State of the Criminal Justice System Dashboard
Understanding Indigenous Women and Girls’ Experiences within the Correctional System
Pathways and Involvement in Crime
The literature on pathways to crime has often connected women’s criminalization to experiences of victimization. The victimization-criminalization continuumFootNote111 contextualizes women’s criminal behaviour within their personal experiences of violence and victimization. Many coping strategies to deal with victimization or pathways to crime can move women along the continuum, increasing their risk of criminal behaviour.FootNote112 This is especially true for Indigenous women as many who have been convicted of criminal offences have experienced prior victimization, including physical and sexual assault, and emotional and psychological abuseFootNote113. The involvement of Indigenous women and girls within the criminal justice system needs to be considered within this context.
The dispossession of Indigenous peoples from their traditional lands and territories and the impacts of decades of government assimilation policies have led to the social and economic marginalization of Indigenous women and girls within Canada as a whole, as well as within Indigenous nations. This has contributed to numerous factors commonly associated with increased risk of victimization and criminalization, for example: increased strains on families; lower educational attainment; unstable employment histories and overall lower income; and higher rates of substance use and abuse.Footnote 114
Programming and/or treatment that focuses on criminogenic needs, especially within the prison context or through community-based programs, is essential to reducing the likelihood of re-offending.Footnote 115 Indigenous women are more likely to have high criminogenic needs for supports and services at the time of intake into a federal institution compared with non-Indigenous women.Footnote 116 For example, Indigenous women often have greater needs related to substance use and addiction.Footnote 117
Incarcerated Indigenous women also frequently have needs related to mental health such as diagnoses for major depressive disorder, post-traumatic stress disorder, anxiety, eating disorders, and other mood and personality disorders.Footnote 118 This is of particular concern given that such illnesses can be exacerbated by prison conditions and, if they lead to disruptive behaviour, self-harm or violence, they can result in even more restrictive and punitive conditions of detention.Footnote 119 Research has also shown that the prison environment is often not conducive to therapeutic interventions and healing.Footnote 120 Specifically, certain aspects of the prison environment, such as isolation, confinement, and a focus on security, can interfere with best practices for treating the most serious mental health issues.
It is estimated that half of the Indigenous women population in federal corrections experienced the traumatic impacts of the residential school system, either because they were survivors of the system themselves, or had a relative who was a survivor.Footnote 121 Trauma-informed and culturally appropriate practices and interventions are important to meeting the needs of criminalized Indigenous women, particularly those who have histories of abuse and mental health issues. However, despite an established need for mental health supports, many Indigenous women in the correctional system continue to go without treatment for mental illness.Footnote 122
Sentencing Alternatives and Gladue Principles
To address the over-incarceration of Indigenous people in the criminal justice system, Section 718.2(e) of the Criminal Code, introduced in 1996 and a series of subsequent Supreme Court of Canada decisions,Footnote 123 instruct sentencing courts to consider all available reasonable sanctions other than imprisonment and to give particular attention to the circumstances of all Indigenous offenders. The Youth Criminal Justice Act contains equivalent provisions. These principles are known as the Gladue principles after the first major decision in which they were articulated (R. v. Gladue). The Gladue principles apply to bail decisions, sentencing, parole hearings and other areas of the criminal justice system.
Gladue principles are applied through the preparation of Gladue reports, identifying relevant systemic and background factors in the individual’s life that are to be considered by courts. Studies have shown that properly prepared Gladue reports can help judges in sentencing decisions.Footnote 124
However, Gladue reports are not always prepared due to lack of funding, lack of specialized report writers or lack of formal procedures ensuring that reports are prepared for all Indigenous accused.Footnote 125 Significant concerns have also been identified about the responsiveness of Gladue processes to the specific contexts of Indigenous women and girls including, parenting responsibilities, the impact of the displacement of many women and their descendants due to colonial laws and policies, and, overall, the disproportionate and pervasive threat of violence to Indigenous women and girls.Footnote 126
The court’s ability to act on the considerations set out in a Gladue report may also be restricted if there are few available options for non-custodial sentences. The need for alternatives to imprisonment, including culturally-based services, has been widely noted, including by the Truth and Reconciliation Commission of Canada in its Calls to Action 31 and 35.Footnote 127“Gladue factors…are, in effect, used against Indigenous women…The fact that Indigenous women have often experienced extreme trauma, poverty, substance use, and other forms of marginalization is used as evidence that they need more correctional intervention and more time in prison.” (House of Commons Standing Committee on the Status of Women 2018)
There have also been concerns raised that a Gladue report may have the opposite result of what is intended. This includes courts interpreting Indigenous women’s history of trauma or prior involvement of the criminal justice system as indicators that they need more time in custody rather than less.Footnote 128 There is also the risk that a history of victimization may be minimized (consistent with the normalization of violence against Indigenous women) while acts of violence committed by Indigenous women may be more severely punished for “falling outside gender stereotypes.”Footnote 129 These concerns underline the importance of system-wide training on gender-based violence, colonization and trauma.
