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Rethinking the “Crisis” of Indigenous Mass Imprisonment

  • Efrat Arbel (a1)

Abstract

In R v Gladue, the Supreme Court of Canada famously remarked that the incarceration of Indigenous people represents a “crisis.” Since Gladue’s release, the language of “crisis” has been used with frequency in Canadian legal discourse. In this article, I analyze how this language has shaped the broader legal understanding of Indigenous mass imprisonment. My focus is not on specific iterations or uses, but on the cumulative impact of the language of “crisis” over the last twenty years. I suggest that however well-meaning these representations may be, their cumulative impact is harmful. In the face of the relentless intensification of Indigenous mass imprisonment, the language of “crisis” has operated to subtly entrench the colonial structures it purports to disrupt. Urging a shift away from its use, I argue that the language of “crisis” is not only ill suited to address the problem, but is part of the problem.

Dans l’arrêt R. c. Gladue, la Cour suprême du Canada constate que l’incarcération des peuples autochtones représente une « crise ». Depuis la publication de l’arrêt Gladue, l’expression « crise » a été fréquemment utilisée dans le discours juridique canadien. Dans le présent article, j’analyse comment ce langage a façonné une compréhension juridique plus extensive de l’emprisonnement de masse des autochtones. Je ne me concentre pas sur des itérations ou des utilisations spécifiques, mais bien sur l’impact cumulatif du langage de « crise » au cours des vingt dernières années. Je suggère que, aussi bien intentionnées soient-elles, ces représentations ont un effet cumulatif néfaste. Face à l’intensification incessante de l’emprisonnement de masse des autochtones, le langage de « crise » a opéré un enracinement subtil des structures coloniales qu’il prétend entraver. Exhortant à l’abandon de son utilisation, j’affirme que le langage de « crise » est non seulement mal adapté pour répondre à ce problème, mais plus encore qu’il fait partie dudit problème.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Footnotes

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*

I am grateful to Patricia Barkaskas, Emma Cunliffe, Johnny Mack, Mo Pareles, Nimer Sultany, and the participants of the University of Toronto Critical Analysis of Law workshop for their invaluable insights and comments. Thank you also to the editors and anonymous reviewers of the Canadian Journal of Law and Society for their thoughtful comments on earlier drafts, and to Elora Bascello and Connor Bildfell for their excellent research assistance.

Footnotes

References

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1 R v Gladue, [1999] 1 SCR 688, at para 64.

2 R v Ipeelee, [2012] 1 SCR 433.

3 Gladue, supra, note 1, at para 64.

4 Christie, Gordon, “A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw, and Haida Nation,” Windsor Y.B. Access Justice 23, no. 1 (2005): 17.

5 For a discussion of the simultaneous assignment of responsibility and proliferation of irresponsibility see: Veitch, Scott, Law and Irresponsibility: On the Legitimation of Human Suffering (Routledge: Abingdon, 2007), discussed in more detail below.

6 But see, e.g.: Meghan R. Rao, Theorizing Mass Incarceration: Analysing Aboriginal over-representation in light of Section 718.2(e) of the Canadian Criminal Code (Master of Arts in Sociology, Queens University, 2017) [unpublished]; New Democratic Party, “NDP at the UN: Advocates Condemn Mass Incarceration of Indigenous Women in Canada” (15 March 2018). <https://www.ndp.ca/news/ndp-un-advocates-condemn-mass-incarceration-indigenous-women-canada>. When David Garland coined the term “mass imprisonment” to describe the high rates of imprisonment in the United States, he identified two of its essential defining characteristics. The first is “sheer numbers,” that is, a “size of prison population that is markedly above the historical and comparative norm for societies of this type.” The second is the systematic and targeted use of imprisonment to impact not individuals but entire groups of the population. For such groups, Garland explains, “imprisonment has become normalized. It has come to be a regular, predictable part of experience, rather than a rare and infrequent event.” See David Garland, Mass Imprisonment: Social Causes and Consequences (London: Sage, 2001), at 1–2. Indigenous people are not only incarcerated in extreme numbers, but have also long experienced imprisonment as inevitable in the Canadian state. For many, prison has become “the contemporary equivalent of what the Indian residential school represented for their parents.” See Jackson, Michael, “Locking Up Natives in Canada,” UBC Law Review 215 (198889): 23.

