Rethinking the “Crisis” of Indigenous Mass Imprisonment

Abstract

In R v Gladue, the Supreme Court of Canada famously remarked that the incarceration of Indigenous people represents a “crisis.” Since Gladue’s release, the language of “crisis” has been used with frequency in Canadian legal discourse. In this article, I analyze how this language has shaped the broader legal understanding of Indigenous mass imprisonment. My focus is not on specific iterations or uses, but on the cumulative impact of the language of “crisis” over the last twenty years. I suggest that however well-meaning these representations may be, their cumulative impact is harmful. In the face of the relentless intensification of Indigenous mass imprisonment, the language of “crisis” has operated to subtly entrench the colonial structures it purports to disrupt. Urging a shift away from its use, I argue that the language of “crisis” is not only ill suited to address the problem, but is part of the problem.

Résumé

Dans l’arrêt R. c. Gladue, la Cour suprême du Canada constate que l’incarcération des peuples autochtones représente une « crise ». Depuis la publication de l’arrêt Gladue, l’expression « crise » a été fréquemment utilisée dans le discours juridique canadien. Dans le présent article, j’analyse comment ce langage a façonné une compréhension juridique plus extensive de l’emprisonnement de masse des autochtones. Je ne me concentre pas sur des itérations ou des utilisations spécifiques, mais bien sur l’impact cumulatif du langage de « crise » au cours des vingt dernières années. Je suggère que, aussi bien intentionnées soient-elles, ces représentations ont un effet cumulatif néfaste. Face à l’intensification incessante de l’emprisonnement de masse des autochtones, le langage de « crise » a opéré un enracinement subtil des structures coloniales qu’il prétend entraver. Exhortant à l’abandon de son utilisation, j’affirme que le langage de « crise » est non seulement mal adapté pour répondre à ce problème, mais plus encore qu’il fait partie dudit problème.

Introduction

In its 1999 decision in R v Gladue, the Supreme Court of Canada famously remarked that the incarceration of Indigenous people in Canada represents a “crisis.”¹ In this landmark case, as well as in its 2012 follow up decision in R v Ipeelee, ² the Court altered the methodology for sentencing Indigenous people, with the goal of reducing incarceration rates, remedying injustice, and addressing systemic disparities. But in the twenty years since Gladue’s release, Indigenous mass imprisonment has only intensified. The gap between Indigenous and non-Indigenous people within corrections continues to grow, with Indigenous people routinely serving longer sentences under much harsher conditions of confinement. The injustices, inequalities, and prejudices that characterized the legal system in Gladue’s time continue to thrive. The “crisis,” as it were, persists.

While Gladue and Ipeelee did not meaningfully alter the Canadian incarceration landscape, they are not without impact. One of their most significant contributions has been to entrench the characterization of Indigenous mass imprisonment as “crisis” in Canadian legal discourse. Since Gladue’s release, courts, independent bodies of inquiry, the media, and others, have labelled and conceptualized Indigenous mass imprisonment as “crisis.” In this article, I analyze how this language has shaped the broader legal understanding of Indigenous mass imprisonment. My focus is not on specific iterations or uses, but rather on the cumulative impact of the language of “crisis” as deployed in the dominant Canadian legal discourse over the past twenty years. Viewed individually, some of the decisions, research reports, or media pieces surveyed below use the language of “crisis” in a thoughtful manner, in an effort to address the problem and usher in change. As a settler, I have deployed the language of “crisis” in these same well-meaning—albeit misdirected—ways. I suggest that however well-meaning these representations may be, their cumulative impact is harmful. More specifically, I argue that the language of “crisis” is not only ill-suited to address the problem, but is in fact part of the problem.

I make two central claims in support of this proposition. First, I argue that the term “crisis” is a misnomer. “Crisis” implies that Indigenous mass imprisonment is somehow exceptional—an unstable phenomenon that is, as crises are, transient and unique. While this language may be effective in capturing the urgency or severity of the problem, it also mischaracterizes its nature and thus impedes understanding. Unlike crisis, Indigenous mass imprisonment is neither anomalous nor transitory. Rather, like colonialism itself, it is entrenched in the fabric of the Canadian legal system. There is nothing extraordinary about the steadily rising rates of Indigenous incarceration; they are as predictable and fixed as the colonial structures that produce them. As deployed, the language of “crisis” obscures this fact. By presenting Indigenous mass imprisonment as atypical, this language makes it more difficult to recognize Indigenous mass imprisonment as colonial violence.

