Episode Transcript
Elizabeth: Welcome to “Advancing justice,” a podcast that explores the interface between human rights, poverty, racism, and the criminal justice system. My name is Elizabeth McIsaac, president of Maytree. We’re a Toronto-based organization exploring solutions to poverty in Canada using a human rights-based approach.
Joining me today to discuss the criminal justice system from the perspective of Indigenous people is Laura Arndt.
Laura is the former Director of Strategic Development at the Office of the Ontario Provincial Advocate for Children and Youth and is currently completing her PhD in Cultural Studies at Queen’s University.
She is the Chair of Indigenous Studies at Centennial College but has taken a secondment from that role to be the Chief Operating Officer of the Survivor’s Secretariat which is investigating the unmarked graves associated with the Mohawk Institute Indian Residential School near Brantford Ontario.
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Elizabeth: Laura, thank you for joining me today for this conversation. As we begin, I do want to acknowledge the time that we’re in. 2021 was a difficult year of revelation in Canada, and an emotionally weighty year for Indigenous individuals, families, and communities, and for Canada coming to terms with all that has transpired with the revelation of the graves of children in residential schools.
I also want to start by saying thank you to you for your contribution to the “Advancing justice” series. I strongly recommend to our listeners to read your essay, “Indigenous Peoples and the Injustice of Justice.”
At the very beginning of the essay, you quote from the 1996 report: “Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada.”
Here’s what the quote says:
“The Canadian criminal justice system has failed the Aboriginal peoples of Canada — First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural — in all territorial and governmental jurisdictions. The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice.”
That’s a big statement. I wonder if you could elaborate on what this divide in world views is. What does it mean?
Laura: I think I need to start by qualifying my voice in answering the question. I’m not a legal scholar. I’m the daughter of a survivor, and I’m an Indigenous woman. When I speak to it, I start from that place of, what I call, those deep constitutional roots. Fundamentally, if we go back to how the relationship between Indigenous people in Canada, and that which became Canada, played out, we started with a treaty mechanism that talks about relationships. And we then became part of a process that was done to us versus being part of a relationship.
The understanding of Indigenous people, as people, as equal, as self-determining, has been a fundamental failure of how Canada has engaged with Indigenous people. We are now so far into this 150-plus years of being Canada, and as a woman who is Indigenous and Status Indian under the Act, I have fewer rights than anyone else in this country because my reality is still governed by the fact that I’m a ward of the state.
And so when you then become part of a conversation around justice, how can we talk about a country that is a beacon on human rights and justice when the original peoples who were on these lands are not even equal citizens or equal voices in conversations about this country? For me, that’s the heart of the injustice: the fact that we don’t enter any conversation where our voice is equal to that of the state or any other citizen in it. And it’s not equal because the law says so. The legislation says so. And how do you move beyond that when you’ve got an Act that is older than this country still governing how I exist in this country?
Elizabeth: It’s a profound difference.
When we begin to look at the criminal justice system, which is the focus of this series, we know that Indigenous people are overrepresented in the justice system, in incarceration. We began to see some changes of how to approach that. So by the mid-90s, the Criminal Code itself was amended to require courts to consider incarceration as a last resort when sentencing people, and especially when sentencing Indigenous people for whom systemic failures may have contributed to bringing that person in front of the court. How significant is this? What difference did that make?
Laura: If you were to solely look at outcomes, the outcome is actually the reverse of the intent. There is in fact more Indigenous people incarcerated now than before the revisions to the Criminal Code. I think there has been an ongoing struggle to ensure that the courts truly apply Gladue as intended. Where Gladue was supposed to anchor the context and understanding of legacy, it’s actually become an extremely powerful tool to support the risk factors that keep Indigenous people in jail. So, I think the intent was there, the outcome has not come anywhere near what people had hoped we would see come from Gladue.
I have been working with youth in Northern Ontario for a better part of 11 years. And in a lot of the conversations the young people were having, it’s interesting how little Indigenous people know what Gladue was about, what the provisions of Gladue and the creation of the Indigenous courts were intended to do because they’re not seeing the benefits. In fact, I think it’s just deepened the mistrust between the justice system and Indigenous people.