7 Nichols, Robert, “The Colonialism of Incarceration,” Radical Philosophy Review 17, no. 2 (2014): 435, at 441.

8 Ibid., at 444.

9 Building on Garland’s analysis as outlined in supra, note 6, I maintain that the unyielding rise in Indigenous incarceration, combined with the normalized, expected fact of incarceration renders that imprisonment “mass.” This formulation focuses more directly on the role of the state in producing incarceration.

10 In 1967, the Canadian Corrections Association presented the Indians and the Law report to the Department of Indian Affairs and Northern Development, providing statistical evidence that Indigenous people were grossly overrepresented in provincial and federal facilities—a situation it characterized as being “of serious magnitude.” Canadian Corrections Association, Canada: Department of Indian Affairs and Northern Development, Indians and the Law: A Survey Prepared for the Honourable Arthur Laing (Ottawa: Canadian Welfare Council, 1967). See also: Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa: Minister of Supply and Services Canada, 1987) (Chair: Judge J. R. Omer Archambault); David Daubney, Standing Committee on Justice and Solicitor General, Taking Responsibility: Report of the Standing Committee on Justice and Solicitor General on Its Review of Sentencing, Conditional Release and Related Aspects of Corrections (Ottawa: Queen’s Printer for Canada, 16–17 August 1988); David Daubney and Gordon Parry, “An overview of Bill C-41 (the Sentencing Reform Act),” as cited in Roberts, Julian V. and Cole, David P., eds., Making Sense of Sentencing (Toronto: University of Toronto Press, 1999) 31. It was after Gladue’s release, however, that the language of “crisis” meaningfully took hold.

11 Criminal Code, RSC 1985, c C-46, s. 718(2)(a).

12 Gladue, supra, note 1, at para 64 [emphasis added].

13 R v Williams, [1998] 1 SCR 1128, at para 58, “[t]here is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system.” Quoted in Gladue, supra, note 1, at para 61.

14 Gladue, supra, note 1, at paras 65 and 68.

15 Ibid., at paras 83–84.

16 Ibid., at para 66.

17 Ibid., at para 74.

18 Friedland, Hadley, “Navigating Through Narratives of Despair: Making space for the Cree reasonable person in the Canadian Justice System,” University of New Brunswick Law Journal 67 (2016): 269, at 289. See also: R v Wells 2000 SCC 10, [2000] 1 SCR 207, where the Supreme Court of Canada held that in cases involving serious crimes, the background circumstances of the offender and the principles of restorative justice are likely to be less applicable. Notably however, the Court also emphasized the need to consider community perspectives and conceptions of sentencing.

19 Gladue, supra, note 1, at para 74

20 Rudin, Jonathan, “Addressing Aboriginal Overrepresentation Post-Gladue: A realistic assessment of how social change occurs,” Criminal Law Quarterly 54, no. 4 (2009): 447.

21 Rudin, Jonathan, “Aboriginal Over-Representation and R. v. Gladue: Where we were, where we are and where we might be goingSupreme Court Law Review 40 (2008): 687.

22 Milward, David and Parkes, Debra, “Gladue: Beyond myth and towards implementation in Manitoba,” Manitoba Law Journal 35, no. 1 (2011): 84. For further critiques, see: Denis Boileau, Marie Andree and Sylvestre, Marie-Eve, “Ipeelee and the Duty to Resist,” UBC Law Review 51, no. 2 (2018): 548; Rudin, Jonathan, “There Must Be Some Kind of Way Out of Here: Aboriginal over-representation, Bill C-10, and the Charter of Rights ,Canadian Criminal Law Review 17 (2013): 349; Roach, Kent, “One Step Forward, Two Steps Back,” Criminal Law Quarterly 54, no. 4 (2009) 470; Pelletier, Renée, “The Nullification of Section 718.2(e): Aggravating Aboriginal Over-Representation in Canadian Prisons,” Osgoode Hall Law Journal 39, no. 2–3 (2001): 469.

