”) program, led by Liard First Nation in the Yukon, and the Métis Community Justice Program, led by the Manitoba Métis Federation. The Dena Keh Justice program responds to matters of criminal justice in accordance with Kaska 10 traditions and values which emphasize restoration of balance and harmony within community (Liard First Nation, n.d.). Similarly, the Métis Community Justice Program provides culturally appropriate justice alternatives that are specific to Métis values, traditions, and cultures in Manitoba (Manitoba Métis Federation, n.d.).
Diversion programs seem to be the most common community-based alternatives to mainstream criminal justice for Indigenous people. All provinces and territories provide some form of preor post-charge diversion programming, with different entry points to the program and many shared characteristics.
9 Government of Canada (2018) provides an interactive resource that identifies programs funded by the IJP.
10 Kaska refers to a collective of four Kaska First Nations: Liard First Nation, Ross River Dena Council, Dease River First Nation of Good Hope Lake, and Kwadacha First Nation. It is also the name of their spoken language.
Gweyaksijigewin Teg (the Sagamok Justice Program) administers the Miwdoodaa Mino Maadiziwin “carrying a good life” voluntary diversion program for both youth and adult members or residents of Sagamok Anishnawbek (Sagamok Anishnawbek, n.d.). Participants must first consult with legal counsel and consent to participate in the program (Sagamok Anishnawbek, 2015). Entry to the program may begin before or after charges are placed for criminal behaviour(s), with eligibility assessed on a case-by-case basis. Once admitted, participants must complete a personalized healing and wellness plan, created by the Community Justice Committee, which comprises community members, Elders, and Chief and Council Representatives (Sagamok Anishnawbek, n.d.).
The Seven Grandfather Teachings guide the Community Justice Committee to create a healing and wellness plan centred on: the participant’s spiritual, emotional, physical, and mental wellbeing; the root cause(s) for their criminal behaviour(s); and the needs of the victim(s) (Sagamok Anishnawbek, 2015). Upon completion, criminal charges against the participant are either not laid or are withdrawn; however, criminal cases may be transferred to the provincial criminal legal system if healing and wellness plans are uncompleted (Sagamok Anishnawbek, n.d.). In diverting criminal matters away from the provincial criminal legal system, Miwdoodaa Mino Maadiziwin preserves safety and harmony within the community in ways that respect and uphold Anishnawbek practices and values.
Most diversion programs are informed by Indigenous principles of restorative justice. As a holistic approach, restorative justice embodies relationships-based alternatives to address criminal matters outside mainstream criminal legal systems. Restorative justice focuses on repairing harms done to victims and the community, with mediated communication between persons who committed the crime and victims. It involves hearing each party’s story, addressing their needs, and guiding a path forward to acknowledge and accept responsibility for the harms caused by the criminal activity (Wet’suwet’en First Nation, n.d.; Manitoba Métis
Federation, n.d.; Tungasuvvingat Inuit, n.d.). A healing plan is typically developed between the person accused of criminal activity and the community, as well as occasionally the victim(s), to restore balance in the impacted community. Restorative justice diversion programs led by Wet’suwet’en First Nation in British Columbia, the Manitoba Métis Federation, and Tungasuvvingat Inuit in Ontario provide examples of restorative justice practices that align with the distinct principles and cultures of their catered communities (Manitoba Métis Federation, n.d.; Tungasuvvingat Inuit, n.d.; Wet’suwet’en First Nation, n.d.). In Nunavut,
diversion programs are situated in both restorative justice and Inuit Qaujimajatuqangit (i.e., Inuit traditional knowledge) principles through the territory’s Therapeutic Justice Program. This program embodies a holistic approach, providing clinical support for criminal charges caused by or attributed to challenges involving mental health, addictions, and trauma, as well as cultural support from community counsellors and Elders. The program began as a pilot in 2019 and is planned to expand to the whole territory in the coming years (Government of Nunavut, 2022; Nunavut Department of Justice, 2019).
Policies guiding diversion programs
Ministerial policies of justice departments in Saskatchewan, Manitoba, Quebec, and Nova Scotia, as well as prosecution service policies in British Columbia, Alberta, Ontario, Quebec, Nova Scotia, Prince Edward Island, Newfoundland and Labrador,11 and the three territories12 include varying degrees of special considerations for diversion programs as they relate to Indigenous Peoples. For instance, under Alberta’s Crown Prosecution Service Guideline (2014), when considering an applicant’s eligibility to the provincial Alternative Measures Program, prosecutors are instructed to pay particular attention “to the cases of Indigenous offenders to ensure that no systemic barriers preclude Indigenous offender program referrals” (Alberta Crown Prosecution Service, 2014, p. 4).
Policies in British Columbia, Manitoba, Ontario, Quebec, and Nova Scotia include similar provisions to ensure prosecutors exercise due consideration of program eligibility for Indigenous persons accused of crimes and, at times, embed special instructions to determine the use and applicability of diversion
programs for Indigenous people (British Columbia Prosecution Service, 2023; Nova Scotia Department of Justice, 2019; Ontario Ministry of the Attorney General, 2017; Quebec Director of Criminal and Penal Prosecutions, 2022). Some provinces exempt Indigenous people from program exclusion criteria, while considering the systemic and historic factors contributing to their overrepresentation in the criminal legal system (British Columbia Prosecution Service, 2023; Quebec Director of Criminal and Penal Prosecutions, 2022). Other provinces cite Gladue principles as a reference in considering Indigenous people for diversion and other alternative sentencing programs (British Columbia Prosecution Service, 2023; Manitoba Department of Justice, 2015; Prince Edward Island Crown Attorneys’ Office, 2009).
Prosecution service policies in Newfoundland and Labrador and the three territories do not include special provisions for Indigenous people’s diversion programs specifically. Instead, Newfoundland and Labrador and the three territories direct prosecutors to consider Gladue principles and the overrepresentation of Indigenous
people in the criminal legal system when weighing factors in their decision to prosecute (Newfoundland and Labrador Department of Justice and Public Safety, 2022; Public Prosecution Service of Canada, 2014).
Alternative measures policies in Saskatchewan and New Brunswick also do not include special provisions for diversion programs and Indigenous people; in Saskatchewan, however, diversion programs are said to be developed to create “a justice system that is responsive to [the] unique needs” of Indigenous people (Saskatchewan Ministry of Justice, 2013, p. 2). This policy has led to the establishment of several diversion programs funded by the Saskatchewan provincial Ministry of Justice and delivered by First Nations, Tribal Councils, and other community-based organizations spread across the province (Government of Saskatchewan, n.d.). In New Brunswick, the public prosecutions’ alternative measures policy does not include any Indigenous-specific provisions or considerations; however, the Adult Diversion Model (2023), a guidebook for the Provincial Diversion Steering Committee, includes some considerations for Indigenous adults involved in criminal justice. The model calls
11 New Brunswick does not include Indigenous-specific provisions in its Public Prosecutions Alternative Measures policy; however, considerations for Indigenous people are included in the New Brunswick Adult Diversion Model (2023) for the Provincial Diversion Steering Committee. Further details about these considerations are discussed below (New Brunswick Department of Justice and Public Safety, 2023).
12 Prosecution services for the three territories – Northwest Territories, Yukon, and Nunavut – are provided and guided by the Public Prosecution Service of Canada’s policy deskbook (Public Prosecution Service of Canada, 2014).
Onashowewin – “the way we see justice” – is funded by the federal Indigenous Justice Program in partnership with the province of the Manitoba. Established in 2003, the program accepts referrals for diversion services from the Manitoba Crown Attorneys’ Office for summary charges (i.e., less serious offences such as theft, uttering threats, mischief, break and entry, etc.) committed by status and non-status First Nations and Métis people and Inuit. The program also provides legal and other supports for those in conflict with the law on a case-by-case basis (Onashowewin, n.d.-a). Onashowewin diversion services are guided by restorative justice principles and incorporate cultural teachings from Anishnaabe, Ininew, Ojibway-Cree, Dene, Dakota, Inuit, and Métis Nations in Manitoba (McKay & Milward, 2018). Individualized plans are developed for participants to address the root cause of criminal behaviour(s) and restore balance and safety within communities. Onashowewin also offers several rehabilitative programs that may be incorporated into individualized plans. These programs touch on: positive choices and accepting responsibility for actions; strategies for coping and controlling anger; one’s sense of belonging and cultural identity; the impacts of crime on the community; and issues with addictions and substance use (Onashowewin, n.d.-b). Evaluations based on 100 participants who attended the Onashowewin Justice Circle in 2011-2012 reveal a recidivism rate of 30% (McKay & Milward, 2018). Of 20 participants who attended the Onashowewin addictions program in that same timespan, only five people engaged in new criminal activity after completing their individualized plan (McKay & Milward, 2018). As recidivism rates remain low, sentencing decisions have also referenced Onashowewin cultural and restorative justice programs when considering appropriate conditions of a community-based conditional sentence for Indigenous people (R. v. Campbell, 2013).
for First Nations representation on the committee and requires that culturally appropriate alternative measures be available for Indigenous people (New Brunswick Department of Justice and Public Safety, 2023).
Unique to Quebec, British Columbia, Ontario, and Nova Scotia are specific policy guidelines on the use of alternative sentencing measures for Indigenous people. For example, Quebec’s Alternative Measures Program for Adults in Aboriginal Communities deals specifically with criminal
activities that take place in a First Nations or Inuit community. This program is overseen by a community justice committee and operates separately from the provincial diversion program (Program for the Non-Judicial Treatment of Certain Criminal Offences Committed by Adults) that is intended for the general population (Quebec Ministry of Justice, 2015).
In British Columbia, Indigenousspecific guidelines are embedded in the prosecution service’s Alternatives to Prosecutions –Adults (2023) policy. This policy
instructs the provincial crown counsel to attempt to identify an accused person’s Indigenous identity, as applicable, to ensure consideration of “every reasonable alternative to prosecution before approving a criminal charge against an Indigenous person” (p. 5) and determine if “bias, racism, or systemic discrimination played a part in the accused coming into contact with the criminal justice system” (p. 6). The policy acknowledges systemic antiIndigenous racism woven into the criminal legal system, as well as the ongoing effects of colonialism that draw Indigenous people before the
Alternative Measures Program for Adults in Aboriginal Communities, Quebec
In 2001, Quebec established an Alternative Measures Program for Indigenous adults in First Nations and Inuit communities. The program is funded under the Indigenous Justice Program (IJP), in partnership with the Ministère de la Justice du Québec. It was revised in 2015 to expand its criteria for eligible offences (Viens, 2019). For communities to participate, community justice committees must first be established and a Memorandum of Understanding signed with Quebec’s Director of Criminal and Penal Prosecutions (DCPP), who refers participants to the program (Quebec Ministry of Justice, 2015). The justice committee works with program participants to suggest alternative measures –often community work, psychological treatment/therapies, or other social supports – to repair harm in the community, as well as to address the needs of victim(s) and the program participant and confront the underlying factors that led to the offence. The DCPP must approve the justice committee’s suggestions, at which point the justice committee then supervises a process of “reconciliation and reparation” (Viens, 2019, p. 158). All charges are dismissed after successful completion of the alternative measure(s). If uncompleted, charges are reverted back to the provincial system (Quebec Ministry of Justice, 2015). As of 2019, 24 First Nation (including Abénakis, Anishnabek [Algonquins], Atikamekw Nehirowisiw, Eeyou [Cree], Hurons-Wendat, Innus, Malécites, Mi’gmaq, Mohawks, and Naskapis) and Inuit communities have developed diversion services (see for example, Mohawk Council of Akwesasne’s Adult Diversion Program, [n.d.]).
