Indigenous People and Criminal Justice
📜 Legal Framework
Q: What section of the Constitution gives federal jurisdiction over "Indians and lands reserved for Indians"?
A: Section 91(24), Constitution Act, 1867.
Q: What is the Indian Act (1876)?
A: A paternalistic and colonial law governing status Indians and their affairs.
Q: What was the significance of Daniels v. Canada (2016)?
A: Found that Métis and Inuit are covered under s.91(24), and thus under federal responsibility.
Q: What does Section 35 of the Constitution Act, 1982 affirm?
A: Recognition of existing Aboriginal and treaty rights.
Q: What obligation does the Crown have under Section 35?
A: A fiduciary duty to act in good faith and respect Indigenous rights.
🚨 Overrepresentation
Q: How much higher is the provincial incarceration rate for Indigenous people than for non-Indigenous people?
A: Approximately 9 times higher.
Q: What percentage of federally incarcerated women are Indigenous?
A: 50%.
Q: How much more likely are Indigenous women to be victimized by violent crime?
A: Three times more likely than non-Indigenous women.
⚖ Systemic Discrimination & Marginalization
Q: What is systemic discrimination?
A: When policies unintentionally have adverse impacts on certain groups due to how they interact with larger structures.
Q: What contributes to socio-economic marginality among Indigenous peoples?
A:
Lower income
Higher unemployment
Remote living conditions
Lower university education rates
🧭 Colonialism & Criminalization
Q: How does colonialism contribute to over-criminalization?
A: Through dispossession, residential schools, and cultural marginalization that leads to contact with the justice system.
🚔 Policing and Legal Context
Q: Who has constitutional authority over Indigenous policing?
A:
Federal (s.91(24)): jurisdiction over Indigenous peoples
Provincial (s.92(14)): jurisdiction over policing and justice
Q: Why is policing considered crucial in Indigenous justice?
A: It's an essential service connected to self-determination and public safety.
Q: What international declaration supports Indigenous control over policing?
A: UNDRIP, Article 4.
👮♂ RCMP & Colonial History
Q: Why is the RCMP criticized in Indigenous communities?
A:
Enforced the Indian Act
Participated in the Sixties Scoop
Involvement in Louis Riel's execution
Issued apologies in 2004 and 2014
🧑✈ First Nations Policing
Q: What is the First Nations Policing Policy (1991)?
A: A framework for professional, culturally appropriate policing, co-funded by federal and provincial governments.
Q: What challenges do First Nations police services face?
A:
Underfunding
Remote location challenges
Use of non-Indigenous officers
📍 Key Policing Case: Quebec (AG) v. Pekuakamiulnuatsh Takuhikan (2024 SCC 39)
Q: What did the SCC decide in Quebec v. Pekuakamiulnuatsh Takuhikan (2024)?
A: Quebec violated the honour of the Crown and contractual obligations through underfunding.
❄ Starlight Tours & Stonechild Inquiry
Q: What are Starlight Tours?
A: Practice of police dropping Indigenous people outside city limits in freezing conditions.
Q: What was the significance of Neil Stonechild’s case?
A: Exposed police misconduct and led to an inquiry revealing inadequate investigations.
⚖ Sentencing & Section 718.2(e)
Q: What does s.718.2(e) of the Criminal Code require?
A: Courts must consider all reasonable alternatives to imprisonment, especially for Indigenous offenders.
📚 R v. Gladue (1999)
Q: What principle was established in R v. Gladue?
A: Sentencing must consider:
Systemic factors unique to Indigenous people
Culturally appropriate sanctions
Q: Is s.718.2(e) meant to guarantee a lesser sentence?
A: No—it’s about contextual sentencing, not automatic leniency.
🔁 R v. Ipeelee (2012)
Q: What did R v. Ipeelee clarify about applying Gladue principles?
A: Courts must take judicial notice of colonial history and apply consistently, even in serious or violent cases.
Q: What were the two key errors corrected by Ipeelee?
A:
Requiring proof of direct link between background and crime
Inconsistency in applying Gladue for violent offences
🧑⚖ Gladue Courts
Q: What are Gladue Courts?
A: Special courts focused on applying Gladue principles, with caseworkers and culturally sensitive processes.
Q: What do Gladue Courts focus on?
A:
Pre-trial custody
Bail access
Identification of systemic background
Support resources
🌍 Beyond Sentencing Solutions
Q: Why is sentencing alone insufficient to address overrepresentation?
A: Broader systemic issues need attention—policing, bail, diversion, social inequality.
💔 MMIWG (Missing and Murdered Indigenous Women and Girls)
Q: What did the MMIWG report find about police investigations?
A: They were often flawed, under-resourced, and marked by indifference and bias.
Q: What are key MMIWG recommendations for criminal justice?
A:
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
🧱 Truth and Reconciliation Commission (TRC)
Q: What was the focus of the TRC?
A: The impact of residential schools and systemic injustices against Indigenous peoples.
Q: What TRC reforms have been successful?
A: Court decisions (e.g., mandatory minimum rulings) have been most responsive.