23 Ipeelee, supra, note 2.

24 Ibid.

25 See, e.g., the Truth and Reconciliation Commission of Canada, which stated in its final report, that “Canada’s laws and associated legal principles fostered an atmosphere of secrecy and concealment. When children were abused in residential schools, the law, and the ways in which it was enforced (or not), became a shield behind which churches, governments, and individuals could hide to avoid the consequences of horrific truths.” Summary of the Final Report of the Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future (2005), at 202.

26 Ipeelee, supra, note 2, at para 60.

27 Ibid., at para 62, citing Rudin, supra note 20.

28 See, e.g., R v VB, 2018 QCCQ 3870 at para 64; R v Woodcock, 2017 ONCJ 3, at paras 4 and 56; R v Morrisseau, 2017 ONCJ 307, at para 56; Twins v Canada (AG), 2016 FC 537, at para 48; R v Willier, 2016 ABQB 241 at para 65; R v Eli, 2015 BCSC 926, at para 37; R v McCook, 2015 BCPC 1, at para 162; R v KE, 2015 ONCJ 68, at para 40; R v Joseph, 2013 BCPC 199, at para 35; R v Rose, 2013 NSPC 99, at para 42; R v Gouda, 2013 ABQB 121, at para 1; R v DVJS, 2013 MBPC 34, at para 40; R v FAB, 2012 BCPC 362, at para 21; R v Johnson, 2011 ONCJ 77, at para 62; R v Auger, 2000 ABQB 450, at para 60; R c Diamond, 2006 QCCQ 2252, at para 20; R c Pépabano, 2005 CanLII 48584, at para 19. These cases move the law in a direction contrary to that suggested by Mary Ellen Turpel-Lafond in “Sentencing within a Restorative Justice Paradigm: Procedural Implications of R v. Gladue,Criminal Law Quarterly 43 (1999–2000): 34.

29 See, e.g., R v Napope, 2019 SKPC 23, at para 49, stating “At the time of Gladue, the rate of incarceration of Aboriginal offenders is described as a ‘crisis’”; R v Louie, 2019 BCSC 368, citing Gladue at paras 22–23 of R v Harry, infra, note 34; R v McKay, 2019 MBPC 11, at para 60 stating “The Supreme Court’s decisions in Gladue and Ipeelee were a judicial response to the over-incarceration of Indigenous people and direction to sentencing judges to address the crisis.” See also R v Callihoo 2017 ABPC 40, at para 53; R v Branconnier, 2018 MBPC 50, at para 59.

30 R v Cook, [2014] OJ No 6372 (QL), at para 10: “R. v. Gladue … declared that the overrepresentation of aboriginal offenders in Canadian jails was a crisis in the Canadian criminal justice system, and called upon sentencing judges to address this crisis to the extent possible during the sentencing process”; R v Sinclair, 2014 MBPC 13, [2014] MJ No 95 (QL), at para 44, stating “In 1999 the Supreme Court of Canada in Gladue instructed sentencing judges on how to apply s. 718.2(e) which was enacted to remedy the crisis of over-representation of Aboriginal people in Canada’s prisons”; R v Campbell, 2013 MBPC 19, [2013] MJ No 104 (QL), at paras 59–60: “In 1999 the Supreme Court, in Gladue, instructed sentencing judges on how to apply section 718.2(e), which was enacted to remedy the crisis of over-representation of aboriginal people in Canada’s prisons. Unfortunately, judges did not fully embrace the direction and the problem actually worsened. In 2012 the Supreme Court re-affirmed its earlier decision in Ipeelee…”; R v Elliott, 2013 BCPC 270, [2013] BCJ No 2162 (QL), at para 30: “[Section 718.2(e) of the Criminal Code] was thoroughly considered by the Supreme Court of Canada in R. v. Gladue [1999] 1 S.C.R. 688. It was at that time that the Supreme Court of Canada said that there was a crisis in the Canadian criminal justice system exhibited by the statistics on the over-representation of aboriginal persons in our jails.”

31 R v RL, [2004] 2 CNLR 204 (Sup Ct J), at paras 19 and 23, stating further: “The Supreme Court labeled this reality as “a crisis in the Canadian criminal justice system”; R v Willier, 2016 ABQB 241 at para 65, citing Gladue as setting out a “direction to the judiciary.”

