30. Eliminate the overrepresentation of Aboriginal people in custody over the next decade

We call upon the federal, provincial and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade, and to issue detailed annual reports that monitor and evaluate progress in doing so.

In January 2021, in a supplementary mandate letter, the federal minister of Justice was tasked with developing an Indigenous Justice Strategy to address systemic discrimination and the overrepresentation of Indigenous people in Canada’s justice system.

The federal government has committed funding for the creation of programs designed to reduce the overrepresentation of Indigenous people in custody, but some of those programs simply replaced prior programs with the same mandates and the same level of funding.

Furthermore, as of January 2020, the over-representation of Indigenous people in federal custody has reached a new historic high, according to a statement released by the Office of the Correctional Investigator.

Correctional Investigator of Canada Ivan Zinger said despite the findings of royal commissions and national inquiries, court interventions and political promises, over the last three decades, “no government of any stripe has managed to reverse the trend of Indigenous over-representation in Canadian jails and prisons.”

Indigenous people account for roughly five per cent of the population in Canada, but when it comes to federal custody Zinger said they now account for more than 30 per cent of the federal inmate population, up from 25 per cent four years prior.

Indigenous women now account for 42 per cent of women in federal custody.

In an emailed statement to CBC News, Jordan Crosby, director of parliamentary affairs for the Ministry of Public Safety, said several actions have been taken by government to address the situation, including legislative changes that are meant to streamline the bail system, investments to support reintegration of previously-incarcerated Indigenous people and the opening of a new healing lodge in Winnipeg.

He also mentioned government commitments to expand diversion programs and the plan to introduce legislation to implement the United Declaration on the Rights of Indigenous Peoples.

In 2019, Bill C-75 ― an Act to Amend the Criminal Code ― came into effect. Among other things, the legislation modified the jury selection procedure under the Criminal Code by eliminating the right of the Crown and defence to make “peremptory challenges” — to object to a proposed juror without stating a reason.

Former Liberal justice minister and attorney general Jody Wilson-Raybould introduced the changes following public outrage over the 2018 trial of Gerald Stanley, a white Saskatchewan rancher who was acquitted of second-degree murder in the shooting death of Cree man Colten Boushie. During the jury selection process for Stanley’s trial, all visibly Indigenous candidates were challenged and excluded by Stanley’s defence team through peremptory challenges.

In the 2017 federal budget, in response to the Truth and Reconciliation Calls to Action, the government committed to $120.7 million over five years, “to address the over-representation of Indigenous Peoples in the criminal justice and corrections system,” according to the federal government website.

Of the $120.7 million, $55.5 million was committed over five years ($11.1 million per year) to the Indigenous Justice Program, which funds community-based programs that use restorative justice approaches as an alternative to the mainstream justice system.

But the Indigenous Justice Program is not a new initiative in response to the TRC’s Calls to Action. Prior to the IJP, the Aboriginal Justice Strategy, since 2014, received the same level of funding ― $11 million a year ― under the previous federal government.

Canada’s Correctional Investigator Ivan Zinger has issued several reports recommending changes to address the overrepresentation of indigenous people in the corrections system, and has repeatedly called for the creation of a deputy commissioner position at CSC for Indigenous corrections, a position that would be solely responsible for and dedicated to improving correctional outcomes and accountability for federally-sentenced Indigenous offenders.

He told the House of Commons standing committee on public safety in 2017 that “a clear sense of urgency, leadership, priority, and top-level engagement in these matters still appears to be lacking.”

In a statement in May 2022, CSC Commissioner Anne Kelly said she was in the process of staffing a deputy commissioner for Indigenous corrections position.

Meanwhile, the B.C. Prosecution Service brought in a number of policy changes in 2019 aimed at addressing the overrepresentation of Indigenous people in corrections. The new or revised policies for Crown counsel cover bail, probation and charging considerations.

For example, the new bail policy, in part, instructs Crown counsel to consider biases faced by Indigenous people and only seek pre-trial detention when there is a significant risk of the defendant fleeing, if their crime is a violent one or if their release could endanger others.