At the surface, the objectives of Quebec’s Alternative Measures Program are to promote communitybased administration of justice through the platform it creates to incorporate laws and practices that are specific to the governing First Nation or Inuit community. However, as a state-controlled program, communities are restricted by heavy oversight and dependent on state funds and resources, creating a relationship that is often strained by administrative and financial barriers (Viens, 2019). In 2019, a public inquiry into Indigenous diversion programs (among other provincial services) heard testimonies of insufficient program budgets, administrative hurdles, resource and infrastructure deficiencies, and restrictions on offence eligibility, which together largely limited the use, reach, and impact of community-based diversion services (Viens, 2019). The inquiry also found limited referrals to programs, which it attributed to underreporting and high staff turnover, as well as a gap in diversion services for Indigenous people in urban areas, which it linked with state-level administrative concerns (Viens, 2019).
Such challenges may fall into the narrative identified by the commission, in which Indigenous legal systems are “kept in a severe state of subordination, treated as inferior and relegated to folklore” (Viens, 2019, p. 304). This narrative often results from competing justice ideologies between Indigenous perspectives, which tend to collectively centre on accountability, reparation, and healing, and the colonial point of view of denunciation and deterrence. Still, there are promising community-led programs across the province, each evincing the legitimacy and vitality of their distinct First Nations and Inuit laws and legal systems (Viens, 2019). Challenges to the functionality and legitimacy of Indigenous diversion programs may thus reveal a greater need for legal pluralism of Indigenous and colonial systems, as opposed to adapting one system to conform with another, with due recognition of and equitable resource allocation to communities to support this endeavour.
courts. Traditional or culturalbased Indigenous programs are encouraged to fill the role of alternative measures (British Columbia Prosecution Service, 2023).
Ontario and Nova Scotia have established standalone policies and directives to guide criminal matters concerning Indigenous people. Nova Scotia’s Fair Treatment of Indigenous Peoples in Criminal Prosecutions in Nova Scotia (2018) policy addresses systemic and ongoing discrimination against Indigenous people in the criminal legal system by supporting crown attorneys in understanding and implementing Gladue principles throughout all legal practices, and by supporting Indigenous community-based justice initiatives, namely the federally and provincially funded Mi’kmaw Customary Law Program. The policy also includes many other objectives that collectively aim to dismantle systemic oppression of Indigenous values and practices within the criminal legal system. Examples include adapting regulatory terms of prosecution services (e.g., trial, sentencing, bail) to align with Gladue principles, addressing anti-Indigenous racism, and providing cultural and linguistic services to improve the cultural appropriateness of court and other legal proceedings. Moreover, the policy stipulates that all custodial options for sentencing must be considered as a last resort for all
self-identifying status and nonstatus First Nations people, Inuit, and Métis people (Nova Scotia Prosecution Service, 2018).
Similarly in Ontario, the provincial Crown Prosecution Directive No. 20: Indigenous Peoples (2019) directs prosecutors to acknowledge the systemic factors that contribute to the over-incarceration of Indigenous people and instructs their practice to prioritize alternate forms and Indigenous methods of justice, such as diversion programs and restorative justice, at all stages of criminal proceedings (e.g., prosecution, sentencing, bail). This directive also details the role and structure of Gladue reports to inform sentencing procedures. It also emphasizes the importance of establishing stronger working relationships between prosecutors, police, and Indigenous communities, including Indigenous leaders and Elders, to “ensure social harmony and community safety” (Ontario Ministry of the Attorney General, 2019, p. 1). Based on the information this review was able to gather, there have yet to be publicly available evaluations for either this directive or the abovementioned policy in Nova Scotia, thus presenting a rich area for further research.
Indigenous courts
Indigenous courts — often interchanged with Gladue, First Nations, Indigenous Peoples’, or Aboriginal courts — adopt a community-based approach to avoid incarceration by imposing alternative measures at the point of sentencing within the court system. Indigenousspecific courts exist in British Columbia, Alberta, Ontario, New Brunswick, Nova Scotia, and Nunavut. Other provincial courts that incorporate Indigenousspecific elements were identified but were excluded from this analysis because their primary focus is not community-based alternatives to mainstream criminal legal systems for Indigenous people. Examples of excluded initiatives include Creespeaking courts in Saskatchewan (Courts of Saskatchewan, n.d.) and satellite courts in First Nation communities in Alberta and Nova Scotia (Provincial Court of Alberta, n.d.-b; The Courts of Nova Scotia, n.d.-b).
The Indigenous courts included in this review operate as an arm of their respective provincial or territorial court system. They mainly exclude trials; instead, they largely handle bail and sentencing hearings. Most Indigenous courts share similar characteristics to the diversion programs discussed above. Upon assuming responsibility for their criminal behaviour, Indigenous people have the option of having
Hazelton Indigenous Court, Hazelton, British Columbia
Hazelton Indigenous Court presides as a specialized court of the provincial court system. It is one of eight Indigenous sentencing courts in British Columbia (others are located in New Westminster, North Vancouver, Kamloops, Duncan, Nicola Valley [Merritt], Prince George, and Williams Lake). Each court was created in collaboration with local First Nations and Indigenous legal organizations and operates in a similar fashion (Provincial Court of British Columbia, n.d.). Hazelton Indigenous Court was established in 2021 and serves Indigenous people who have pled guilty to a criminal offence and agreed to have their case heard by the court. A council of Gitxsan Elders works alongside the sentencing judge to hear from the accused and develop a restorative healing plan. Each Elder receives training on the criminal legal system to support the meaningful collaboration between Indigenous, specifically Gitxsan, and colonial legal systems (British Columbia Attorney General, 2022).
The court proceedings take place at a round table with seats for the judge, panel of Elders, the accused, the prosecutor and defence lawyer, as well as any others invited by the accused for support. The victim(s) will at times also sit at the table. Each person at the table has a chance to speak about the offence and its impact. The accused is also given time to speak to their unique circumstances and discuss what led to their role in the criminal behaviour. The judge then imposes a sentence, incorporating a healing plan as recommended by the council of Elders. Guided by principles of restorative justice, the healing plan is typically crafted to address the root cause of offending. It incorporates cultural, social, and health-oriented elements and tasks to restore balance and support the convicted person’s rehabilitation and well-being. The healing plan must be completed within a specified time, with regular check-ins to monitor progress. In a review of its first year, the Hazelton Indigenous Court heard 11 cases, created 10 healing plans, and saw up to two participants complete their individualized healing plan with the support of their community (British Columbia Attorney General, 2022; Provincial Court of British Columbia, n.d.).
their case heard in an Indigenous sentencing court, in which case a healing plan is incorporated into their sentence (Clark, 2016; New Brunswick Office of Attorney General, 2016; Provincial Court of Alberta, n.d.-a; Provincial Court of British Columbia, n.d.; The Courts of Nova Scotia, n.d.-a). The healing plan is a holistic restorative plan, typically developed for and with people who are convicted, with direction from Elders and extensive community input (Provincial Court of British Columbia, n.d.; The Courts of Nova Scotia, n.d.-a). The plan is grounded in cultural teachings and practices and informed by legal principles specific to governing Indigenous communities or communities served by the Indigenous court. It is designed to address the underlying factors that precipitate criminal activity (New Brunswick Office of Attorney General, 2016; Provincial Court of British Columbia, n.d.; The Courts of Nova Scotia, n.d.-a). In Gladue courts in Ontario and the Elsipogtog Healing to Wellness Court in New Brunswick, successful completion of the healing plan may result in a stay of proceedings or withdrawal of criminal charges (Clark, 2016; Public Safety Canada, 2021).
The process within Indigenous courts differs slightly, depending on the structure of the court and its formal designation as an Indigenous versus Gladue court. The Wagmatcook Provincial Court in Nova Scotia and Nunavut Court of Justice, for instance, hear both criminal trials and conduct sentencings but do not specialize in the development of healing plans for Indigenous people (apart from Wagmatcook’s Healing to Wellness and Gladue Courts) (The Courts of Nova Scotia, n.d.-a; Nunavut Courts, n.d.). Whereas an Indigenous court may be considered all encompassing, a Gladue court (e.g., Ontario and Nova Scotia) specializes in the application of Indigenous-specific provisions of the Criminal Code, particularly Section 718.2 (Clark, 2016), as directed by the principles set out in R. v. Gladue (1999). As such, Gladue courts prioritize community-based sentences and referrals to diversion programs to ensure custodial sentences are a last resort. What is more, they indicate the use of Gladue reports in the sentencing process, which is not a guaranteed measure in all Indigenous courts, such as the Elsipogtog Healing to Wellness Court in New Brunswick.
Gladue courts began in Ontario to ensure the principles set out in R. v. Gladue (1999) were properly and routinely applied to criminal cases involving Indigenous people.13 The first court opened in 2001, leading to 15 individual Gladue courts as of 2022 (Ruigrok & Dzisiak, 2022). An evaluation of the first Gladue court in Toronto, Ontario, found the presence of the court improved awareness among legal actors (e.g., crown and defense counsels, judges) of the importance of Gladue principles and the underlying differences between Gladue and other courts “in acknowledging the circumstances and meeting the needs” of Indigenous people (Clark, 2016, p. 49). The evaluation confirmed the court’s success in its overarching objective to find and administer alternative sentences to incarceration (Clark, 2016). This success was largely attributed to the Gladue court’s strong working relationship with Indigenous communitybased organizations and legal services. Such organizations routinely offer direction to and accept referrals from the court for its diversion services. This relationship was found to strengthen cultural connections for Indigenous people involved
13
Gladue principles refer to those laid out in R. v. Gladue (1999) and a judge’s duty to consider all available sanctions, other than imprisonment, for Indigenous people, with particular attention paid to their background, unique systemic factors, and Indigenous heritage.
Elsipogtog Healing to Wellness Court, Elsipogtog First Nation, New Brunswick
The Elsipogtog Healing to Wellness Court is the only Indigenous court in New Brunswick. It is a specialized provincial court, also known as a therapeutic court. It began as a pilot project in 2010, officially opening in 2012 (Clairmont, 2013). The court was established as a meditative response to disproportionate social disadvantages and inequities in Elsipogtog First Nation, driven by the ongoing effects of colonialism that have fuelled high crime rates in the community. In its development, Elsipogtog First Nation leaders advocated for strong community engagement and local control over the administration of justice as it pertains to Elsipogtog First Nation’s unique needs and priorities. A research team visited similar models across Canada to inform its development, such as the Alexis, Siksika, and Tsuu T’ina First Nations courts in Alberta, the satellite court in Eskasoni First Nation in Nova Scotia, and Gladue courts in Ontario, among others. Elsipogtog Healing to Wellness Court has since become a community asset to handle matters of criminal justice through culturally sensitive and appropriate ways, based on Elsipogtog First Nation values and principles (Clairmont, 2013).