32 R v RJN, 2016 YKTC 55, at para 44. See also R v Sharma, 2019 ONSC 1141, at para 26, noting that mandatory minimum sentences “can contribute to exacerbating the current over-incarceration crisis for Indigenous people.”

33 R v Dusome, 2019 ONCJ 444, at para 41, stating “The Supreme Court of Canada has been very clear, there is an over-incarceration of indigenous offenders in our jails. This crisis must be addressed. To address it judges must take a restorative approach to sentencing and look to the indigenous community for help to achieve it.”

34 R v Sutherland-Cada, 2016 ONCJ 650, at para 45.

35 R v Harry, [2018] BCSC 2069, at paras 22–23.

36 R v Iserhoff, 2019 QCCQ 2339; R v LLB, 2013 SKPC 165, at para 41; R v Dicker (2013), 333 Nfld & PEIR 72.

37 R v George, 2012 ONCJ 756, [2012] OJ No 5910 (QL), at para 11: “In all instances, regardless of the crime, the court must endeavor to address what has been described as a crisis in the Canadian criminal justice system, which is the over-representation of aboriginal people not only in correctional facilities, but in the criminal justice system generally. These are the reasons section 718.2(e) was enacted, with Aboriginal people in a very clear way being set apart”; R v Ahenakew, 2001 SKCA 71, at para 22: “While having the protection of the public always in mind, we must take every opportunity to emphasize rehabilitation over any other principle of sentencing in an attempt to address this crisis in our system”; also cited in R v Ahenakew, 2007 SKPC 108, at para 10.

38 R v Kokopenace, 2013 ONCA 389, 115 OR (3d) 481, at para 141.

39 R v Elliott, 2013 BCPC 270, at para 32.

40 R v Bouchard, 2012 ONCJ 425, at para 7: “In many ways Ms. Bouchard is also a product of her community. To say that Long Lake 58 First Nation is in crisis would be an understatement. Many in this community, including members of Ms. Bouchard’s family, attended residential schools, and they and their offspring continue to suffer the consequences of that experience. Many individuals returned from their experience damaged, angry and resentful and were unable to provide the nurturing needed to raise their own children. As a result, children were raised in environments characterized by abuse, violence and neglect. Unfortunately, that cycle continues to this day.”

41 R v Killiktee, 2011 ONSC 5910. See, also, R v MJH, 2019 YKTC 11, at para 9, describing the living conditions of the accused.

42 R v Swanson, 2013 ONSC 3287, at para 27–28, citing a Globe and Mail editorial referencing the “crisis” of Indigenous incarceration and concluding that the “national incarceration rate approaches tragic levels.” See also R v Quannaaluk, 2018 QCCS 5179, at para 72, noting, in relation to a Gladue report submitted on behalf of the accused, that her “life is tragic. It is tragic because in a few decades the Inuit lived through and continue to live through a major crisis in the restructuring of their society.”

43 R v Cake, 2014 ONCJ 126.

44 R v Killiktee, supra, note 40, at para 15. See also para 13: “Nunavut’s inhabitants are experiencing profound social misery. There are inadequate systemic resources to deal with these escalating problems, including in the Nunavut Court of Justice system where its Chief Justice in 2010 warned of an “impending crisis.” Approximately 50% of social worker positions in Nunavut are reportedly vacant (p. 7). The crisis is upon us.”

45 R v Kokopenace, 2013 ONCA 389, 115 OR (3d) 481, at para 42, overturned on other grounds in R v Kokopenace, 2015 SCC 28, [2015] 2 SCR 398.

46 Ibid., at para 43.

47 United States of America v Leonard, 2012 ONCA 622.

48 Ibid., at para 1.

49 Ibid., at para 60.

50 See, e.g., R v Abram, 2019 ONSC 3383; R v Heathen, 2018 SKPC 29; R v Hope, 2016 ONCA 648, 133 OR (3d) 154; R v McCrady, 2016 ONSC 1591; R v Daybutch, 2015 ONCJ 302, 325 CCC (3d) 568; R v Cake, 2014 ONCJ 126; R v Kokopenace, 2013 ONCA 389; Law Society of Upper Canada v Robinson, 2013 ONLSAP 18.

