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Tom Rees | Criminal Defence Lawyer Winnipeg

Indigenous People Disproportionately Jailed in Canada


A new McLean’s article entitled Canada’s prisons are the ‘new residential schools’ is reporting that Canada’s prison system is full of indigenous people. The article found that 22.8% of inmates in Canada’s federal prisons are indigenous compared with only 4% of the population, and that the incarceration rate for indigenous women increased 112% over the last ten years. The article concludes the crime and punishment agenda of the previous Conservative Government is to blame for the increases.

The article talks about the situation in Manitoba:

In some Prairie courtrooms, Indigenous defendants now make up 85 per cent of criminal caseloads, defence lawyers say. At Manitoba’s Women’s Correctional Centre in Headingley, as many as nine in 10 women were Indigenous, according to one recent count. At nearby Stony Mountain Institution, Indigenous men make up 65 per cent of the inmate population. Often, they’re there because they failed to comply with a curfew or condition of bail. Or they’re a low-level drug offender, caught up in Canada’s harsh new mandatory-minimum sentences.

Our criminal justice system uses sentencing principles found in the Criminal Code of Canada and case law to determine an appropriate sentence. The starting point for the analysis is establishing if there is an applicable minimum sentence. After that, the Court will look at previous cases for a sentencing range for similar offences and similar offenders. The Judge must also use the principles found in section 718 of the Criminal Code:

 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

  • (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

  • (b) to deter the offender and other persons from committing offences;

  • (c) to separate offenders from society, where necessary;

  • (d) to assist in rehabilitating offenders;

  • (e) to provide reparations for harm done to victims or to the community; and

  • (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.


In 1996, the Federal Government introduced a section in the Criminal Code relating to the treatment of indigenous people:

 A court that imposes a sentence shall also take into consideration the following principles:

  • (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

The sentencing judge will also look at two important cases from the Supreme Court of Canada where the Court comments on the over-representation of indigenous people in custody in Canada called R. v. Gladue, and R. v. Ipeelee. The Gladue case interpreted section 718.2(e) and was meant to assist Courts when sentencing indigenous people with a goal of reducing their over-representation in jails. However, the problem only got worse over the next decade, causing the Supreme Court of Canada to revisit the issue in a new case called Ipeelee.

Over a decade has passed since this Court issued its judgment in Gladue. As the statistics indicate, s. 718.2(e) of the Criminal Code has not had a discernible impact on the overrepresentation of Aboriginal people in the criminal justice system. Granted, the Gladue principles were never expected to provide a panacea. There is some indication, however, from both the academic commentary and the jurisprudence, that the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s. 718.2(e) and this Court’s decision in Gladue.

(R. v. Ipeelee, 2012 SCC 13 – para 63)

A recent CBC article found that Manitoba jails nearly three times the national average per capita.

According to Statistics Canada, from the 1990s to the early ​20​00s, the inmate population in Manitoba grew modestly by 16 per cent, tracking roughly the population growth. However, from 2005 to 2014, that number exploded by 106 per cent, with an average daily inmate count last year of 2,370.

(Jacques Marcoux and Caroline Barghout, – Click here to read article)

My experience in the courtroom is consistent with the findings in both articles. Indigenous people, especially women, are often jailed when, in my view, there was an alternative to custody. There are so many very broad sentencing principles in the criminal justice system that the decision to jail any specific offender is the responsibility not only of the law makers of the day, but also the humans in the Court at the time of the sentencing.

The Crown has discretion to ask for custodial or community based dispositions. If the Prosecution continuously asks for offenders to go to prison, then more people will be in prison. If prosecutors were to reduce their reliance on custody, and agree more often to probation or fines for any cases where short custodial sentences were used in the past, fewer people would go to prison. The Prosecution Service could also drastically reduce the frequency they ask for custody for probation breaches. We send indigenous people to jail for missing meetings with probation, consuming alcohol, failing to report their new address and other minor breaches every day. Jailing for those types of crimes is expensive, not effective a reducing crime, and disproportionately affect poor people and indigenous people.

Judges decide what sentence a person ultimately receives. They could have a enormous impact on the number of indigenous people in jail for minor and non-violent crimes. A conscious move from using short shots of jail for lesser offences and breaches of probation would have an immediate effect on the incarceration rate in Manitoba. Judges have the power to cause immediate change.

Defence counsel can also impact on the number of indigenous people in custody. Defence counsel already raises issues affecting indigenous people like poverty, prejudice and impact of colonization. We argue that people should not be going to jail when there are reasonable alternatives. We try to remind the Crown and the Court that they should take extra care when sentencing an indigenous person to custody. However, defence counsel have room to improve. We have the opportunity to properly bring out the actual hardship our client’s have suffered. Defence lawyers are in the best situation to educate the Court and Crown about issues affecting our clients, as told to us directly.

What is clear is that everyone who participates in the justice system, including judges, prosecutors and defence lawyers, are, at least, partly responsible for Manitoba’s unenviable record on jailing indigenous people, and our abysmal incarceration rate compared to the rest of Canada. All of us in the courtroom need to take a look at ourselves because we are part of the problem and we can only make a difference if we change the way we are doing things.

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