The provincial policy Specialized Provincial Courts oversees the court’s proceedings, describing the court’s objective to “bridge the gap between the provincial court and Aboriginal culture” (New Brunswick Office of Attorney General, 2016, p. 2). The court hears cases from members of Elsipogtog First Nation who are charged with criminal offences that took place in the surrounding area (Kent County) and have mental health, substance use, or cognitive challenges, with special attention paid to fetal alcohol spectrum disorders (FASD) (Public Safety Canada, 2021). Clients of the court must enter a guilty plea and complete an individualized treatment plan, ordered by the judge and developed with Elsipogtog First Nation Elders and medical and mental health professionals. If it is the client’s first-time offence, criminal charges are dropped after the treatment plan is completed. If the client has previous offences, charges are kept and a sentence is imposed, although it is often a conditional or reduced sentence once the treatment plan is completed (Public Safety Canada, 2021). As with other Indigenous courts, the treatment plan addresses underlying causes that have led the accused to the criminal behaviour(s), with both their and the victim(s)’ needs in mind. Communitybased services are often embedded in treatment plans, such as counselling, specialized-therapies, drug and alcohol programs, including methadone programs, parent-child programs, as well as FASD diagnosis, treatment, and prevention (Clairmont, 2013).
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in criminal justice, increase their engagement in cultural activities, reduce recidivism, and increase opportunities to address their health and social needs through connections to harm reduction, substance use, counselling, housing, employment, and other community-based support services (Clark, 2016).
The Nunavut Court of Justice is particularly unique, as it is the only unified court in Canada, meaning it assumes the role and legal authority of both a superior and territorial court. The court relies on the advisement of Inuit Elders in its sentencing procedures and is known to pursue community-based sentencing alternatives (Couturier, 2020; Nunavut Courts, n.d.). Despite being in Inuit territory, the Nunavut Court of Justice reflects an “institutional paradox” (Couturier, 2020 p. 326). In one way, the court upholds Inuit maligait (law or custom) and is increasingly guided by Inuit Qaujimajatuqangit (IQ) (Inuit traditional knowledge). In another way, the court is subject to the imposition of colonial law in cases involving Inuit (Couturier, 2020). This arrangement presents both opportunities and challenges in sentencing. For example, as the
pendulum sways toward deference to Inuit maligait, sentencing decisions have been tailored to align with IQ principles. Couturier (2020) found this to be the case in R v Itturiligaq (2018), where an offence that carried a mandatory minimum penalty of four years was found to violate the accused’s Charter rights and contradict IQ principles. In this case, the mandatory minimum penalty would have required the accused to serve in a federal penitentiary outside Nunavut, thereby separating the accused from their family and home community. As the judge described, the relocation to a federal penitentiary reflects a “twenty-first century continuation of the philosophy of forced resettlement [and] Residential Schools” (R v Itturiligaq, 2018). Although the mandatory minimum penalty of four years was struck down, a reduced custodial sentence was imposed, which Couturier (2020) attributes to the stagnation and imposition of colonial principles of deterrence and denunciation, “suggesting that Canadian sentencing law, in its current form, precludes the full realization of IQ principles” (p. 322). In the Nunavut Court of Justice, there is thus room for growth and reformation
for Inuit maligait and colonial laws to coexist structurally and meaningfully.
Other variations of specialized courts also support alternatives to incarceration for Indigenous people, but they are not specific to Indigenous populations. For example, Wellness Courts in the Yukon and the Northwest Territories are considered offenderspecific courts, as opposed to crime-specific. These courts hear cases from Indigenous and non-Indigenous people with mental health, addictions, or cognitive challenges, such as Fetal Alcohol Spectrum Disorder. Like Indigenous courts, these wellness courts develop a holistic plan to address the root causes for offending and consider the needs of people who are found guilty of criminal behaviours to reduce their likelihood of re-offending. Participants of a Wellness Court must return after successfully completing their wellness plan, at which time their case is heard and their charges are stayed, withdrawn, or reduced, or a conditional sentence is imposed (Government of Northwest Territories, 2022; Yukon Community Wellness Court, 2009).
Although community-based Indigenous courts are limited to the administration of criminal law, they do establish space within criminal legal systems to hear and resolve cases outside colonial procedures and with approaches that align with governing Indigenous communities or communities serviced by the courts.
Community-based Indigenous courts
Community-based Indigenous courts may be realized through self-government agreements or under First Nations authority according to the Indian Act
In terms of the former, selfgovernment agreements may be negotiated between First Nations, Inuit, or Métis communities; the federal government; and a provincial or territorial government. Community-based Indigenous courts are established across the country, such as the Teslin Tlingit Peacemaker Court in the Yukon, resulting from the Teslin Tlingit Council Final Agreement, and the Court of Kahnawá:ke in Quebec, which
was established in accordance with the terms of Sections 81 and 107 of the Indian Act. The Teslin Tlingit Peacemaker Court hears cases from both Tlingit and non-Tlingit people who have committed acts in conflict or violation of Teslin Tlingit Law. The court operates through two processes: a mediation process, where cases are heard by a council of peacemakers from the Teslin Tlingit community; and adjudication-type services aimed at resolving disputes relating to Teslin Tlingit council decisions and application of Teslin Tlingit law. Integral to the court’s operations is the foundation of Ha Kus Teyea , “which is to uphold the Tlingit customary approaches where possible, and apply the principles of respect, love, harmony, honesty, trust and accountability” (Teslin Tlingit Council, 2015, p. 3). With a specialization in Teslin Tlingit law as per the self-government agreement, the court does not have jurisdiction in relation to criminal law and court decisions may be appealed by the Supreme Court of Yukon (Government of Canada, 2011).
The Court of Kahnawá:ke in Quebec differs slightly, as its authority over the administration of justice stems from Sections 81 and 107 of the Indian Act. 14
The court hears matters related to Kahnawake law, traffic offences, and some criminal offences occurring in Kahnawà:ke territory. It also provides primarily mediation and restorative justice services that are vastly similar to diversion programs (Mohawk Council of Kahnawá:ke, n.d.). The court has some authority in criminal matters on the grounds of Section 107 of the Indian Act, although this limited authority is restricted to summary convictions (defined in Part XXVII in the Criminal Code). Further work is also needed to ensure provincial courts in Quebec fully recognize the Court of Kahnawá:ke’s case decisions (Carpenter, 2023).
Although community-based Indigenous courts are limited to the administration of criminal law, they do establish space within criminal legal systems to hear and resolve cases outside colonial procedures and with approaches that align with governing Indigenous communities or communities serviced by the courts. As resolutions within these courts do not equate to incarceration, they rather embed measures to repair the harms of unlawful activities and look to community resources to address the health, cultural, and social needs of persons involved in criminal activity and victims.
14 Section 81 of the Indian Act defines the powers of First Nations to make by-laws, while Section 107 refers to the appointment of Justices of the Peace in First Nation communities to oversee offences committed by First Nations persons that are in violation of the Act or select offences under the Criminal Code, such as cruelty to animals or common assault (Indian Act, RSC 1985. c. 1-5).
There are ten healing lodges across Canada that house both Indigenous and non-Indigenous people serving custodial sentences. The lodges are designed to provide an alternative to prison and focus on Indigenous-specific (although largely First Nations-specific) cultural programs and services. Healing lodges were initially established in response to the over-incarceration of Indigenous people in the federal carceral system and the failure of prisons to address the rehabilitative and supportive needs of Indigenous women. A Task Force on FederallySentenced Women investigated the over-incarceration of Indigenous women and emphasized the need to maintain Indigenous women’s close connection to their cultures, families, and home communities (NWAC, 2019). The Task Force urged CSC to seek leadership from Indigenous communities in the development of healing lodges, drawing on community expertise and guidance to remove colonial influences and ensure that support services for Indigenous women are socially and culturally relevant (NWAC, 2019). As a result, the first lodge for Indigenous women, Okimaw Ohci in Nekaneet First Nation, Saskatchewan, opened in 1995. The lodge opened as a CSCrun facility, initially intending to shift control to Nekaneet First Nation in its early years; however, this shift has yet to occur (NWAC, 2019).
Two types of healing lodges exist in Canada: those run by CSC and those led by Indigenous communities. Both types are based on an agreement between the federal government and an Indigenous governing body or organization, as per Section 81 of the Corrections and Correctional Release Act. Both types of healing lodges are also funded by CSC. There are four CSC-run healing lodges: two in Saskatchewan (Okimaw Ohci Healing Lodge and Willow Cree Healing Lodge), one in Alberta (Pê Sâkâstêw Centre), and one in British Columbia (Kwìkwèxwelhp Healing Village). There are six Indigenous-led healing lodges: two in Alberta (Stan Daniels Healing Centre and Buffalo Sage Wellness House), two in Manitoba (O-chi-chak-ko-sipi First Nation Healing Lodge and Eagle Women’s Lodge), one in Saskatchewan (Prince Albert Grand Council Spiritual Healing Lodge), and one in Quebec (Waseskun Healing Centre). There are no Indigenousled healing lodges in British Columbia, Ontario, the Atlantic provinces, or the territories, although plans are underway for a healing lodge in Ontario, led by the Thunder Women Healing Lodge Society. Currently, however, these plans have been halted because of funding shortfalls from the federal government (White, 2022).
Buffalo Sage Wellness House, Native Counselling Services of Alberta
Buffalo Sage Wellness House was established in 2011 as a community residential facility, managed by the Native Counselling Services of Alberta (NCSA) under Section 81 of the Corrections and Correctional Release Act. The facility is one of two Section 81 facilities in Canada that uptake the care and custody of Indigenous women serving a federal sentence or who are on a conditional release. (Eagle Women’s Lodge in Manitoba is the second Section 81 facility for Indigenous women and opened in 2019). Buffalo Sage Wellness House can house up to 28 residents and was 75% occupied in 2021-22 (Zinger, 2022). To transfer to Buffalo Sage Wellness House, residents must: be classified as minimum security as per CSC standards; present low risk to public safety; complete select CSC programs; complete an interview; be willing to work with Elders; and participate and engage in Indigenous cultural practices and teachings throughout their sentence (Native Counselling Services of Alberta [NCSA], n.d.). Located in an urban centre, the facility is near education and employment opportunities, as well as public transit, all of which residents often take advantage of through temporary absences and parole arrangements. The location also improves feasibility of family visits and an active mother-child program (NCSA, n.d.).
Buffalo Sage Wellness House differs from CSC-run facilities and healing lodges in several ways. For instance, residents' artwork covers the walls, security is minimal (e.g., guards are not used, only security cameras throughout the facility), and residents are individually supported by a correctional plan that is focused on their social, emotional, physical, spiritual, and educational needs for effective and sustainable reintegration back into the community. Murdocca (2020) recounts a former resident’s experience at Buffalo Sage Wellness House, describing it as a place for survival and as “a second chance—a chance to heal and restore a sense of hope for the future that [is] lost […] in prison” (p. 48).