51 R v Daybutch, 2015 ONCJ 302, 325 CCC (3d) 568.

52 Frontenac Ventures Corp. v Ardoch Algonquin First Nation, 2008 ONCA 534, leave to appeal to SCC refused [2008] SCCA No. 357.

53 Children’s Aid Society of Hamilton v KC, 2016 ONSC 2751.

54 R v Sim (2005), 78 OR (3d) 183, at paras 16–17, stating: “Describing the situation of disproportionate incarceration of aboriginal offenders at para 64 as ‘a crisis on the Canadian criminal justice system,’ the court in Gladue focused on the interpretation of s. 718.2(e) and the sentencing of aboriginal offenders, but suggested that the principles motivating its decision could have wider ramifications…. I do not think that the principles underlying Gladue should be limited to the sentencing process and I can see no reason to disregard the Gladue principles when assessing the criminal justice system’s treatment of NCR accused.”

55 R v ZP, 2010 ONCJ 31, at para 65.

56 Inglis v British Columbia (Minister of Public Safety), 2013 BCSC 2309.

57 R v Cake, 2014 ONCJ 126, [2014] OJ No 1258 (QL), at paras 46–51.

58 See also R v Kennedy, 2013 ONSC 6419, 118 OR (3d) 60, in which the Court references the same report by Frank Iacobucci but distinguishes its application.

59 Law Society of Upper Canada v Robinson, 2013 ONLSAP 18, [2013] 4 CNLR 129 at para 69. See also 2018 LSBC 33, a British Columbia Law Society disciplinary hearing decision that the hearing panel be reconstituted to include an Indigenous person.

60 R v Kokopenace, 2015 SCC 28, [2015] 2 SCR 398.

61 Ibid., at para 171.

62 Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519.

63 Ibid., at para 60.

64 Ibid., at para 204.

65 See, e.g., Paul Chartrand and Wendy Whitecloud, Commissioners Final Report of the Aboriginal Justice Implementation Commission (Winnipeg: Government of Manitoba, 2001). <http://www.ajic.mb.ca/reports/final_toc.html>; Aboriginal Justice Implementation Commission, Report of the Aboriginal Justice Inquiry of Manitoba (Government of Manitoba, 1999). <http://www.ajic.mb.ca/volume.html>

66 Office of the Correctional Investigator, Annual Report of the Office of the Correctional Investigator 2002–2003. <http://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20022003-eng.aspx>

67 Rudin, Jonathan, Aboriginal Peoples and the Criminal Justice System (Toronto: Ipperwash Inquiry, 2005).

68 Howard Sapers, Speaking Notes for 33rd Annual Report to Parliament (16 October 2006).

69 Mann, Michelle M., Good Intentions, Disappointing Results: A Progress report on federal aboriginal corrections, Report of the Office of the Correctional Officer (2009). <http://www.oci-bec.gc.ca/cnt/rpt/oth-aut/oth-aut20091113-eng.aspx>

70 Wesley, Mandy, Marginalized: The Aboriginal Women’s Experience in Federal Corrections (Ottawa: Public Safety Canada, 2012). <http://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/mrgnlzd/mrgnlzd-eng.pdf>

71 Ministry of the Attorney General, First Nations Representation on Ontario Juries, Report of the Independent Review Conducted by the Honourable Frank Iacobucci (February 2013). <https:// www.attorneygeneral.jus.gov.on.ca/english/about/pubs/iacobucci/First_Nations_Representation_Ontario_Juries.html>

72 Ibid.

73 Ibid.

74 Ibid.

75 Ontario Women’s Justice Network, “Over-Represented and Over-Classified: Crisis of Aboriginal Women in Prison” (June 2014). <http://owjn.org/owjn_2009/jasons-test-submenu-page/367>

76 Ibid. The report identified key problems with the Custody Rating Scale and its use in classifying Indigenous women in corrections.