When I say the justice system, I’m not just talking about the courts. I’m talking from the first moments of contact with policing through the courts to sentencing, and then into jails. I think the Gladue writers, and the process of ensuring that the truth and the experiences and the factors that contribute before somebody being in the court are powerful, but they’re not being used in the way that it was intended to support alternatives and strengthening of community-based resources and alternatives.
Given the rate of incarceration, there is nowhere near the resources and services in place that would be needed to ensure that Gladue is richly implemented, and that people get the alternatives that they need towards their healing work.
Elizabeth: Not everyone may be familiar with what Gladue is. So Gladue reflects a Supreme Court decision in 1999 that led to a set of principles, a certain type of court, and certain kinds of reports. Can you tell us a little bit about what the origin of that was? And I think really important also is the real-life experience of the person for whom this was named, Jamie Tanis Gladue. And I think that’s the story part of it we need to hear.
Laura: The reality is that this was an Indigenous woman who was charged with the murder of her common-law partner. And in the course of her trial, part of the decision in her sentencing was that the Gladue principles that were in place at the time, so that you would look at all other alternatives, you would look at the history and the factors, systemic racism in the sentencing of a person.
Elizabeth: The life experience.
Laura: Yeah. And you would factor all of those things into the alternatives. So it isn’t a Get Out of Jail Free card. Because when making these considerations, it’s at the time of sentencing. So at the time of sentencing for her, the initial judge made the decision that because she was living off reserve, she did not meet the provisions. And so it became a Supreme Court challenge that then, over the course of time, became the basis for seriously taking a look at being Indigenous is being Indigenous whether you’re on reserve or off reserve. And judges’ ability to make decisions to whom the principles would apply to became central.
And I think the thing that became important in Jamie’s case is the fact that, at the end of it, it played minimal impact on the overarching sentence that she received. I think the bigger conversation is the applicability and the importance of looking at the legacy and the understanding of a history, and that you don’t have to be living on reserve to be part of that long legacy associated with being Indigenous and being part of that intergenerational trauma that comes from colonialism, racism, the Indian residential school system.
And so she became one of those groundbreaking decisions, and I wish I could say transformed how Gladue was applied. But the reality is it continues to be a struggle around consistency of it being applied, how courts and how lawyers and judges understand the principles.
Part of the struggle in this conversation is that when you think of what lawyers bring to their practices and judges bring to their practices, in most law schools, when we talk about civil rights, even today, for the most part, when we talk about civil rights, we talk in law school about the civil rights movement in the United States.
We don’t talk about Canada’s struggles around human and civil rights. So many lawyers who are trained in this country don’t know the history of the Indian residential schools. They don’t understand how that legacy puts somebody before the courts.
Elizabeth: You’ve touched on some really key factors in the question of why it is that we’re not seeing a change in the numbers, in the number of people in the courts, the number of people incarcerated all the way through the system. Are we seeing any movement? Or are the numbers going in the same direction? Are we still seeing more numbers? Are we not seeing any improvement?
Laura: Even during COVID, the rates of incarceration for Indigenous people are going up. So where in most of through this pandemic, what we’ve seen is people being released, trying to decrease the numbers in both provincial and federal systems wherever possible, the numbers have not gone down as substantively for Indigenous people. I think the numbers are running between 33 and 38 or 39% for Indigenous people in jails, in federal and provincial jails. That’s 33 to 39% of the total population.
Elizabeth: And the actual population is closer to 4%?
Laura: Yeah. And on top of that, I think the hard thing for me in the equation is, when all of this started, I think the numbers were running between 18 and 24%. They were much lower, a minimal of 10 to 14% lower than they are today.
Elizabeth: So how do you make sense of that?
Laura: Part of the dilemma in this is that the very factors that are considered in the writing of those Gladue reports are all the factors that put somebody before the court. And once they’re sentenced, and if they’re incarcerated, those very same factors become considerations around parole. The reality is the factors that Gladue highlights are also the high-risk factors that say you should keep someone incarcerated.