Buffalo Sage Wellness House programs are trauma-informed and gender-based. For example, the Spirit of a Warrior Program is guided by Elders and designed to address intergenerational cycles of trauma and violence. It supports women’s healing from their individual experiences of gendered violence and colonialization by teaching them ways to express themselves through art and words as they explore the generational impacts of residential schools, the Sixties Scoop, and historical trauma (NCSA, n.d.). In concert with other programs, such as mother-child and addictions programs, Buffalo Sage Wellness House creates a healing space tailored to the needs of Indigenous women.
Benefits of and opportunities with Indigenous healing lodges
Several studies recount the many opportunities and positive outcomes associated with Indigenous people serving their sentences in community-based and Indigenous-led healing lodges (referred to hereafter as Section 81 healing lodges) when compared with Indigenous people’s experiences in CSC correctional facilities (being nevertheless cognizant that both Section 81 and CSC-run healing lodges remain heavily tied to CSC facility policies and procedures). The proximity to an Indigenous community alone means that for some Indigenous people, attending a Section 81 healing lodge may facilitate returning to their home community, thus limiting separation from their family and community. Attending a Section 81 healing lodge may also allow Indigenous people serving their sentence to return to
the place where they committed their offence, thus facilitating their reconnection with their spirit for the purpose of healing (Murdocca, 2020). For other Indigenous people, attending a Section 81 healing lodge may mean finding, re-learning, or re-connecting with their cultural identity. In any case, healing is at the core of each experience with Section 81 healing lodges.
In comparing CSC-run and Section 81 healing lodges, Indigenous people residing in Section 81 healing lodges persistently present fewer safety risks to society and greater potential for community reintegration. They also experience more unescorted temporary absences and show improvement in both their healing journey and personal growth throughout their sentences, especially in areas of prosocial attitudes, community functioning, relationships, and management of substance use
For other Indigenous people, attending a Section 81 healing lodge may mean finding, re-learning, or re-connecting with their cultural identity. In any case, healing is at the core of each experience with Section 81 healing lodges. (Hanby et al. 2022). Access to Elders counselling is improved within Section 81 healing lodges, as are individualized healing plans to guide each resident’s sentence (Hanby et al., 2022). In comparison, Indigenous people in CSC-run healing lodges are more likely to participate in CSC correctional programs than healing plans, and they present higher safety risks to society upon release. Notably, residents of CSC-run healing lodges are more likely (with statistical difference) to return to custody with new offences, as demonstrated by a 10.4% recidivism rate, compared to 5.0% among residents of Section 81 healing lodges (Hanby et al., 2022).
Both types of healing lodges provide an alternative custodial sentence centred on Indigenous values and practices. However, Section 81 healing lodges more fully embrace this mandate through their structure, design, and location. Section 81 healing
Spiritual Healing Lodge, Prince Albert Grand Council, Wahpeton Dakota First Nation, Saskatchewan
The Spiritual Healing Lodge is managed by Prince Albert Grand Council (PAGC) under Section 81 of the Corrections and Correctional Release Act. It originally opened in 1997 under a tripartite agreement between the PAGC, CSC, and the Saskatchewan Ministry of Justice. Although it closed in 2012 owing to unfulfilled agreements, the lodge reopened in 2014 as a Section 81 facility. With the new arrangement, the facility can house up to 12 residents (previously 25) and has become a place of healing for Indigenous men experiencing incarceration in a federal institution. It is one of four Section 81 facilities designed specifically for Indigenous men (others in Alberta, Manitoba, and Quebec). To transfer from a federal prison to the Spiritual Healing Lodge, residents must be considered minimum security, not be serving a sentence for a prison breach or escape or having outstanding charges, be committed to following a spiritual and cultural healing plan, be medically fit and drug-free (apart from some prescription drugs), have support from a parole officer, and complete an interview (PAGC, n.d.). Although smaller than other lodges, the lodge was 58.33% occupied in 2021-22 (Zinger, 2022). The lodge is composed of six cabins, talking circle and administration rooms, and sweat lodges for summer and winter seasons (Eneas, 2017).
Programs offered at the Spiritual Healing Lodge centre on Indigenous men’s mental, physical, and emotional needs and are rooted in First Nations cultures, values, and customs. Individual healing plans are created for residents at the direction of an Elder Advisory Group, including Elders from Dene, Dakota/Plains Cree, Woodland Cree, and Swampy Cree tribes of the Prince Albert Grand Council. Plans often include activities and programs provided by the Elder Advisory Group, such as weekly sweats, pipe ceremonies, medicine wheel teachings, traditional parenting and healthy relationships programs, and personal counselling with Elders, among others (PAGC, n.d.). Situated on Wahpeton Dakota First Nation, residents of the Spiritual Healing Lodge may also access community-based programs and services such as addictions counselling, anger management, nutrition education, and clinics for sexually transmitted infections, as well as cultural activities such as beading and drum making (PAGC, n.d.). All plans prioritize the cultural well-being of residents, either learned, re-learned, or strengthened, as well as life skill building and educational opportunities (Eneas, 2017). In all its operations, the Elder Advisory Group ensures the delivery of health and social services and programs that are culturally specific and trauma informed.
lodges are situated in places that are closely connected to the land, offering many cultural and spiritual nature-based programs. Moreover, their operations are led by the cultural practices and principles of the governing Indigenous community or organization (NWAC, 2019). This
operational model does, however, present challenges relating to pan-Indigenous programs and services. For instance, healing lodges led by O-Chi-Chak-KoSipi First Nation, Manitoba and Wahpeton Dakota First Nation, Saskatchewan provide services and programs based
on values and beliefs specific to their respective community, which ultimately limit their relevance and applicability to other First Nations people, Inuit, or Métis people. Section 81 healing lodges led by Indigenous organizations, including Native Counseling Services of Alberta
and Indigenous Women’s Healing Centre Inc. in Manitoba, do not specify the use of distinctionsbased programming for residents and rather characterize their facility to provide “Indigenous” or “Aboriginal” spiritual and cultural programming. The Waseskun Healing Centre in Quebec is the only Section 81 healing lodge to specify programs that are available to both First Nations and Inuit cultures. Waseskun Healing Centre programs are centred on Waseya (Cree, meaning “Light of the Spirit”), as well as Inuit cultural activities and access to Inuit Elders under the program Nukivut (Inuktitut, meaning “our strength”) (Waseskun, n.d.). Métis-specific programs are not identified among any Section 81 healing lodges.
To address pan-Indigenous approaches to healing lodges, NWAC (2019) suggests smallscale Section 81 facilities that are maintained by smaller Indigenous communities. Distinctions-based approaches may also be adopted to fill program gaps for Métis people and Inuit. This idea is challenged, however, by a lack of awareness among Indigenous communities and organizations about alternatives to incarceration and the potential of Section 81 agreements (Denis-Boileau & Sylvestre, 2018; Murdocca, 2020; NWAC, 2019; Sandulescu, 2021). Under these agreements, Indigenous communities or organizations may oversee the care and custody of Indigenous people experiencing incarceration. This provision is broad in
nature and is not confined to the establishment of healing lodges, despite its tendency to do so in practice. Section 81 agreements may thus be used to harness current community-based justice alternatives to expand their scope and impact and facilitate innovative approaches to Indigenous decarceration. Since most Indigenous communities have now established some form of restorative justice program (Murdocca, 2020), with increased awareness and promotion of Section 81 agreements, there is potential to build off these programs to include decarceration and improve the accessibility and use of community-based and Indigenous-led alternatives to incarceration.
Since most Indigenous communities have now established some form of restorative justice program (Murdocca, 2020), with increased awareness and promotion of Section 81 agreements, there is potential to build off these programs to include decarceration and improve the accessibility and use of community-based and Indigenous-led alternatives to incarceration.
Challenges with Indigenous healing lodges
Inequitable access and administrative barriers to healing lodges are persistent issues facing Indigenous people involved in the criminal legal system. To be transferred to a healing lodge, applicants must be classified as minimum-security risk, or in fewer cases, as medium security risk. They must demonstrate a sincere commitment to Indigenous cultures and to a healing journey as part of their correctional plan. As described earlier, the disproportionate assignment of Indigenous people to high security placements, especially among Indigenous women, poses a barrier to enable transfers to healing lodges. High security placements not only limit Indigenous people's program
eligibility, but also prolong the process of reducing their security classification through correctional programs (Murdocca, 2020; NWAC, 2019). Moreover, Section 81 healing lodges have long received considerably less per capita funding than CSCrun healing lodges and offer lower compensation for staff. Consequently, Indigenousled healing lodges have higher staff turnover, inadequate infrastructure, and restricted capacity to house and support residents (NWAC, 2019; Zinger, 2022). Funding issues are compounded by requirements set out in Section 81 agreements to run Indigenous-led healing lodges, such as the training requirement for non-CSC staff to learn about correctional operations. Training can cost up to $34,000, for instance,
but is not accounted for in the CSC-allocated Section 81 facility budget (NWAC, 2019). Additionally, if correctional officers have a lack of knowledge and awareness about Section 81 facilities, they may be hesitant to sign off on transfers to an Indigenous-led healing lodge (Murdocca, 2020). These challenges contribute to a low use and high vacancy rate of Section 81 facilities. In 2021-22, Indigenous-led healing lodges had an average occupancy rate of just 55%, compared to 97% in 2012-13 (Zinger, 2022).15 More research is needed to understand this phenomenon and whether changes to occupancy rates are driven by lack of knowledge and awareness, inadequate resources, or a combination of impeding factors.
15 Values do not include average occupancy rates from the following: Prince Albert Grand Council Spiritual Healing Lodge because of missing values; and Eagle Women’s Healing Lodge because it newly opened in 2019.
Independent of administrative and financial challenges, critics have questioned the underlying function and purpose of healing lodges, suggesting they privilege colonial principles of imprisonment, maintain Western powers and authority in matters of criminal justice (NWAC, 2019), and normalize the overincarceration of Indigenous people (Giannetta, 2021). One critic explains, “[healing] lodges operate within penitentiaries (a colonial institution) after an Indigenous offender has been sentenced (through a colonial justice system) for committing a crime (defined by the colonial political system) caused by underlying social issues (stemming from colonialism)” (Giannetta, 2021, p. 4). The NWAC affirms and expands this idea with reference to Okimaw Ohci:
CSC still maintains the admission criteria, transfer eligibility, and definition of successful rehabilitation for Healing Lodge prisoners, meaning that although Okimaw Ohci was designed to support Indigenous conceptions of healing, ultimate control of the Healing Lodge still rests with the colonial authority of CSC (NWAC, 2019, p. 13).