77 The Final Report of the Truth and Reconciliation Commission is one such example, and it deploys the language of “crisis” at several points in its treatment of Indigenous imprisonment. See Final Report of the Truth and Reconciliation Commission of Canada, Volume 5: The Legacy. <http://www.trc.ca/assets/pdf/Volume_5_Legacy_English_Web.pdf>, at, e.g., 220, 221, 254. The TRC Final Report was produced and operates in a different manner than most of the representations I survey in the piece, in that it is neither depoliticized nor dehistoricized, and reflects the lived experience of Indigenous people. This does not immunize the Final Report from critique but, rather, clarifies that the specific critiques advanced here do not apply to the Report in the same measure.

78 The Globe and Mail, “Tory Crime Agenda Fueling ‘Crisis’ Of Aboriginal Women In Prison,” 27 September 2012.

79 CBC News, “New Report Describes Growing ‘Crisis’ For Aboriginal Women,” 27 September 2012.

80 The Toronto Star, “Ontario’s Justice System In A ‘Crisis’ For Aboriginals,” 26 February 2013.

81 Tanya Talaga, “Ontario’s Justice System in a ‘Crisis’ for Aboriginals: Frank Iacobucci Report,” Toronto Star, 26 February 2013 <https:// www.thestar.com/news/canada/2013/02/26/ontarios_justice_system_in_a_crisis_for_aboriginals_frank_iacobucci_report.html>. Despite being cited and adopted by several courts, as noted above, the use of the word “crisis” was not without incident. Soon after the report’s release, for example, then serving Attorney General John Gerretsen seemed to question Iacobucci’s use of the word “crisis.” As cited by the Toronto Star, Gerretsen stated: “That’s his terminology…. I’m not sure whether it’s a crisis or not. I’m not going to disagree with him. I’m going to study the report.”

82 Office of the Correctional Investigator, Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act (22 October 2012). <http://www.oci-bec.gc.ca/cnt/rpt/oth-aut/oth-aut20121022-eng.aspx>

83 Gloria Galloway, “Prison Watchdog Expected to Fault Ottawa for Failing Natives,” The Globe and Mail (7 March 2013) (citing Shawn Atleo, the National Chief of the Assembly of First Nations, referring to the report as recounting “a widely recognized crisis and tragedy in so many respects”); Toronto Star, “Prison Watchdog Calls Soaring Aboriginal Population in Jail a ‘Critical Situation,’” 7 March 2013 (stating: “Canadian prisons are filling with aboriginal peoples, warns a scathing new report that urges immediate action to defuse a growing social crisis”); CTV News, “Canada failing Aboriginal inmates, watchdog says,” 7 March 2013 (using the headline “Corrections System Crisis”).

84 CBC News, “Lack of Gladue report writers in northwest a ‘crisis,’” 20 November 2013.

85 Coletta, Amanda, “Canada’s indigenous population is overrepresented in federal prisons—and it’s only getting worse,” Washington Post , 1 July 2018.

