Indigenous People and Criminal Justice

What section of the Constitution gives federal jurisdiction over 'Indians and lands reserved for Indians'?

Section 91(24), Constitution Act, 1867.

What is the Indian Act (1876)?

A paternalistic and colonial law governing status Indians and their affairs.

What was the significance of Daniels v. Canada (2016)?

Found that Métis and Inuit are covered under s.91(24), and thus under federal responsibility.

What does Section 35 of the Constitution Act, 1982 affirm?

Recognition of existing Aboriginal and treaty rights.

What obligation does the Crown have under Section 35?

A fiduciary duty to act in good faith and respect Indigenous rights.

How much higher is the provincial incarceration rate for Indigenous people than for non-Indigenous people?

Approximately 9 times higher.

What percentage of federally incarcerated women are Indigenous?

50%.

How much more likely are Indigenous women to be victimized by violent crime?

Three times more likely than non-Indigenous women.

What is systemic discrimination?

When policies unintentionally have adverse impacts on certain groups due to how they interact with larger structures.

What contributes to socio-economic marginality among Indigenous peoples?

Lower income, higher unemployment, remote living conditions, lower university education rates.

How does colonialism contribute to over-criminalization?

Through dispossession, residential schools, and cultural marginalization that leads to contact with the justice system.

Who has constitutional authority over Indigenous policing?

Federal (s.91(24)): jurisdiction over Indigenous peoples; Provincial (s.92(14)): jurisdiction over policing and justice.

Why is policing considered crucial in Indigenous justice?

It's an essential service connected to self-determination and public safety.

What international declaration supports Indigenous control over policing?

UNDRIP, Article 4.

Why is the RCMP criticized in Indigenous communities?

Enforced the Indian Act, participated in the Sixties Scoop, involvement in Louis Riel's execution, issued apologies in 2004 and 2014.

What is the First Nations Policing Policy (1991)?

A framework for professional, culturally appropriate policing, co-funded by federal and provincial governments.

What challenges do First Nations police services face?

Underfunding, remote location challenges, use of non-Indigenous officers.

What did the SCC decide in Quebec v. Pekuakamiulnuatsh Takuhikan (2024)?

Quebec violated the honour of the Crown and contractual obligations through underfunding.

What are Starlight Tours?

Practice of police dropping Indigenous people outside city limits in freezing conditions.

What was the significance of Neil Stonechild’s case?

Exposed police misconduct and led to an inquiry revealing inadequate investigations.

What does s.718.2(e) of the Criminal Code require?

Courts must consider all reasonable alternatives to imprisonment, especially for Indigenous offenders.

What principle was established in R v. Gladue?

Sentencing must consider systemic factors unique to Indigenous people and culturally appropriate sanctions.

Is s.718.2(e) meant to guarantee a lesser sentence?

No—it’s about contextual sentencing, not automatic leniency.

What did R v. Ipeelee clarify about applying Gladue principles?

Courts must take judicial notice of colonial history and apply consistently, even in serious or violent cases.

What were the two key errors corrected by Ipeelee?

Requiring proof of direct link between background and crime; inconsistency in applying Gladue for violent offences.

What are Gladue Courts?

Special courts focused on applying Gladue principles, with caseworkers and culturally sensitive processes.

What do Gladue Courts focus on?

Pre-trial custody, bail access, identification of systemic background, support resources.

Why is sentencing alone insufficient to address overrepresentation?

Broader systemic issues need attention—policing, bail, diversion, social inequality.

What did the MMIWG report find about police investigations?

They were often flawed, under-resourced, and marked by indifference and bias.

What are key MMIWG recommendations for criminal justice?

Replace First Nations Policing Program, Indigenous-led police oversight, expand Indigenous courts and restorative justice, recruit Indigenous judges and justices of the peace, ensure culturally relevant services.

What was the focus of the TRC?

The impact of residential schools and systemic injustices against Indigenous peoples.

What TRC reforms have been successful?

Court decisions (e.g., mandatory minimum rulings) have been most responsive.