According to the NWAC (2019), CSC’s authority may also extend to the meaning and authentication of a healing journey, appropriating Indigenous values and concepts that are embedded within this process. A colonial stance on healing largely contrasts with Indigenous worldviews, as it generally encompasses a means of healing from the historic impacts of colonization and resulting trauma and dismisses the idea of colonialism’s continued legacy of perpetuating contemporary social and health inequities (NWAC, 2019). In adopting this narrow understanding of the adverse effects of colonization as something contained in the past, there is little room to appreciate how colonialism plays an explanatory role in Indigenous people’s interactions with the criminal legal system. Consequently, criminal legal systems continue to deny accountability and responsibility to Indigenous people. This can be witnessed in the use of correctional programs over custodial transfers to Indigenous communities as well as in the injustice that is the overincarceration of Indigenous people in correctional facilities.
KNOWLEDGE GAPS AND FUTURE DIRECTIONS
Whether a complete diversion from the criminal legal system, a sentence heard in an Indigenous court, or a custodial sentence transferred to an Indigenous-led healing lodge, alternatives to incarceration for Indigenous people exist across Canada. This review identified Indigenous-specific initiatives in all provinces and territories, apart from Newfoundland and Labrador and the Northwest Territories. However, the literature cautions that not all Indigenous communitybased alternatives to incarceration may be identified because their information is not publicly available. For example, at the point of sentencing in a Gladue court (as well as mainstream provincial or territorial courts), conditional sentences incorporating communitybased alternatives are often included in Gladue reports and may not be available in public records (Denis-Boileau & Sylvestre, 2018). Similarly, alternatives may be included in probation orders at the direction of probation officers and, therefore, may not be stated explicitly. Friedland (2016) elaborates on this limitation, providing an example of the ethical concerns limiting publicly available information in the Tsuu T’ina First Nation Court in Alberta:
There are no public records for the majority of community-based justice programs. This can be for practical, ethical, or principled reasons. For example, mediation or therapeutic processes come with ethical confidentiality obligations, and the T’suu T’ina Peacemaking Circles make a point of burning all records once a peacemaking process is complete. Among other things, this means it is difficult or impossible for anyone outside the direct participants in the process to access or understand how decisions are made and the reasoning behind the decisions. (p. 295).
49
This also means that decisions which include referrals to diversion programs or other alternatives are not always available. It is thus fortunate that this environmental scan was able to identify several communitybased justice alternatives; however, it is important to note that some initiatives may be missing, along with their unique characteristics and effects on decarceration for Indigenous people.
For each type of incarceration alternative identified, research demonstrates the unique positive outcomes for Indigenous people and their communities, including: reducing the likelihood of reoffending and experiencing stigma associated with criminal records as a result diversion programs for Indigenous people (Clark, 2016); preserving First Nations and Inuit laws by ways of asserting their respective legal principles in Indigenous courts (Clairmont, 2013; Couturier, 2020); and creating a restorative environment grounded in Indigenous knowledges and
cultural practices in Indigenousled healing lodges (Murdocca, 2020). Yet, amidst the positive outcomes, literature and analyses also point out key limitations of community-based alternatives to be cognizant of in the pursuit of effective decarceration for Indigenous people. For instance, Balfour et al. (2018) explain how decarceration approaches can be ineffective without substantial efforts to first address the social disadvantages in vulnerable communities, as well as the issues surrounding the continuity of care between prisons and communities for those released from custody. They warn that conditions propagating current incarceration practices will persist without adequate intervention.
The restrictions imposed on Indigenous-led alternatives are also to be considered. Each approach – Indigenous-led diversion programs, courts, and healing lodges – offers administrative capacity to Indigenous communities to overlook siloed events of the
criminal legal system. Criminal law-making authority is not included in this arrangement. To date, no Indigenous group or community in Canada may enact criminal laws; this power is only under federal jurisdiction (Michel, 2023). Indigenous communities’ administrative role in criminal legal matters is therefore confined and governed by colonial principles and the federal Criminal Code. This confinement effectively overlooks Indigenous Peoples' inherent rights to selfgovernment as regards criminal legal matters (Michel, 2023). Self-governing authority is particularly strained in the operations of Indigenous-led diversion programs and courts. Here, Indigenous communities’ administrative power is only operational, and the diversion program or court is subsequently available upon a guilty plea by the Indigenous person entering the program or court. Only colonial systems handle non-guilty pleas. Indigenous people must then either enter a guilty plea or proceed to colonial-derived
adversarial procedures. The current structure of Indigenousled alternatives under these conditions thus offers a piecemeal approach to the administration of justice, compared to what should be full systemic governance over all matters of criminal justice for Indigenous people (Michel, 2023).
Nonetheless, three gaps remain in the design and delivery of each decarceration approach. First, nearly all diversion programs, courts, and healing lodges identified in this review are designed to take either First Nations-specific or panIndigenous approaches to decarceration (apart from one Métis- and two Inuit-specific diversion programs and the Nunavut Court of Justice). Distinctions-based alternatives to incarceration for Indigenous people are nearly non-existent, thereby hampering the applicability and sustainability of alternatives for all Indigenous people, especially Inuit and Métis people. Pan-Indigenous approaches to justice also call into
question the types of financial and human resource support provided to First Nations, Inuit, and Métis communities through federal programs and commitments such as the Indigenous Justice Program. Future research may therefore investigate this query to understand the opportunities or challenges posed to communities which may be stopping, prohibiting, or causing pause to further development of distinction-based incarceration alternatives.
Second, diversion programs, Indigenous courts, and healing lodges are not uniformly available across the provinces and territories. Although most provinces (BC, AB, SK, MB, ON, QC, NS, PEI), Nunavut and the Yukon have Indigenousspecific diversion programs, few have Indigenous courts (only BC, AB, ON, NB, NS, and Nunavut), and even fewer have Section 81 healing lodges (only AB, SK, MB, QC). Only Alberta has all three alternatives. British Columbia closely follows,
although it’s healing lodge is run by CSC. With different levels of community control and engagement, each type of alternative offers distinct parts to a whole that collectively help to remove Indigenous people from the criminal legal system. Even though there is limited evidence to show which type of initiative is most effective in reducing incarceration rates for Indigenous people, it may be assumed that providing multiple entry points to alternative measures is a sufficient recourse under current conditions.
Third, there is minimal recent and formal evaluative work on each of the three types of incarceration alternatives, especially impacts on the health and wellness of Indigenous people engaging with one of the alternatives. Critiques and analyses have looked at effects on recidivism, future interactions with the criminal legal system, and revitalization of Indigenous laws and practices because of incarceration alternatives (Clark, 2016; Clairmont, 2013; Hanby et al., 2022). The effects
on health and wellness are less often the focal point of formal evaluations. Anecdotical evidence and analyses do shed light on the many benefits acquired through community-based justice alternatives, especially Indigenous-led healing lodges. These benefits include healing, improved mental health, and enhanced cultural and spiritual growth (NWAC, 2019; Park, 2021). Literature also describes connections between Indigenous health and wellness and the use of diversion programs and Indigenous courts (Clairmont, 2013; Couturier, 2020; McKay & Milward, 2018). Program descriptions also infer that community-based alternatives address public health issues such as mental health and addictions, specifically opioid use disorder and fetal alcohol syndrome disorders (Onashowewin, n.d.-b; Public Safety Canada, 2021). However, policy and decision makers look to formal evaluations
to influence their decisions. More evaluative work on decarceration approaches is therefore needed to build an evidence base and entice decision makers to expand and increase supports for Indigenous communities to develop and manage their own incarceration alternatives.
At present, federal supports such as the IJP are not equipped to support Indigenous selfdetermination in justice. Rather, they focus on self-administration in justice. This means the capacity for Indigenous communities to engage in local justice is confined and restricted by federal control and decision making (Abele et al., 2021). This is the case despite the vitality of self-determination for the health and well-being of Indigenous people, which Halseth and Murdock (2020) describe as “essential for empowering and enabling communities to build capacity and gain control over the wide-ranging forces that
affect health and well-being at individual and collective levels” (p. 4). This definition has clear ties to the criminal legal system.
Formal evaluations of community-based alternatives may highlight the positive outcomes associated with community sovereignty and keeping families together.
Combined with what has long been documented in the literature about the damaging health and social effects of over-incarceration experienced by Indigenous people and their families, this evidence should drive policy change for Indigenous communities to adopt full control of their justice initiatives. The importance of community engagement in this process cannot be understated, as “the role of Indigenous knowledge is key to the actual and perceived success of restorative justice and other healing initiatives” (Murdocca, 2020, p. 53).
Finally, it is also interesting to note, though not necessarily a knowledge gap, the hyper-fixation on restorative justice initiatives when it comes to the type and design of community-based alternatives to justice. Literature explains this phenomenon as the “institutionalization of restorative justice” (McKay & Milward, 2018, p. 158) and the result of colonial governments’ decadeslong attempt to address injustices faced by Indigenous people. Since governments have begun this work, their initiatives have been based on the understanding that restorative justice is an all-encompassing approach to Indigenous legal practices and teachings (Clairmont, 2013; Denis-Boileau, 2021; McKay & Milward, 2018). This of course, is a narrow interpretation that generalizes distinct First Nations, Inuit, and Métis perspectives and paints a “incomplete portrait” of Indigenous legal teachings (Denis-Boileau, 2021, p. 587). As well, it defines the sorts of
community-based programs that may be funded and are recognized by federal, provincial, and territorial governments, rendering all other teachings or practices outside of the colonial understanding of Indigenous justice largely ignored and falsely illegitimate. Critics have drawn a connection between government powers over justice and the fixation on restorative justice:
the predominant narrative of ‘justice as healing’ is not false, but it is dangerously incomplete… it is not logical or accurate to say that healing is the only legal response to crime in Indigenous legal traditions. It is more accurate to say that healing is the only legal response permitted to Indigenous groups within most states, which monopolize the use of coercive force. (Napoleon et al. 2014, as cited in DenisBoileau, 2021, p. 587)
In other words, the fixation on restorative justice allows federal, provincial, and territorial governments to maintain the status quo and control what constitutes alternatives to its mainstream criminal legal system. With this, coloniality isolates certain components of Indigenous justice teachings, such as healing, which pose little threat to the dominant principles of colonial justice models that are denunciation and deterrence with permissible force (DenisBoileau, 2021). Future research must privilege other forms and practices of First Nations, Inuit, and Métis legal principles and teachings to increase awareness and inform a more equitable take on legal pluralism of Indigenous and Western legal systems.
Future research must
privilege other forms and practices of First Nations, Inuit, and Métis legal principles and teachings to increase awareness and inform a more equitable take on legal pluralism of Indigenous and Western legal systems.
Why not start to ask the Elders what worked in the old days before there was a prison system, because it worked. If a person goes to prison, and comes out worse, then what good is it really doing for society when they were originally supposed to be brought into prison to be corrected, or to be better people? It’s a waste of money, time – everything. The person comes out worse, there are more victims. Where does it stop?
Thorne, C. (an Indigenous person in prison), as cited in Prisoners’ Legal Services (2023, p. 88).