86 See, e.g., Briggs, Jacqueline, “Shameful Anniversary Should Spur Action on Aboriginal Justice Crisis,” Toronto Star , 3 April 2016 <https://www.thestar.com/opinion/commentary/2016/04/03/shameful-anniversary-should-spur-action-on-aboriginal-justice-crisis.html>; Welch, Mary Agnes, “25 Years after the Aboriginal Justice Inquiry Began, Much of Its Promise Has Yet to Be Realized,” Winnipeg Free Press , 14 September 2013 <http://www.winnipegfreepress.com/local/slow-road-to-justice-223729431.html>; Kirkup, Kristy, “Feds Failing Aboriginal Inmates: Watchdog,” Brantford Expositor , 7 March 2013 <http://www.brantfordexpositor.ca/2013/03/07/feds-failing-aboriginal-inmates-watchdog>; Purdy, Britnae, “Disproportionate Number of Aboriginals in Canadian Jails Indicates Crisis,” First Peoples Worldwide, 11 April 2013 <http://firstpeoples.org/wp/disproportionate-number-of-aboriginals-in-canadian-jails-indicates-crisis/> <https://www.thestar.com/opinion/contributors/2018/07/03/little-being-done-about-the-staggering-number-of-indigenous-people-in-jail.html> Notably, a review of newspaper articles issued immediately after Gladue’s release suggests it takes time for the language of “crisis” to catch on. The most prominent headlines at the time were: “Top Court Appalled as Natives Fill Canada’s Jails” (The Globe and Mail, 24 April 1999 <http://fact.on.ca/newpaper/gm990424.htm>) and “Judges too quick to jail offenders, top court rules, urging special efforts for Aboriginals” [Toronto Star, 24 April 1999]. Notably as well, media outlets have also used the language of “crisis” in connection with other issues impacting Indigenous communities. See, e.g., discussion of soaring child welfare rates (Jorge Barrera, “Indigenous Child Welfare Rates Creating ‘Humanitarian Crisis’ in Canada, Says Federal Minister,” CBC News, 2 November 2017; Katie Hyslop, “How Canada Created a Crisis in Indigenous Child Welfare,” The Tyee, 9 May 2018); opioid use (CBC News, “Alberta Friendship Centres Get $400,000 to Fight Indigenous Opioid Crisis,” 30 August 2018); suicide rates (Marc-André Cossette, “‘We Matter a Lot’: Indigenous Youth Gather in Ottawa to Tackle Suicide Crisis,” CBC News, 2 January 2018); lack of housing (Courtney Dickson, “Concerns Mount over Federal Government’s Indigenous Housing Contest,” CBC News, 13 August 2018); lack of water supply (Jorge Barrera, “Ottawa’s Promise to Fix First Nations Water Crisis Still Falling Short: Report,” CBC News, 8 February 2018; John Millar and Bob Rae, “Money Alone Won’t Solve the Water Crisis in Indigenous Communities,” MacLean’s Magazine, 29 March 2018; Angus Reid, “Want common ground on First Nations Issues? Start by Fixing the Water Supply,” MacLean’s Magazine, 7 June 2018); or missing and murdered Indigenous women (Angela Bosse, “A Mile in Her Moccasins: Annual healing walk raises awareness on MMIWG,” CBC News, 19 October 2018).

87 Clark, Natalie, “Shock and Awe: Trauma as the New Colonial Frontier,” Journal of Humanities 5, no. 1 (2016): 1, at 3.

88 Chartrand, Vicky, “Unsettled Times: Indigenous incarceration and the links between colonialism and the penitentiary in Canada” Canadian Journal of Criminology and Criminal Justice 61, no. 3 (2019): 67, at 79.

89 Nichols, supra note 7, at 445 [emphasis in original].

90 Office of the Correctional Investigator, 2016–2017 Annual Report, at 48.

91 Ibid., at 58.

92 Office of the Correctional Investigator, Aboriginal Issues. <http://www.oci-bec.gc.ca/cnt/priorities-priorites/aboriginals-autochtones-eng.aspx>

93 Office of the Correctional Investigator, 2016–2017 Annual Report, p 42, 48–40. For a comprehensive analysis of the use of force in corrections, and of the impact on Indigenous prisoners, see Prisoners’ Legal Services, West Coast Prison Justice Society, Damage/Control: Use of Force and the Cycle of Violence and Trauma in BC’s Federal and Provincial Prisons (June 2019). <https://prisonjustice.org/wp-content/uploads/2019/06/use-of-force-report-online-1.pdf>

94 Ibid., at 58.

95 Ibid.

96 British Columbia Civil Liberties Association et al. v Canada, 2018 BCSC 62, at para 467.

97 Ibid., at para 470.

98 Ibid., at para 483. As the Court held: “There is a box to be ticked on a form and it is ticked. Meaningful results have not followed.”

99 Government of Canada, Annual Report of the Office of the Correctional Investigator (2012–2013), Section IV, p. 30.

100 Roberts, Julian V. and Reid, Andrew A., “Aboriginal Incarceration in Canada since 1978: Every picture tells the same story,” Canadian Journal of Criminology and Criminal Justice 59, no. 3 (2017): 313345, at 327–331.