The dilemma is that Indigenous people are often in this double bind of doing the Gladue report, and then the Gladue report becoming implicated in sentencing. And it’s a point that was raised by the former federal ombudsman for corrections. He was clear that the struggle around what the role the Gladue reports play in perpetuating people before the courts and lengthy sentencing is unmistakable.
Part of the reason I really wanted to do the piece is I used to work in the youth justice sector. And on top of working in the youth justice sector, I’m also the mother of two kids. My son’s a rather large Indigenous man. He stands about 6’2″. And it was interesting because the number of times my son has had run-ins with the police. And it’s been insane to the point that my son has a phone number for a lawyer because of the fact that he knows he’s going to get stopped. And the first thing he says is, “I have a lawyer. What am I being stopped for?”
My son has a target on him. And I’ve had a target on me. I mean, I literally, I spent nine years working in Northern Ontario where I can’t dress down. The idea that I would walk around in a sweatshirt and be casual doesn’t happen because all I do is you get harassed, you get called “Bogan.” I’ve had police not want to deal with matters. I’ve had security threatening and intimidating me simply because, in those spaces, it’s okay to treat Indians badly.
I think the nature of the social stereotypes and the social othering that still exists for Indigenous people in urban centres, and especially in Northern communities, puts us before the courts all the time. Because if we look at people the wrong way, or they think we look like we’re intoxicated, or they think we look like we’ve committed a crime, it’s as good as done.
I think the unfortunate reality is we’ve got a justice system that still sees us as the Indian problem. And because we’re still the Indian problem, the combination of the social and justice and media relationships that exist perpetuate keeping us locked in stereotypes that support the fact that we are more suited to an incarceration setting than we are suited to being part of the social and inclusive communities that are the province of Ontario.
Elizabeth: In all of that, where’s the way forward? Where do we begin?
Laura: I think if you really want the technical richness of who you should talk to about how you change the court systems, there are amazing minds out there. There’s the Jonathan Rudins of the world, the Kim Murrays of the world, the Christa Big Canoes, and folks who are working in Northern communities through NAN Legal Services. They’re doing great work to try and figure out where we go from here.
I think the other parts of what they’re doing is placing increased focus on Indigenous justice models and reclaiming them. And finding ways that communities can use their own court systems and their own justice models, restore them so that as part of this healing journey of reconciliation you start re-establishing that which was the strongest part of our communities. And it was the way we monitored and held ourselves accountable.
This is not our justice system. These tools of punishment are not how justice models for Indigenous people are anchored. It doesn’t mean that Indigenous restorative justice models aren’t about dealing with people’s behaviour, but it’s about restoring balance to the relationship.
When you start looking at restorative justice frameworks and Indigenous restorative models that are anchored in understanding your relationship to the community, what needs to be done to restore that relationship and balance, and how the actions you take moving forward play a role in that, I think those are really important things.
I’ve worked in community where I’ve seen young people part of a restorative process, and where things have happened. And as a result of meeting with the community, meeting with the elders in the community and conversations, there’s a mapping of a path forward. And it’s a very different thing because the community’s part of the conversation. It isn’t like you make somebody invisible. But I think for that to happen, there has to be investments, that support that Indigenous models of justice are valued, central, and critical in a relationship that sees Canada’s ways of justice can co-exist with an Indigenous justice model.
I don’t think I’ve ever heard an Indigenous person say to the Eurocentric models that we want our model applied to them. On the other hand, the exact opposite is being said to Indigenous people, it’s a one model fits all. But it’s a model that has continued to be part of a system that has been focused on, and there’s no other word to say, killing the Indian and the child. But when you do the restorative frames of an Indigenous framework, it’s about restoring balance in the Indigenous community, and you’re part of that community. So I think there are great things that can be done.
And there are programs that exist. I know Aboriginal Legal Services in Toronto has wonderful programs. I know that the province has supported programs that are focused on Indigenous models and Indigenous community supports. The problem is they’re generally small. And I think often communities find themselves trying to find the resources and build capacity at the same time that people are in need of the resource. And I think that there just isn’t enough happening fast enough to meet the need that exists, if that makes sense.