This report addresses a knowledge gap by exploring Indigenous-led community supports and alternatives to prison, otherwise characterized in the literature as “niche areas in need of precise research” (Peterson, 2019, p. 56). Space is created within this environmental scan for jurisdictions to learn from one another about their mechanisms for supporting Indigenous decarceration. As well, legal actors, policymakers, public health practitioners, researchers, and Indigenous communities can isolate information of possible interest to them within this scan to inform their work and empower First Nations, Inuit, and Métis communities to enhance their involvement in Indigenous decarceration. That said, it would be ignorant to conclude this report based on the exploration of content alone, and without provoking thought and consideration for the questions this topic and research begets. For instance, one must consider how this information fits into the current climate and how to move forward.
In exploring the federal, provincial, territorial, and community-based approaches to Indigenous decarceration and their implications for population and public health, it is important to understand calls for decarceration from the perspective of what has been heard and where these calls are headed. The TRC Call to Action No. 42 calls on all levels of government to “commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with the Treaty and Aboriginal rights of Aboriginal peoples, the Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples” (TRC, 2015a, p. 4). Indigenous-
led systems have long been called for (RCAP, 1996); thus, what would happen if this call was realized? How would an Indigenous-led justice system effect the health and well-being of Indigenous people? The current state of Canada’s criminal legal system is far from recognizing and implementing Aboriginal justice systems; however, advice and direction from Indigenous people experiencing imprisonment may facilitate the recognition and implementation of these very things. What if Thorne’s (as cited in Prisoners’ Legal Services [2023]) advice, as stated above, to consult with Elders to facilitate systemic change was followed? Why aren’t Indigenous knowledge systems, or Indigenous
people who are experiencing or have experienced incarceration, leading efforts to eliminate overincarceration of their people? What would be the impact on health?
The similarities between the philosophy and operations of the Indian Residential Schools (IRS) and the current prison environment also raise considerations. IRS were developed for the purpose of cultural assimilation of Indigenous people into whitesettler society; their primary objective was to strip away the cultural identity of Indigenous people by institutionalizing their children. Many accounts from Indigenous people in prison
How would an Indigenous-led justice system effect the health and well-being of Indigenous people? The current state of Canada’s criminal legal system is far from recognizing and implementing Aboriginal justice systems; however, advice and direction from Indigenous people experiencing imprisonment may facilitate the recognition and implementation of these very things.
express parallel experiences and propose similar objectives within the carceral system. These similarities are found in the Prisoners’ Legal Services (2023) investigation of Indigenous persons’ experiences in prison, as one Métis person shared:
In prison they’re still “teaching the Indian out” of people. It seems like everywhere that you try and get the Indigenous experience – the traditions, the programming – in every case, it’s been restricted. So, your only choice is to go the colonial way. Take a non-Indigenous program, talk to the Chaplain instead of the Elder, go to church instead of sharing
circles. Every time you try and do something spiritually or through your traditional ways, it’s almost impossible. (p. 105)
Since the release of the TRC, there has been a steady momentum amongst institutions, organizations, and governments to respond to the Calls to Action and work toward reconciliation. These actions beget the question, what if the same momentum was applied to current injustices within the criminal legal system for Indigenous people? What would reconciliation look like in this context? Would it encompass the revitalization of Indigenous legal systems?
Nevertheless, as this report shares the promising attributes of decarceration initiatives and alternatives to incarceration for Indigenous people, these approaches are only the beginning. Systemic change to support Indigenous-led justice systems is required. The direction for this initiative must emanate from distinct First Nations, Inuit, and Métis communities and be led by their communitybased structures, laws, and legal principles (TRC, 2015b). Importantly, these systems must be supported in ways that will provide separation from the destructive coloniality and historical roots of current criminal legal systems.
57 Barred: Over-incarceration of Indigenous people in Canada’s criminal legal system, the health implications, and opportunities for decarceration
REFERENCES
Abele, F., Alexiuk, E., Herb George, S., & MacQuarrie, C. (2021). Completing Confederation: The necessary foundation. In K. Graham & D. Newhouse (Eds.), Sharing the land, sharing a future: The legacy of the Royal Commission on Aboriginal Peoples (pp. 19-49). University of Manitoba Press.
Alberta Crown Prosecution Service. (2014). Alternative Measures Program. Government of Alberta. https:// open.alberta.ca/dataset/8fa0bd3b-2bbe-400d-85d23ba8101d83e2/resource/c6c1a088-ef47-4812-ac7838cef0c62556/download/jsg-cps-alternative-measuresprogram-2020.pdf
Anderson, M. D., Audette, M., Boyer, Y., Jaffer, M., MivilleDechêne, J., & Pate, K. (2021). Statement: Indigenous women make up 50% of women in prison; Bill C-5 & Canada’s mandatory minimum penalty mess will make matters worse. Senate of Canada. https://sencanada.ca/media/368730/newsrelease_oci_dec-17-2021_updated.pdf
Anderson, M. D., Boyer, Y., & Pate, K. (2022). Injustices and miscarriages of justice experienced by 12 Indigenous women: A case for group conviction review and exoneration by the Department of Justice via the Law Commission of Canada and/ or the Miscarriages of Justice Commission. Senate of Canada. https://sencanada.ca/media/joph5la2/en_report_injusticesand-miscarriages-of-justice-experienced-by-12-indigenouswomen_may-16-2022.pdf
Balfour, G., Hannah-Moffat, K., & Turnbull, S. (2018). Planning for precarity? Experiencing the carceral continuum of imprisonment and reentry. Studies in Law, Politics and Society, 77, 31-48.
Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, 1st Session, 44th Parliament, 2022. (Canada).
Boyer, Y. (2019). Prison reform: The mental-health crisis in our prison system has to be addressed in society at large – with compassion, care and culturally astute initiatives. Senate of Canada. https://senatorboyer.ca/priorities/prison-reform/
British Columbia Attorney General. (2022, September 21). B.C.’s eighth Indigenous court marks one year of service [News release]. Government of British Columbia. https://news.gov. bc.ca/releases/2022AG0124-001418
British Columbia Prosecution Service. (2023). Crown Counsel policy manual: Alternatives to prosecutions – adults. Government of British Columbia. https://www2.gov. bc.ca/assets/gov/law-crime-and-justice/criminal-justice/ prosecution-service/crown-counsel-policy-manual/alt-1.pdf
Caldwell, A. (2019). Two Spirit Indigenous offenders in the Correctional Service of Canada: Cultural reclamation and the need for a healing approach to policies and programs. [Doctoral dissertation]. University of the Fraser Valley, Abbotsford, BC, Canada. https://themicahmission.org/wp-content/ uploads/2020/08/Caldwell_Andrew-2019-TwoSpiritIndigen ousOffendersCanada.pdf
Canada Health Act, RSC 1984. C. C-6. (Canada)
Canadian Public Health Association. (n.d.). What is public health? https://www.cpha.ca/what-public-health
Carpenter, P. (2023). A look at Kahnawake’s justice system. Global News, January 9. https://globalnews.ca/ news/9397803/kahnawake-justice-system/
Chartrand, L., & McKay, C. (2006). A review of research on criminal victimization and First Nations, Métis and Inuit Peoples 1990 to 2001. Department of Justice Canada. https:// www.justice.gc.ca/eng/rp-pr/aj-ja/rr06_vic1/index.html
Clairmont, D. (2013). The development of an Aboriginal criminal justice system: The case of Elsipogtog. Atlantic Institute of Criminology. https://dalspace.library.dal.ca/ handle/10222/64596
Clairmont, D., & Linden, R. (1998). Developing & evaluating justice projects in Aboriginal communities: A review of the literature. Solicitor General Canada: Aboriginal Corrections Policy Unit. https://publications.gc.ca/collections/ collection_2016/jus/JS5-1-16-1998-eng.pdf
Clark, S. (2016). Evaluation of the Gladue Court Old City Hall, Toronto. Aboriginal Legal Services: Scott Clark Consulting Inc. https://www.cerp.gouv.qc.ca/fileadmin/Fichiers_clients/ Documents_deposes_a_la_Commission/P-382.pdf
Correctional Service Canada (CSC). (2013). Demographic overview of Aboriginal peoples in Canada and Aboriginal offenders in federal corrections. Government of Canada. https://www.csc-scc.gc.ca/aboriginal/002003-1008-eng.shtml
Correctional Service Canada (CSC). (2020). Commissioner’s Directive 768 Institutional Mother-Child Program. Government of Canada. https://www.csc-scc.gc.ca/politiqueset-lois/768-cd-en.shtml#2
Correctional Service Canada (CSC). (2023, March 27). The Correctional Service of Canada announces Deputy Commissioner for Indigenous Corrections (News release). https://www.canada. ca/en/correctional-service/news/2023/03/the-correctionalservice-of-canada-announces-deputy-commissioner-forindigenous-corrections.html
Corrections and Conditional Release Act, S.C., 1992, c. 20. (Canada)
Courts of Saskatchewan. (n.d.). Cree Court. https:// sasklawcourts.ca/provincial-court/cree-court/
Couturier, D. (2020). Judicial reasoning across legal orders: Lessons from Nunavut. Queen’s Law Journal, 45(2), 1-21.
Criminal Code, R.S.C., 1985, c. C-46. (Canada)
Denis-Boileau, M-A. (2021). The Gladue analysis: Shedding light on appropriate procedures and sanctions. UBC Law Review, 54(3), 537-628.
Denis-Boileau, M-A., & Sylvestre, M-E. (2018). Ipeelee and the duty to resist. UBC Law Review, 51(2), 548-611.
Department of Justice. (2021). Understanding the overrepresentation of Indigenous peoples in the criminal justice system. Government of Canada. https://www.justice.gc.ca/ socjs-esjp/en/ind-aut/uo-cs
Diez Roux, A. V. (2016). On the distinction—or lack of distinction—Between population health and public health. American Journal of Public Health, 106(4), 619-620.
Eneas, B. (2017). PAGC healing lodge: 20 years later. Prince Albert Now, June 14. https://panow.com/2017/06/14/pagchealing-lodge-20-years-later/
First Nations & Indigenous Studies, University of British Columbia (UBC). (2009). Sixties scoop. Indigenous Foundations. https://indigenousfoundations.arts.ubc.ca/ sixties_scoop/
Friedland, H. (2016). Navigating through narratives of despair: Making space for the Cree reasonable person in the Canadian justice system. University of New Brunswick Law Journal, 67, 270-312.
Giannetta, R. (2021). Canadian justice/Indigenous (in)justice: Examining decolonization and the Canadian criminal justice system. Journal for Social Thought, 5(1), 1-11.
Giffin, L., Berardi, L., Bucerius, S. M., & Haggerty, K. (2023). Sticking points: Incarcerated women's views on barriers to a prison needle exchange program. Incarceration, 4, 1-21.
Gordon, F., Klose, H., & Storrod, M. L. (2021). Youth (in)justice and the COVID-19 pandemic: Rethinking incarceration through a public health lens. Current Issues in Criminal Justice, 33(1), 27-46.
