Indigenous offenders need new path to justice

Indigenous peoples — and Indigenous men in particular — are incarcerated at a rate higher than any other group in Canada.

As Canada’s own Department of Justice reports from data last collected in 2024: “Indigenous adults make up roughly 4 per cent to 5 per cent of Canada’s general population, yet account for about 32 per cent to 33 per cent of federal custodial populations and a higher share in provincial and territorial facilities.”

According to Statistics Canada, during the 2023-24 year 2.6 per cent of all Indigenous adults in Canada were incarcerated (25,640 people) with that rate doubling for the total amount of Indigenous men (7.3 per cent).

And things are getting worse.

Over a five-year period, from 2019 to 2024, incarcerated Indigenous men went from eight times the Canadian average to nearly 10.

The reasons for these disproportionate rates of Indigenous incarceration are due to Canada’s historical practices and policies, trauma, racism and the legacies of addiction, conflict and poverty that have emerged as a result.

In other words, no criminal act comes without a history — with incarcerated Indigenous men most carrying the burden of many of this country’s most brutal acts while trying to navigate the institutions, communities and individuals they interact with.

I hope I’m not stating the obvious when I say that solving this problem of Indigenous over-incarceration won’t come from continuing to over-incarcerate.

In fact, if one looks at the long history of Canada’s treatment of Indigenous peoples, one understands how harmed people might harm others — and loved ones in particular.

Simply put, a different path of justice is needed for Indigenous peoples — and men in particular.

In a 5-4 decision on Friday morning, the Supreme Court of Canada determined that judges in the country must apply sentencing principles that build harmony between Indigenous offenders and Indigenous victims in cases of domestic violence.

Judges now must devise a restorative process that balances the systemic factors affecting Indigenous offenders (such as historical trauma, the impacts of Canadian colonization and the outcomes of these) while centralizing the need to protect Indigenous women and girls.

The Supreme Court was clear not to say this was a perfect solution nor an easy mathematical formula, but the onus will be on Canadian judges to examine the specific circumstances of the proven crime of an Indigenous offender alongside the needs of the victim proportionately — and not simply treat jail as a solution.

“Proportionality requires due attention to the circumstances of the offender and of the victim in light of relevant sentencing objectives,” Justice Michelle O’Bonsawin wrote on behalf of the majority decision. “The appropriate balancing will inevitably vary depending on the specific circumstances of the offence.”

It’s no coincidence that O’Bonsawin — the first Indigenous Supreme Court Justice in Canadian history — was the lead voice on the decision.

Let me explain why.

There are never excuses for assault — never mind domestic assault.

In the Indigenous world, however, there are explanations.

In my family, I’ve had relatives try to kill one another.

I’ve witnessed assaults between parents and children, husbands and wives, and experienced harm myself from a domestic relationship.

In each and every case, the old adage of “hurt people hurt people” holds true. My family’s been through the worst parts of this country — and also some of the best.

And, while I know the necessity of couples separating, protection orders, and even jail time for my relations, there is a time when our family returned together to visit, face one another and even share a meal.

This brings forth another truth in my family: “you can pick and choose your friends, but family is for life — whether one wants it to be or not.”

Rebuilding circles of relationships are the central core of what is called Indigenous restorative justice and is at the basis of ceremonies, stories and songs and treaty.

It’s also the basis of ideas slowly making their way into the Canadian justice system.

In 1999, the Supreme Court of Canada rendered a decision in a case called R. v. Gladue.

The decision ordered all judges in the Canadian criminal justice system to consider the unique systemic and historical factors affecting First Nations, Inuit and Métis peoples when making sentencing and bail decisions.

For almost three decades, guilty Indigenous offenders have been able to provide a “Gladue Report” articulating the historical factors that contributed to why a crime was committed and judges and lawyers can take this into account when delivering punishment.

Since this time, Indigenous incarceration has not reduced — but this is not due to the Gladue decision.

As the think-tank Yellowhead Institute discovered in a study called “Twenty-Five Years of Gladue,” a lack of consistent application across provinces, understanding of Indigenous history by court workers, and what they call “incremental sentencing adjustments” that fail to address “ongoing colonial policies, socio-economic marginalization, and inadequate support for Indigenous victims and families” are the reasons.

In other words, a divided people are not healed by further division, but by facilitating possibilities that they might one day come back together.

Like a family.

» Niigaan Sinclair is Anishinaabe from Peguis First Nation, a professor in the Department of Indigenous Studies at the University of Manitoba and a Winnipeg Free Press columnist.