Correctional InstitutionsThe need for “…the Government of Canada to classify, in its initial assessment and whenever possible, Indigenous female offenders at a medium security level or lower in order to provide them with appropriate treatment and rehabilitation services…” (House of Commons Standing Committee on the Status of Women 2018).
Indigenous women are more likely than non-Indigenous women to be classified as high-risk when incarcerated and face increased limitations imposed due to this classification.Footnote 130 Background factors such as intergenerational trauma, substance use, prior history of violence and abuse, lower educational levels, job insecurity, and history of mental illness can lead to higher security classifications for Indigenous women when admitted to correctional facilities.Footnote 131
Women who are classified as high risk may struggle to access family, Elders, and programming. Further, those women in most need of support with past trauma and/or mental health needs are the most likely to be facing restricted/reduced access.Footnote 132 For example, healing lodges are available only to female inmates who have received a minimum or medium-security classification, which excludes many of those with the greatest and most complex needs. This reduced access to programming can also negatively impact their chances of successfully applying for parole.
Culturally Appropriate Custodial Programming
There is widespread recognition of the importance of healing and rehabilitation programming designed to meet the distinct and specific needs of incarcerated Indigenous women and girls,Footnote 133 including needs arising from individual experiences, historical conditions and systemic issues such as intergenerational trauma.Footnote 134 Cultural programming is a central part of such programming. Research has shown that completion of a culturally relevant program increases the likelihood of obtaining early parole and a reduced likelihood of returning to custody.Footnote 135“Participants voiced support for culturally grounded rehabilitation and reintegration programs in correctional facilities, such as healing circles, increasing access to Indigenous ceremony or on-the-land programs, Indigenous art and culture workshops, and support from Elders. Participants argued that these programs offer holistic support to help address root causes of violence and criminality, rebuilding offenders’ sense of identity and positive self-worth while reducing recidivism.” (National Inquiry 2019)
However, there is inconsistency across Canada in the availability and quality of rehabilitation programs and other supports and services designed to meet the specific needs of Indigenous women and girls.Footnote 136 A lack of programming can affect eligibility for early parole, successful community integration, and the ability of Indigenous women to break the cycle of offending.Footnote 137
The most substantial and integrated form of cultural programming is offered through residential healing lodges. There are however several important barriers to accessing this type of facility. For example, healing lodges are only available to women who are classified at a minimum security or, in some cases, medium security level.Footnote 138 This makes many Indigenous women ineligible, particularly given that Indigenous women make-up a disproportionate share of offenders classified as high risk.Footnote 139 Furthermore, for some women, access to a healing lodge would require relocating far from their home community and family. This complicates the decision to seek out a transfer; women must weigh the potential programming offered by the healing lodge, against a reduction in community and familiar support. It is also important to note that healing lodges generally reflect a First Nations model of healing that does not necessarily meet the specific needs of Inuit or Métis women.Footnote 140
Parole and Reintegration
Parole, especially early release from prison, can be helpful to a successful reintegration into the community.Footnote 141 Data show that compared to non-Indigenous women, Indigenous women serve a greater part of their sentences prior to being granted parole.Footnote 142
Barriers to obtaining parole include maximum-security classifications that prevent Indigenous women from participating in programs that could be used to support their rehabilitation, and parole application. As a consequence, Indigenous women serve more of their sentences than non-Indigenous women and are often not released until the statutory release date. Further, as a consequence of inadequate rehabilitation, Indigenous women are more likely to return to prison due to their parole being revoked or suspended.Footnote 143
Many communities lack culturally relevant post-release supports and services such as access to Elder programming to help facilitate the reintegration of Indigenous women offenders back into their communities or culturally sensitive transition houses. Indigenous communities often lack adequately resourced mental health supports and services, and also have high levels of unemployment, which are again not conducive to a successful reintegration.
Factors that may have contributed to the socio-economic marginalization of Indigenous women prior to imprisonment, such as lower educational attainment, limited work experience and, lack of a permanent home address, continue to negatively impact successful reintegration of Indigenous women into society upon release from custody.Footnote 144
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