Elizabeth: It does. The answers lie in reaching into Indigenous culture models, knowledge, communities, and resourcing it. And that may not happen overnight.
It’s hopeful to hear that it’s being tried. There are successes being seen. Are there things that need to also happen in the existing criminal justice system? Do we give up on that and just focus on the Indigenous model? Or are there things that still have to be pushed so that it doesn’t continue to lock up so many people?
Laura: Again, I’m not talking as a lawyer. I’m talking as a community person. I think the things that need to happen is you do need to expand the Indigenous people’s courts. We need to have more of them, and we need all lawyers to be trained. We need them to be trained in understanding the legacy of colonialism and the impact it’s had on Indigenous people, and the impact of the Indian residential school system. I think if we can get lawyers, those lawyers become judges. If they have an understanding, then there is a greater capacity to engage in understanding that something other than locking someone away needs to be the answer.
By expanding the courts, you have to also expand the alternative resources for sentencing. And ensure that when they’re expanded, people are getting the resources they need closer to home.
I don’t think anyone will ever deny that the greatest source of strength when you’re going through the most difficult time in your life is often your community and your family. And if that’s true, we shouldn’t be sending people to other provinces because the resources do not exist. And that means we need to have land-based programming. We need to have cultural programming and elders available to people within proximity of their communities. We need to be creative around how those resources are available.
I think COVID has torn some of the anxiety away from some things we can do online that we didn’t want to agree that we could do before. We see increasingly some wellness resources, some counseling services being provided in an online format. So going to where people need support. And if we can’t get to them, making sure that technology is used to close the bridge and close the gap.
When we talk about reclaiming Indigenous ways of knowing, it means we need to get curriculum in classrooms, so people begin to know what that was and what that is. Then they can begin to understand where do we go from here? So I think providing opportunities for students to understand how communities and cultures and justice models existed. And instead of noting them as primitive, and noting them and dismissing them, what we need to do is start understanding how they worked so that Indigenous students can then understand that if they want to be a lawyer, how can some of the things they know about their culture become part of the way they practice as lawyers? And if they’re social workers and social services people, how can their work and skills be targeted to working within their own communities, supporting their own people? Because right now there isn’t the funding or the resources for people to return home to get the jobs that are needed to support communities.
I think the justice system is a huge part of the problem, but structurally the relationship between Indigenous people and Canada needs to change. I think how we return to the original relationship has to be central. And I think that’s what the work of the Truth and Reconciliation Commission says in the Calls to Action.
There are calls that are very specific to the justice system. There are very specific calls to the professions of social services. And there are calls for training for lawyers in law school. There’s also ongoing calls for how curriculum is developed and the way Indigenous people are part of the broader conversations in this country.
And it’s really hard for me to say that you just change the justice system. You can’t. Because I think one of the hardest problems that we all have to navigate in all of this is that when we even talk about the Gladue principles, when people who are non-Indigenous talk about it, the first thing many people say, “It’s a get out of jail free card.” So there’s this perception that we’re getting a break, we’re getting a deal. The fact is people in this country, not just Indigenous people, non-Indigenous people need to know the truth. And the truth is the provisions that we now call Gladue are about understanding the life circumstances of people, the impact of structural racism on the reason they’re before the court, and that you look for all possible alternatives other than incarceration.
On the other side of the equation is when we’re the victims of crime, those who’ve committed the crimes against us often get a less significant sentence than we do. And because there isn’t something that talks to the way their history is portrayed, their previous life experiences, it’s often saying you need to give them a break. You need to consider it. But why is it that giving someone a break only really applies when they’re non-Indigenous. Because when they’re Indigenous, we don’t give them a break. We hold it against them when they’re incarcerated, when they come up for parole, when they’re in community sentencing. And at the end of the day, there isn’t justice.
The inequity in the sentencing is a reflection of the inequity that’s been put in place. That no matter whether you’re on the sentencing side or the victim side, you’re not going to see justice.
