Aboriginal Peoples and the Canadian Criminal System: Indigenous Imprisonment Fact Sheet
Photo source: The Canadian Aboriginal photo is from http://www.fvss.de/assets/media/jahresarbeiten/englisch/aboriginals.pdf and the Australian aboriginal photo is from https://nacchocommunique.com/2015/04/13/naccho-prison-health-news-prisons-are-a-poor-substitute-for-primary-and-mental-health-care/
Background and Context: Aboriginal Peoples and the Canadian Criminal System
Aboriginal overrepresentation in the criminal justice system is one of the clearest markers of what the Supreme Court of Canada has referred to as “a crisis in the Canadian justice system”
23% of Canada’s incarcerated population is Aboriginal even though they only account for 4% of Canada’s population
Aboriginal Canadians are 10 times more likely to be imprisoned than any other ethnic group in Canada
Women and youth are particularly vulnerable: Aboriginal women represent 33% of all women sent to jail and 21% percent of all Aboriginal offenders are 25 years or younger
Background and Context: Aboriginal Peoples and the Australian Criminal System
Similarly, the over-representation of Aboriginal and Torres Strait Islander people in the criminal justice system is a serious social problem in Australia
Indigenous Australians make up approximately 2.5% of Australia’s population yet account for 26% of the nation’s jail population
In 2012, the Australian Bureau of Statistics (ABS) reported that Aboriginal and Torres Strait Islander adults were 15 times more likely to be imprisoned than non-Indigenous adults
The rate of increase in Indigenous imprisonment is fastest growing among women and juveniles: Indigenous juveniles in Australia are 31 times more likely to be imprisoned than non-indigenous juveniles and the imprisonment rate for Indigenous females increased by 58.6% between 2000 and 2010
Indigenous Imprisonment Rate
Between 2000 and 2010, the indigenous imprisonment rate in Australia increased by 51.5%
Since 2005 and 2006, there has been a 43% increase in the Aboriginal inmate population in Canada
Aboriginal Canadian Specific Legislative Provisions
Section 81 of the 1992 Corrections and Conditional Release Act (CCRA) allows for the transfer of minimum and medium security Aboriginal inmates to community facilities and healing lodges
Section 84 of CCRA provides for the Aboriginal community’s involvement in release planning of an Aboriginal offender returning to their community
Section 718.2 (e) of the Criminal Code requires sentencing judges to pay “particular attention to the circumstances of Aboriginal offenders”
The 1999 decision of R v. Gladue laid out principles for this section and instructed judges to consider alternative sentencing options, Aboriginal offenders’ background and prepare a case-specific “Gladue case report”
Key Findings
Since 1992, only four Section 81 agreements have been concluded with Aboriginal communities
There are currently only 68 Section 81 beds available in four healing lodges across the country
CCRA does not apply in Ontario, British Columbia, Atlantic Canada and the Northern Territories
No new Section 81 facility has been added since 2001 despite a 40% increase in the number of Aboriginal incarceration
Inadequate and inconsistent application of Gladue considerations in sentence decision-making
Mandatory sentencing laws in the Northern Territory and Western Australia
Mandatory sentencing laws were enacted in Western Australia and the Northern Territory in 1996 and 1997 respectively, for juvenile and adult offenders and require that offenders automatically go to jail for minimum prescribed periods for particular offences
The Sentencing Act in the Northern Territory states that persons found guilty of certain property offences shall be subject to a mandatory minimum term of fourteen days of imprisonment for a first offence, ninety for a second property offence and one year for a third property offence
The Juvenile Justice Act provides that a person aged 15 to 18 who has been convicted for a certain property offence and has at least one prior conviction for such an offence, must be detained for at least twenty eight days
Case studies of the impact of these laws demonstrate their arbitrary and discriminatory nature and are not proportionate to the crimes that are committed
A 15 year old Aboriginal boy with prior conviction was detained for 28 eight days for stealing stationary items. He then later committed suicide
Two 17 year old Aboriginal girls with no previous criminal convictions were both sentenced to 14 days in prison for the theft of clothes
A 24 year old Indigenous mother was sentenced to 14 days in prison for receiving a stolen can of beer
A 29 year old homeless Indigenous man who, when drunk, stole a $15 dollar from a backyard. It was his third minor property offence and he was imprisoned for one year
An 18 year old Aboriginal man was sentenced to 90 days in prison for stealing only 90 cents from a motor vehicle
Australian mandatory sentencing laws have had a disproportionately negative effect on incarceration rates
In March 1997, the Senate Legal and Constitutional References Committee reported that “when the Northern Territory Government introduced mandatory sentencing, the number of Aboriginal people in Northern Territory corrective facilities increased from an average of 388 per month to 430 per month within a 12 month period.”