Government of Canada. (2011). Fact Sheet - The Teslin Tlingit Council Peacemaker Court. https://www.rcaanc-cirnac.gc.ca/ eng/1314319377339/1542826109844
Government of Canada. (2018). Search the Directory of Restorative Justice. Department of Justice. https://www.justice. gc.ca/eng/cj-jp/rj-jr/sch-rch.aspx
Government of Canada. (2021a). Family Violence Initiative: Compendium of promising practices to reduce violence and increase safety of Aboriginal women in Canada –Compendium annex: Detailed practice descriptions. https:// www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/annex-annexe/p132. html
Government of Canada. (2021b). Indigenous Justice Program. https://www.justice.gc.ca/eng/fund-fina/acf-fca/ajs-sja/index. html
Government of Newfoundland and Labrador. (2019). New program offers alternative measures to court process. Department of Justice and Public Safety. https://www.gov.nl.ca/ releases/2019/jps/0311n03/
Government of Northwest Territories. (2022). Wellness court program manual: “A journey toward change”. Department of Justice: Court Services Division.
Government of Nunavut. (2022). Business plan: Government of Nunavut & Territorial Corporations 2022-2026. Legislative Sitting May/June 2022. https://gov.nu.ca/sites/default/files/ gn_business_plan_2022-2026_-_cow_may_2022.pdf
Government of Saskatchewan. (n.d.). Alternative measures and extrajudicial sanctions. Ministry of Justice. https://www. saskatchewan.ca/residents/justice-crime-and-the-law/courtsand-sentencing/alternatives-to-going-to-court/alternativemeasures-extrajudicial-sanctions-programs
Gutierrez, L., & Chadwick, N. (2020). Are conditional sentence orders used differently for Indigenous offenders? A comparison of sentences and outcomes in Canada. Canadian Journal of Criminology and Criminal Justice, 62(4), 1-29.
Halseth, R., & Murdock, L. (2020). Supporting Indigenous selfdetermination in health: Lessons learned from a review of best practices in health governance in Canada and Internationally National Collaborating Centre for Indigenous Health.
Hanby, L., Ridha, T., Sullivan, R., & MacDonald, S. F. (2022). Indigenous healing lodges: Impacts on offender reintegration and community outcomes. Correctional Service of Canada. https:// publications.gc.ca/collections/collection_2022/scc-csc/PS84181-2021-eng.pdf
Harney, B. L., Korchinski, M., Young, P., Scow, M., Jack, K., Linsley, P., Bodkin, C., Brothers, T. D., Curtis, M., Higgs, P., Mead, T. S., Hart, A., Kilroy, D., Bonn, M., & Bartlett, S. R. (2022). It is time for us all to embrace person-centred language for people in prison and people who were formerly in prison. International Journal of Drug Policy, 99, 1-6.
Iftene, A. (2019). Incarceration in Canada: Risks to and opportunities for public health. In T. M. Bailey, C. T. Sheldon, & J. J. Shelley (Eds.), Public health law and policy in Canada (pp. 477-534). LexisNexis Canada Inc.
Indian Act, RSC 1985. c. 1-5. (Canada)
Inglis v. British Columbia (Minister of Public Safety), [2013] BCSC 2309. (British Columbia).
Kouyoumdjian, F. G., Cheng, S. Y., Fung, K., Orkin, A. M., McIsaac, K. E., Kendall, C., Kiefer, L., Matheson, F. I., Green, S. E., & Hwang, S. W. (2018). The health care utilization of people in prison and after prison release: A population-based cohort study in Ontario, Canada. PLOS One, 13(8), e2021592.
Liard First Nation. (n.d.). Justice: The Dena Keh Justice (Our People’s Way) program. https://liardfirstnation.ca/justice/
Lynn, A. (1997). I’ll Never Forget When…. Okimaw Ochi Newsletter, 1(1), p. 2.
Malta, M., Varatharajan, T., Russell, C., Pang, M., Bonato, S., & Fischer, B. (2019). Opioid-related treatment, interventions, and outcomes among incarcerated persons: A systematic review. PLOS Medicine, 16(12).
Manitoba Department of Justice. (2015). Policy directive: Restorative justice and diversion. Government of Manitoba. https://www.gov.mb.ca/justice/crown/prosecutions/pubs/ restorative_justice_and_diversion.pdf
Manitoba Métis Federation. (n.d.). Métis Community Justice Program. Métis Justice Institute. https://www.mmf.mb.ca/ metis-justice-institute
McGuire, M. M., & Murdoch, D. J. (2022). (In)-justice: An exploration of the dehumanization, victimization, criminalization, and over-incarceration of Indigenous women in Canada. Punishment & Society, 24(4), 529-550.
McKay, C., & Milward, D. (2018). Onashowewin and the promise of Aboriginal diversionary programs. Manitoba Law Journal, 41(3), 127-161.
McLeod, K. E. (2021). The impact of prison health policy: A multimethod study of the context and outcomes of the transfer of healthcare services in British Columbia’s provincial correctional facilities to the Ministry of Health. [Doctoral dissertation]. University of British Columbia, Vancouver, British Columbia, Canada.
McLeod, K, E., & Martin, R. E. (2018). Health in correctional facilities is health in our communities. Canadian Medical Association Journal, 12(190), 274-5.
Michel, M. (2023). Indigenous self-government and criminal law: The path towards concurrent jurisdiction in Canada. Dalhousie Law Journal, 46(2), 1-33.
Millar, H., & Dandurand, Y. (2018). The best interests of the child and the sentencing of offenders with parental responsibilities. Criminal Law Forum, 29, 227-277.
Mohawk Council of Akwesasne’s Adult Diversion Program. (n.d.). EJM/EJS/Adult Diversion Program. http://www. akwesasne.ca/justice/acjp/ejm-ejs-adult-diversion-program/
Mohawk Council of Kahnawá:ke. (n.d.). Court of Kahnawá:ke. http://www.kahnawake.com/org/court/
Murdocca, C. (2020). Re-imagining “serving time” in Indigenous communities. Canadian Journal of Women and the Law, 32(1), 31-60.
National Collaborating Centre for Indigenous Health (NCCIH). (2017). Indigenous children and the child welfare system in Canada. https://www.nccih.ca/docs/health/FSChildWelfareCanada-EN.pdf
National Inquiry into Missing and Murdered Indigenous Women and Girls (NIMMIWG). (2019a). Chapter 8: Confronting oppression – Right to justice. In Reclaiming power and place: The final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls – Volume 1a (pp. 643). https://www.mmiwg-ffada.ca/wp-content/ uploads/2019/06/Final_Report_Vol_1a-1.pdf
National Inquiry into Missing and Murdered Indigenous Women and Girls (NIMMIWG). (2019b). Reclaiming power and place: Calls for Justice. https://www.mmiwg-ffada.ca/ final-report/
Native Women’s Association of Canada (NWAC). (2019). CSC healing lodges and Section 81 healing lodges: Policy backgrounder. https://nwac.ca/assets-knowledge-centre/ NWAC_HealingLodges_v7_Interactive-1.pdf
New Brunswick Department of Justice and Public Safety. (2023). New Brunswick Adult Diversion Model. Government of New Brunswick. https://www2.gnb.ca/content/dam/gnb/ Departments/ps-sp/pdf/diversion-program/new-brunswickadult-diversion-model.pdf
New Brunswick Office of Attorney General. (2016). Policy – specialized provincial courts. Public prosecutions operational manual. https://www2.gnb. ca/content/dam/gnb/Departments/ag-pg/PDF/ en/PublicProsecutionOperationalManual/Policies/ SpecializedProvincialCourts.pdf
Newfoundland and Labrador Department of Justice and Public Safety. (2022). Guide book of policies and procedures for the conduct of criminal prosecutions in Newfoundland and Labrador. Government of Newfoundland and Labrador. https://www.gov.nl.ca/jps/files/public-prosecutions-guidebook.pdf
Northcott, P. (2022). Building a better path to restorative justice in Manitoba. Royal Canadian Mounted Police. https://www. rcmp-grc.gc.ca/en/gazette/building-a-better-path-restorativejustice-manitoba&fe
Nova Scotia Department of Justice. (2019). Nova Scotia Restorative Justice Program: Protocols. Government of Nova Scotia. https://novascotia.ca/restorative-justice-protocols/ docs/Restorative-Justice-Program-Protocols.pdf
Nova Scotia Prosecution Service. (2018). Fair treatment of Indigenous Peoples in criminal prosecutions in Nova Scotia Government of Nova Scotia. https://novascotia.ca/pps/ publications/ca_manual/AdministrativePolicies/FairTreatment-of-Indigenous-Peoples.pdf
Nunavut Courts. (n.d.). Nunavut Court of Justice. http://www. nunavutcourts.ca/index.php/nunavut-court-of-justice
Nunavut Department of Justice. (2019). Therapeutic justice pilot launch celebration. Government of Nunavut. https:// www.gov.nu.ca/justice/news/therapeutic-justice-pilot-launchcelebration
Office of the Auditor General of Canada. (2022). Reports of the Auditor General of Canada to the Parliament of Canada: Systemic barriers—Correctional Service Canada. Report 4. Government of Canada. https://www.oag-bvg.gc.ca/internet/ docs/parl_oag_202205_04_e.pdf
Onashowewin. (n.d.-a). About us. https://onashowewin.com/ about-us
Ontario Ministry of the Attorney General. (2017). Prosecution Directive No. 4: Community justice programs for adults. Government of Ontario. https://www.ontario.ca/document/ crown-prosecution-manual/d-4-community-justiceprograms-for-adults
Ontario Ministry of the Attorney General. (2019). Prosecution Directive No. 20: Indigenous Peoples. Government of Ontario. https://www.ontario.ca/document/crown-prosecutionmanual/d-20-indigenous-peoples
Park, G. (2021). Colonialism and the failure of retribution in the Canadian justice system: How to support Indigenous offenders. Revue YOUR Review (York Online Undergraduate Research), 8, 71-84.
Pate, K. (2016). Over-representation of Indigenous women in Canadian prisons, inquiry – debate adjourned. Senate of Canada. https://sencanada.ca/en/speeches/speech-by-senatorkim-pate-on-the-over-representation-of-indigenous-womenin-canadian-prisons/
Pate, K. (2022). Debates of the Senate (Hansard). 1st Session, 44th Parliament, Thursday, November 17, 2022. Senate of Canada. https://sencanada.ca/content/sen/chamber/441/ debates/pdf/081db_2022-11-17-e.pdf
Paynter, M., Heggie, C., Matheson, L., Rillie, C., Beals, D., & Bray, M. (2021). Maternal incarceration in a provincial prison in Canada: A qualitative study. Journal of Advanced Nursing, 78(7), 2123-2138.
Peterson, H. J. (2019). Applying Gladue principles requires meaningful incorporation of Indigenous laws and perspectives, including consideration of community-based alternatives to incarceration. [Master’s Thesis]. University of Saskatchewan, Saskatoon, Saskatchewan, Canada.
Prevost, H., & Kilty, J. M. (2020). “You start to feel like you're losing your mind”: An intersectionality-based policy analysis of federal correctional segregation policy and practice. Canadian Journal of Women and the Law, 32(1), 162-195.
