We must address discretionary failures by prosecutors and police that perpetuate violence against Indigenous people. There must be redress.

In December 2018, an Inuk woman, the victim of domestic violence, called the RCMP to protect her safety. Instead of being helped, A(M) was arrested, detained, charged and found guilty of drinking in violation of her bail conditions. A similar situation, the case of K(M), had unfolded a year earlier, the justice of the peace in Iqaluit who handled the A(M) case noted.

Both situations are typical examples of the systemic problems of under- and overpolicing of Indigenous communities that are in part responsible for the overrepresentation of Indigenous people in the criminal justice process.

Underpolicing and overpolicing as forms of state discrimination

The documented phenomenon of underpolicing consists of the lack of resources and support invested in programs and measures to protect Indigenous people, particularly women, from danger and violence.

Underpolicing is intertwined with the phenomenon of overpolicing, which includes the mistreatment of Indigenous women across Canada by police and prosecutors: the women are criminalized, blamed and not seen as victims, particularly when they fail to respect certain court orders. Indeed, these continuing discriminatory practices have contributed to distrust, underreporting and the endangerment of women’s lives, as documented by the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls and a recent report titled Addressing Gendered Violence against Inuit Women: A Review of Police Policies and Practices in Inuit Nunangat. These reports illustrate that women, even when their lives are endangered, are reluctant to call the police because of negative experiences they have had with state authorities.

Overrepresentation of Indigenous people in the criminal justice system

These phenomena have led to the overrepresentation of Indigenous people in the criminal justice process, which is also widely documented, including in the report of the Aboriginal Justice Inquiry of Manitoba and the report of Canada’s Truth and Reconciliation Commission. It is due in part to the phenomenon of overpolicing as well as a series of decisions made by criminal justice decision-makers that discriminate against Indigenous people at every stage of the process, including in the following decisions: arrest, charging, bail/pretrial detention, sentencing and parole.

In January, the Correctional Investigator of Canada reported a troubling rise of Indigenous people behind bars, surpassing 30 percent though they form only 5 percent of the general Canadian population. It is even more troubling for Indigenous women, who account for 42 percent of the female inmate population.

Current institutional responses

The Supreme Court of Canada in both R. v. Gladue and R. v. Ipeelee recognized that the overincarceration of Indigenous people is a product of colonialism and criminal justice decision-making. As a response, it recognized that sentencing judges have legislative duties under the Criminal Code to consider (1) the unique systemic or background factors that might have played a part in bringing the Indigenous person before the courts and (2) alternative processes or sanctions, which might be appropriate in the circumstances because of the person’s particular Indigenous heritage or background.

Since 2019, the duties in Gladue have been legislatively expanded to police, justices and judges in decisions made about arrests, bail and pretrial detention under 493.2 of the Criminal Code. Would police officers in the cases of A(M) and K(M) have made different decisions if this law had been in place at the time? If not, what mechanisms would be available to challenge police discretion? Current legislation is not clear.

Despite this expansion, Gladue duties are not equally mandated for prosecutors across the country. In some jurisdictions like Nunavut, applicable Crown manuals include such considerations, but they do not have a statutory status to enable enforcement.

Interestingly, there are prosecutorial duties, such as the duty to disclose evidence to the accused, that have been considered important enough in the criminal process to merit review mechanisms and enforcement. Further, the abuse-of-process doctrine recognizes that when prosecutorial decisions are considered an abuse of process, they are also reviewable. Similarly, in England and Wales, prosecutorial guidelines and decisions are also subject to review in certain circumstances.

Since as a society we recognize that the failure to consider Gladue duties contributes to discriminatory practices, including under- and overpolicing and the overrepresentation of Indigenous people in the system, why not hold state agents, including prosecutors, accountable to a standard that would enable enforceability and redress when these duties are ignored?

Surely this would also align with the role of prosecutors as ministers of justice who need to take decisions in the public interest. The public interest would indeed be rooted in values found in Gladue, namely substantive equality, reconciliation, awareness and responses to systemic discrimination as well as openness to Indigenous legal traditions and legal pluralism.

Justice of the Peace Joseph Murdoch-Flowers, in the cases of A(M) and K(M), reminds us that “the police and the Crown must guard against …‘institutional indifference.’ They must be sensitive to the big picture, and they must not allow legal papers” — in this case, bail conditions — “to get in the way of decency and common sense.” Are we not referring to Gladue?

Without explicitly considering the Gladue framework as an important dimension of state governance and an enforceable duty that applies to all state decision-makers, including prosecutors, it will be hard to simply rely on what Justice Murdoch-Flowers refers to as “decency and common sense,” particularly when these terms have historically been used to legitimize colonialism and discriminatory practices.

In his decision, Murdoch-Flowers also concludes that police and Crown in both cases failed to properly exercise their discretion. What happens when such failures take place? Should these institutions be held accountable? Should these decisions be reviewable and situations redressed? Without an appropriate framework that enables oversight, review and redress of such discretionary failures, these systemic problems will remain. In both A(M)’s and K(M)’s cases, these decisions remained without redress.

Murdoch-Flowers’s decision is commendable for bringing forward once again these issues and providing reflections on the importance of having police and prosecutors take into account Indigenous histories and systemic and background factors in their decisions.

Nevertheless, this decision also illustrates some of the limitations of our system. Indeed, there are no enforceable requirements that encourage forms of governance and decisions discussed in Gladue, and no mechanisms of accountability to address the failure of police and prosecutors to take into account Gladue principles in their decisions.

Finally, justices of the peace also have limited legislative and constitutional powers to redress state abuses, and they need to sanction individuals who make it to sentencing. Indeed, in his sentence, Murdoch-Flowers in both A(M) and K(M) pronounced an absolute discharge. Although it was the least punitive sentence available, it is not tantamount to an acquittal and holds the individual, instead of the state, accountable. It remains a finding of guilt that perpetuates the phenomena discussed above, and can have important consequences for various aspects of a person’s life, including employment prospects and housing opportunities — some of the root causes of reoffending and the overincarceration of Indigenous people.

Photo: Shutterstock, by TheRenderFish.