The committee also reported that the imprisonment rate for Aboriginal people in the Northern Territory was “almost 10 times as high as that for non-Aboriginal offenders, with a rate of about 1460 per 100,000 aduts jailed, compared with 169 per 100,000 of non-indigenous adults.”
Relevance to International Obligations
Australia’s mandatory sentencing laws violate Article 37 (b) of the Convention on the Rights of a Child (CORC) which states that the deprivation of liberty must not be arbitrary and should only be used as a measure of last resort
Australia’s mandatory detention provisions violate Article 9 (1) of the ICCPR which states that “no one shall be subject to arbitrary arrest or detention”
Furthermore, the ICCPR and Article 40 (2) (b) of the CORC requires that sentences should be reviewable by a higher or appellate court however a mandatory sentence cannot be reviewed.
References
[1] Jonathan Rudin, Aboriginal Peoples and the Criminal Justice System (2005) < http://www.archives.gov.on.ca/en/e_records/ipperwash/policy_part/research/pdf/Rudin.pdf>
[2] Britnae Purdy, Disproportionate Number of Aboriginals in Canadian Jails Indicate Crisis (2013) < http://firstpeoples.org/wp/disproportionate-number-of-aboriginals-in-canadian-jails-indicates-crisis/>
[3] Ibid.
[4] Ibid.
[5] Law Council of Australia, Indigenous Imprisonment Fact Sheet (2014) <https://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/Indigenous_Imprisonment_Fact_Sheet.pdf>
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Office of the Correctional Investigator, Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act (2013) < http://www.oci-bec.gc.ca/cnt/comm/presentations/presentations20121022-eng.aspx>
[11] Corrections and Conditional Release Act, SC 1992, c.20, s81.
[12] Office of the Correctional Investigator, Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act (2013) < http://www.oci-bec.gc.ca/cnt/comm/presentations/presentations20121022-eng.aspx>
[13] Corrections and Conditional Release Act, SC 1992, c.20, s84.
[14] Office of the Correctional Investigator, Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act (2013) < http://www.oci-bec.gc.ca/cnt/comm/presentations/presentations20121022-eng.aspx>
[15] Criminal Code, RSC 1985, c C-46, s718.2 (e).
[16] Jonathan Rudin, Aboriginal Peoples and the Criminal Justice System (2005) < http://www.archives.gov.on.ca/en/e_records/ipperwash/policy_part/research/pdf/Rudin.pdf>
[17] R v Gladue [1999] 1 SCR 688.
[18] The Native Women’s Association of Canada, What is Gladue? (2015) < http://www.nwac.ca/wp-content/uploads/2015/05/What-Is-Gladue.pdf>
[19] Office of the Correctional Investigator, Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act (2013) < http://www.oci-bec.gc.ca/cnt/comm/presentations/presentations20121022-eng.aspx>
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Australian Human Rights Commission, Mandatory Sentencing Laws in the Northern Territory and Western Australia, <https://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/submissions_un_hr_committee/5_mandatory_sentencing.pdf>
[25] Sentencing Act 1995 (NT).
[26] Larry N. Chartrand, ‘Aboriginal Peoples and Mandatory Sentencing’ (2001) 39 Osgoode Hall Law Journal 452.
[27] Juvenile Justice Act 1995 (NT).
[28] Larry N. Chartrand, ‘Aboriginal Peoples and Mandatory Sentencing’ (2001) 39 Osgoode Hall Law Journal 452.
[29] Australian Human Rights Commission, Mandatory Sentencing Laws in the Northern Territory and Western Australia, <https://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/submissions_un_hr_committee/5_mandatory_sentencing.pdf>.
[30] Larry N. Chartrand, ‘Aboriginal Peoples and Mandatory Sentencing’ (2001) 39 Osgoode Hall Law Journal 452.
[31] Australian Human Rights Commission, Mandatory Sentencing Laws in the Northern Territory and Western Australia, <https://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/submissions_un_hr_committee/5_mandatory_sentencing.pdf>.
[32] This example reflects 17 year olds who were treated as adults under the NT Criminal Justice System and prior to amendments of the Sentencing Act in June 2000, were subject to the adult mandatory detention
[33] Australian Human Rights Commission, Mandatory Sentencing Laws in the Northern Territory and Western Australia, <https://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/submissions_un_hr_committee/5_mandatory_sentencing.pdf>.
[34] Ibid.
[35] Ibid.
[36] Larry N. Chartrand, ‘Aboriginal Peoples and Mandatory Sentencing’ (2001) 39 Osgoode Hall Law Journal 453.
[37] Ibid, 454.
[38] Ibid.
[39] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into signature 2 September 1990) art 37 (b).
[40] International Covenant on Civil and Political Rights, GAOR xxi Supp. 16A/6316, art 9 (1).
[41] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into signature 2 September 1990) art 40 (2) (b).