Prince Albert Grand Council (PAGC). (n.d.). Spiritual Healing Lodge. https://www.pagc.sk.ca/spiritual-healing-lodge/
Prince Edward Island Crown Attorneys’ Office. (2009). Guide book of policies and procedures for the conduct of criminal prosecutions in Prince Edward Island. Prince Edward Island Justice and Public Safety. https://www.princeedwardisland.ca/ sites/default/files/publications/guide_book_of_policies_and_ procedures_for_the_conduct_of_criminal_prosecutions.pdf
Prisoners’ Legal Services. (2023). Decarceration through selfdetermination: Ending the mass incarceration of Indigenous people in Canada. West Coast Prison Justice Society. https://prisonjustice.org/wp-content/uploads/2023/04/ Decarceration-through-Self-determination-w.pdf
Provincial Court of Alberta. (n.d.-a). Calgary Indigenous Court. https://albertacourts.ca/pc/areas-of-law/criminal/specialcourts/CIC
Provincial Court of Alberta. (n.d.-b). Indigenous courts in Indigenous communities. https://albertacourts.ca/pc/areas-oflaw/criminal/special-courts/ICIC
Provincial Court of British Columbia. (n.d.). Specialized courts: Indigenous courts. https://www.provincialcourt.bc.ca/aboutthe-court/specialized-courts#IndigenousCourts
Public Prosecution Service of Canada. (2014). Public Prosecution Service of Canada deskbook. Government of Canada. https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fpssfp/tpd/d-g-eng.pdf
Public Safety Canada. (2021). Healing to wellness court. Government of Canada. https://www.publicsafety.gc.ca/cnt/ cntrng-crm/crm-prvntn/nvntr/dtls-en.aspx?i=10169
Public Safety Canada. (2023). 2021 Annual report: Corrections and conditional release statistical overview. Government of Canada. https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ ccrso-2021/ccrso-2021-en.pdf
Purvis, M. (2013). Paternal incarceration and parenting programs in prison: A review paper. Psychiatry, psychology, and law, 20(1), 9-28.
Quebec Director of Criminal and Penal Prosecutions. (2022). Non-judicial treatment for certain criminal offenses committed by adults. Government of Quebec.
Quebec Ministry of Justice. (2015). Alternative Measures Program for adults in Aboriginal communities. Government of Quebec. https://www.justice.gouv.qc.ca/fileadmin/ user_upload/contenu/documents/En__Anglais_/centredoc/ publications/programmes-services/PMR_milieu_autochtone_ ang.pdf
R. v. Campbell, [2013] MBPC 19. (Manitoba)
R. v. Gladue, [1999] SCR 688. (Canada).
R v Itturiligaq, [2018] NUCJ 31. (Nunavut).
R. v. Proulx, [2000] SCC 4. (Canada).
Roach, K., & Rudin, J. (2000). Gladue: The judicial and political reception of a promising decision. Canadian Journal of Criminology, 42(3), 355-388
Royal Commission on Aboriginal Peoples (RCAP). (1996). Looking forward, looking back. Report of the Royal Commission on Aboriginal Peoples, Volume 1. Government of Canada. https://data2.archives.ca/e/e448/e011188230-01.pdf
Rudin, J. (2008). Aboriginal over-representation and R. v. Gladue: Where we were, where we are and where we might be going. The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference, 40(22), 687-713.
Ruigrok, A., & and Dzisiak, D. (2022). Gladue & Indigenous self-governing courts across the country. Canadian Bar Association. https://www.cba.org/CBAMediaLibrary/cba_na/ PDFs/TRC/AppendixB_GladueAcrossCountry.pdf
Salmon, A., & Thompson, J. (2012). Collaborative community-prison programs for incarcerated women in BC: Infant and mother health initiative. British Columbia Medical Journal, 54(10), 509-513.
Sander, G., Shirley-Beavan, S., & Stone, K. (2019). The global state of harm reduction in prisons. Journal of Correctional Health Care, 25(2), 105-12.
Sandulescu, A. (2021). Indigenous Peoples in the Canadian criminal justice system: Over-representation & systemic discrimination. York University Criminological Review, 3(1), 65-89.
Sapers, H. (2022). Structured Intervention Unit Implementation Advisory Panel. 2021/22 annual report. Public Safety Canada. https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2022-siuiap-nnlrpt/index-en.aspx
Saskatchewan Ministry of Justice. (2013). The Alterative Measures and Extrajudicial Sanctions policies. Government of Saskatchewan.
Shahid, M., & Turin, T. C. (2018). Conducting comprehensive environmental scan in health system & policy research: A process for assessing the subject matter landscape. Journal of Biomedical Analysis, 1(2), 71-80.
Singh, D., Prowse, S., & Anderson, M. (2019). Overincarceration of Indigenous people: A health crisis. Canadian Medical Association Journal, 191(18), 487-E488.
Skinner, S., Cote, G., & Khan, I. (2018). Hepatitis C virus infection in Saskatchewan First Nations communities: Challenges and innovations. Canada Communicable Disease Reports, 44(7/8), 173-8.
Statistics Canada. (2022). Canada at a glance, 2022: Women. Government of Canada. https://www150.statcan.gc.ca/n1/ pub/12-581-x/2022001/sec7-eng.htm
Statistics Canada. (2023). Adult custody admissions to correctional services by Indigenous identity, Table: 35-10-001601. Government of Canada. https://www150.statcan.gc.ca/ t1/tbl1/en/tv.action?pid=3510001601
Tétrault-Provencher, J. (Host). (2023, March 23). Indigenous Peoples and the criminal legal system - Jennifer David & Andrea Menard. (No. 81). [Audio podcast episode]. In The Every Lawyer. Simplecast. https://theeverylawyer.simplecast. com/episodes/indigenous-peoples-and-the-criminal-legalsystem-jennifer-david-andrea-menard
The Courts of Nova Scotia. (n.d.-a). Courthouse in Wagmatcook First Nation. https://www.courts.ns.ca/provincial_court/ WagmatcookCourt.htm
The Courts of Nova Scotia. (n.d.-b). Satellite Court in Eskasoni. https://www.courts.ns.ca/courthouse_locations/Sydney_ Courthouse.htm
Tran, N. T., Baggio, S., Dawson, A., O’Moore, E., Williams, B., Bedell, P., Simon, O., Scholten, W., Getaz, L., & Wolff, H. (2018). Words Matter: A call for humanizing and respectful language to describe people who experience incarceration. BMC International Health and Human Rights, 18(41), 1-6.
Truth and Reconciliation Commission of Canada (TRC). (2015a). Calls to action. http://trc.ca/assets/pdf/Calls_to_ Action_English2.pdf
Truth and Reconciliation Commission of Canada (TRC). (2015b). Chapter 2: Indigenous law: Truth, reconciliation, and access to justice. In Canada’s Residential Schools: Reconciliation, Vol. 6 (pp. 45-79). McGill-Queen’s University Press. https://ehprnh2mwo3.exactdn.com/wp-content/ uploads/2021/01/Volume_6_Reconciliation_English_Web. pdf
United Nations. (2007). United Nations Declaration on the Rights of Indigenous Peoples. https://www.un.org/ development/desa/indigenouspeoples/wp-content/uploads/ sites/19/2018/11/UNDRIP_E_web.pdf
van der Meulen, E., De Shalit, A., & Ka Hon Chu, S. (2018). A legacy of harm: Punitive drug policies and women’s carceral experiences in Canada. Women & Criminal Justice, 28(2), 81-99.
Vecchio, K. (2018). A call to action: Reconciliation with Indigenous women in the federal justice and correctional systems. Report of the Standing Committee on the Status of Women House of Commons: Government of Canada. https://www. ourcommons.ca/Content/Committee/421/FEWO/Reports/ RP9991306/feworp13/feworp13-e.pdf
Viens, J. (2019). Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: Listening, reconciliation and progress. Final report. Government of Quebec. https://www.cerp.gouv.qc.ca/fileadmin/Fichiers_ clients/Rapport/Final_report.pdf
Wally. (1988). From deep within. Tightwire, 22(4), p. 28.
Wesley, M. (2012). Marginalized: The Aboriginal Women's experience in Federal Corrections. Aboriginal Corrections Policy Unit: Public Safety Canada.
Wet’suwet’en First Nation. (n.d.). Wet’suwet’en unlocking Aboriginal justice. Human and Social Services Department. http://www.wetsuweten.com/departments/human-and-socialservices/wetsuweten-unlocking-aboriginal-justice/
White, P. (2022). Ontario’s first healing lodge for Indigenous inmates in peril because of cash crunch. The Globe and Mail, October 24 https://www.theglobeandmail.com/canada/ article-healing-lodge-for-indigenous-inmates-in-perilbecause-of-cash-crunch/
Yukon Community Wellness Court. (2009). Court process https://www.yukoncourts.ca/sites/default/files/documents/en/ cwc_legal_process.pdf
Zimonjic, P. (2022). Supreme Court upholds Harper-era rule denying conditional sentences for serious crimes. CBC News, Politics, November 3. https://www.cbc.ca/news/politics/ supreme-court-conditional-setencing-1.6640049
Zinger, I. (2022). Office of the Correctional Investigator: Annual report 2021-2022. Ministry of Public Safety: Government of Canada. https://www.oci-bec.gc.ca/cnt/rpt/pdf/annrpt/ annrpt20212022-eng.pdf
APPENDIX A
Key terms and definitions within the context of this report
Canadian criminal legal system
Comprises four key components: legislation, law enforcement, courts, and corrections. The title criminal legal system adopts pragmatic terminology and departs from the widely used title criminal justice system to acknowledge the absence of justice for Indigenous people within the current system (Tétrault-Provencher, 2023). The key focus area for this report is Correctional Service Canada (CSC) and provincial/territorial adult correctional facilities.
Community-based alternatives to incarceration
Alternatives to incarceration and prison-based sentences that exist outside CSC and provincial/ territorial adult correctional facilities. May be under the provision of First Nations, Inuit, Métis or communities.
Indigenous communities
Refers to communities broadly. Includes distinct groups of First Nations people, Inuit, and/or Métis people who reside within a particular geographical location and share common characteristics, attitudes, interests, or goals, including nations and/ or supportive networks in urban, rural, and remote/ northern areas of Canada.
Indigenous decarceration
Efforts to reduce and remove the number of Indigenous people subject to imprisonment in Canada’s criminal legal system. Includes Indigenous community-based alternatives to incarceration.
Legal actors
Judges, crown attorneys and counsels, defence lawyers, and any other representatives involved in the proceedings of the criminal legal system.
Population health
The study of the patterns and outcomes of the health of populations, influenced by societal, environmental, and health care system factors. Focuses on improving the health of whole populations and addressing health inequities among population groups (Diez Roux, 2016).
Public health
Actions to optimize the health and well-being of populations through individualized service provision, with a focus on disease, illness, and injury prevention, health protection, and health promotion (Canadian Public Health Association, n.d.; Diez Roux, 2016).
APPENDIX B
Population totals of federal corrections
Population totals of federal corrections, by type of sentence (in custody vs. community), sex, and Indigenous identity (data is sourced from Public Safety Canada [2023], Table C16).