101 Ibid., at 328.

102 Ibid., at 332.

103 Ibid., at 318.

104 Ibid.

105 Gladue, supra, note 1, para 64.

106 Anthony, G. Amsterdam and Gerome Bruner, Minding the Law (Cambridge: Harvard University Press, 2000), 1.

107 Oxford English Dictionary, 2nd ed., s.v. “crisis.”

108 Merriam-Webster, 10th ed., s.v. “crisis.”

109 Ibid.

110 Gladue, supra note 1, para 62.

111 See Delgamuukw v British Columbia, [1997] 3 SCR 1010, where Lamer, CJC, famously remarked that we are all “here to stay.” For a critical reflection on the Court’s use of this language, see Johnny Mack, “Hoquotist: Reorienting through storied practice,” in Storied Communities: Narratives of Contact and Arrival in Constituting Political Community, Hester Lessard, Rebecca Johnson, and Jeremy Webber ed. (Vancouver: UBC Press, 2011), 287.

112 Lawrence, Jessica C., “The EU In Crisis: Crisis Discourse as a Technique of Government,” Netherlands Yearbook of International Law 33 (2013): 187.

113 Ibid.

114 Ibid.

115 Hay, Colin, “Crisis and the Structural Transformation of the State: Interrogating the process of change,” British Journal of Politics and International Relations 1, no. 3 (1999): 318.

116 Ulrich Best, Risk, class, crisis, hazards and cosmopolitan solidarity/risk community—conceptual and methodological clarifications, 2013. FMSH-WP-2013-31. <https://halshs.archives-ouvertes.fr/halshs-00820297/document>

117 Chartrand, supra, note 86, at 79.

118 Nichols, supra note 7, at 437.

119 Ibid., at 448.

120 Central to every act of colonialism is its appropriation of Indigenous land and sovereignty, and in Nichols’s analysis, supra, note 7 mass imprisonment is no exception. As Patrick Wolfe states, “Territoriality is settler colonialism’s specific, irreducible element,” Patrick Wolfe, “Settler Colonialism and the Elimination of the Nature,” Journal of Genocide Research 8, no. 4: 387–409, at 388, cited in Nichols, at 451. See also Coulthard, Glen, “From Wards of the State to Subjects of Recognition? Marx, Indigenous Peoples, and the Politics of Dispossession in Denendeh,” in Theorizing Native Studies , ed. Simpson, A. and Smith, A. (Durham, NC: Duke University Press, 2014), cited in Nichols, at 450.

121 This approach has been criticized by many; see, e.g. Rudin supra, note 20 (2009), at 454. As Rudin queries, how would a system that had, “advertently or inadvertently, created a crisis, … resolve that crisis if nothing about how that system operated was going to change?”

122 See, e.g., Dillon, Jaskiran K., “Indigenous Girls and the Violence of Settler Colonial PolicingDecolonization: Indigeneity, Education & Society 4, no. 2 (2015): 1.

123 Veitch, supra, note 5.

124 Ibid., at 2.

125 Christie, supra, note 4, at 22.

126 Ibid., at 22.

127 Ibid., at 21.

128 Veitch, , supra, note 5, at 3.

129 Mack, supra, note 111.

130 Arendt, Hannah, “The Crisis in Education” in Between Past and Future: Eight Exercises in Political Thought (London: Penguin Books, 2006), at 170.

131 Ibid.

132 Ibid.

133 Ibid.

134 Simpson, Leanne Betasamosake, As We Have Always Done: Indigenous Freedom through Radical Resistance (Minneapolis: University of Minnesota Press, 2017).

135 Mack, supra, note 111.

136 Martineau, Jarrett and Ritskes, Eric, “Fugitive Indigeneity: Reclaiming the terrain of decolonial struggle through Indigenous artDecolonization: Indigeneity, Education & Society 3, no. 1 (2014): 1.

* I am grateful to Patricia Barkaskas, Emma Cunliffe, Johnny Mack, Mo Pareles, Nimer Sultany, and the participants of the University of Toronto Critical Analysis of Law workshop for their invaluable insights and comments. Thank you also to the editors and anonymous reviewers of the Canadian Journal of Law and Society for their thoughtful comments on earlier drafts, and to Elora Bascello and Connor Bildfell for their excellent research assistance.

Keywords

Rethinking the “Crisis” of Indigenous Mass Imprisonment

  • Efrat Arbel (a1)

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