Elizabeth: So it goes back to the point that you made earlier around implementation. The idea of Gladue, the idea of Gladue principles, the idea of Gladue courts, the idea of Gladue reports make complete sense, provide context, assess what has happened in light of that person’s life and experience. And yet when it’s not properly implemented, it comes back to actually have an adverse effect. And when, as you mentioned, parole, that it comes back there, and it becomes an excuse not to be released. So the danger of what happens when we don’t implement properly.
Laura: It comes down to context. Context is everything. You need to understand the landscape in which the experience of the person who’s before the courts lives. And if you cannot move beyond simple words on paper to take in exactly what it means, you never fully have the richness of understanding. And I think that’s where the educational piece comes for lawyers. So lawyers can say, yes, that’s right. I remember hearing about the Indian residential school system. Yes, I remember hearing there was more than 100 of them in the country. And that generation after generation of children were ripped away from their parents, that they were exposed to violence, physical violence, sexual violence, psychological violence. That they were malnourished. They weren’t properly fed. They weren’t parented. They weren’t loved. And they got angry.
And that anger often was directed at their families, their communities, and to the world around them, which put them before the courts. And then we put them in jail because they committed a crime, and they committed the crime in the context of a fact that they were so damaged as a result of a system we created, that when we put them in jail, we didn’t help them. We just fueled the anger. And when they came out, the cycle of abuse continued. And then the next generation of children went into the Indian residential school system. Came out angry, came out disengaged, came out fractured and damaged and traumatized. They hurt people. They committed crimes. And then the cycle continues.
Then what happens is you have people who are observing it who are not Indigenous saying, yeah, those Indigenous people are really violent and they’re really out of control. But they don’t know that those children were part of a system this country created, that this justice system perpetuated. And that in fact, they aren’t violent. They’re a product of a system that was created to kill them.
I think if we could get lawyers understanding the viciousness of the cycle, and judges understanding that this cycle has proven the courts aren’t the way to go, that’s your entry point. And I think that’s why some of the recommendations Justice Sinclair talked about in TRC, when you intersect them with some of the recommendations that came out of Murdered and Missing, and then you intersect them with the original intent of what Gladue should be, maybe it’s time for a national summit. Bringing it all together and say, okay, what are we going to do? And Canada has to work hard with the bodies that represent the incarcerated people to create a mechanism to move this forward. I mean, Gladue, the intent was ideal. It’s not working the way they intended. So how do we go back to the conversation and start again?
Elizabeth: So the ideas are there. That’s where the hope is. There are ideas. There are examples. We know that, as you’ve pointed out, where it’s rooted in Indigenous models and knowledge in communities, you see success, but it’s about figuring out the path forward and how to make that come together. I think that’s a hopeful end.
Laura: I think so too. And I think the other thing that’s really important for me is I do believe in hope. I don’t want to be the person who says, and I know this because I’m an Indigenous woman who lives in a home with a survivor who says, “Don’t put your head out there because nothing’s going to change.” Everything’s got to change. And it’s got to change because our kids need it to change, because they’re the next generation of people that will be incarcerated.
I don’t want the next generation of moms to be nervous like I was. I now have a 29- and a 37-year-old. Being the mom of a racialized kid is a hard thing. And I live in an area called Malvern in Scarborough. Both had licenses as soon as we could get them because we were terrified of them being on transit. We were terrified of them being out at night waiting because we didn’t know what would happen. I don’t want that to be the next generation of parents. We need to fix the justice system. And we need to fix it because all kids deserve to feel the system works for them and that justice can be found and can be delivered for them.
Elizabeth: I think that’s a wonderful note to finish on. Thank you.
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Elizabeth: Thank you for listening to this episode of our podcast, “Advancing justice,” with Laura Arndt. To hear all episodes in this series, please subscribe to this podcast on Apple Podcasts, Google Podcasts, Spotify, or Stitcher. You can find the full transcript of this conversation, links to resources and other contributions to our series on the Maytree website at www.maytree.com.