Second, the language of “crisis” suggests that Indigenous mass imprisonment is capable of resolution through a decisive change or juncture, as crises are. Labelling Indigenous imprisonment as “crisis” registers as a call to arms that, as Gladue asserts, demands “recognition” and “response.”³ To that end, both Gladue and Ipeelee outline a sentencing methodology designed to reduce the high rates of Indigenous incarceration. But even as this methodology identifies some of the embedded structures that produce “crisis,” it does little to challenge the operation of Indigenous mass imprisonment or disrupt its ordering. More specifically, neither Gladue nor Ipeelee meaningfully assign legal responsibility for “crisis,” and instead, disperse responsibility for its production. In doing so, both decisions take part in what Gordon Christie terms colonial ordering: the Court deploys the same colonial justificatory framework it ostensibly critiques, with the result of deepening and strengthening Canada’s colonial narrative.⁴ The effect is to distance, and even disappear legal responsibility for ongoing colonial violence.⁵ With every iteration, and in the face of the relentless intensification of Indigenous mass imprisonment, the language of “crisis” loses whatever value it might have had and operates to subtly entrench the very colonial structures it purports to disrupt.

Following this introduction, I discuss the Gladue and Ipeelee decisions in some detail. I then briefly analyze how the language of “crisis” has proliferated since Gladue’s release through court decisions, reports, and media accounts. Following this, I survey the extent to which Indigenous mass imprisonment continues to intensify. I then explain why I view the language of “crisis” as ill-suited to address Indigenous mass imprisonment and urge a move away from its use. Before proceeding with this analysis, however, I pause to reflect on terminology. To date, most Canadian legal actors, including the Supreme Court of Canada, have spoken of the “over-representation” of Indigenous peoples in corrections. Few have deployed the term “mass imprisonment” as I do here.⁶ As Robert Nichols explains, the rhetorical focus on the over-representation of Indigenous people in Canadian prisons inaccurately presents the problem as one of proportionality. Rather than call attention to the “colonial function of the carceral form,” Nichols argues, this approach erroneously depicts Indigenous mass imprisonment as a “general extension of racialized criminality.”⁷ Too often dehistoricized—and therefore also depoliticized—this approach risks obscuring mass imprisonment’s colonial core, by being insufficiently attentive to “the linkages between carcerality, state formation and territorialized sovereignty.”⁸ By focusing on the mass character of Indigenous imprisonment—rather than the over—I hope to more effectively situate the problem in its historical and political context and gesture toward more effective approaches.⁹

Crisis Declared

While the Supreme Court of Canada declared the existence of “crisis” in its 1999 decision in R v Gladue, Indigenous mass imprisonment had been documented for decades prior.¹⁰ It was in Gladue, however, that the matter first assumed the status of “crisis” in mainstream Canadian legal discourse. In this case, the Court was asked to interpret s. 718.2(e) of the Criminal Code, a provision introduced as part of the 1996 Criminal Code reforms that instructs sentencing judges to consider all available sanctions other than imprisonment for all offenders, paying “particular attention to the circumstances of Aboriginal offenders.”¹¹ In interpreting this provision, the Court explained that s. 718.2(e) is remedial in nature, designed to ameliorate the high rates of Indigenous incarceration, and amounts to clear direction from the government to the judiciary to inquire into, and seek to remedy, the problem. The Court then identified the problem as a “crisis” and, after reviewing statistics about Indigenous incarceration rates, famously stated:

These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.¹²

In addition to declaring a “crisis,” the Court also recognized that the high incarceration rates reflect a complex set of factors, including “widespread racism” and “systemic discrimination.”¹³ The “unbalanced ratio of imprisonment,” it stated, flows from the combination of dislocation, poverty, substance abuse, lack of education, social and economic disparities, a lack of employment opportunities, ingrained institutional bias, as well as “systemic and direct discrimination.”¹⁴

Recognizing that “sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system,” the Court altered the method of analysis that sentencing judges must use in determining a fit sentence for Indigenous peoples. The Gladue methodology requires sentencing judges to take judicial notice of the above-noted factors, and asks counsel to submit case-specific information about the accused to aid the Court in crafting a fit sentence.¹⁵ The methodology also requires sentencing judges to consider the accused’s unique systemic or background factors, as well as the “types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.”¹⁶ The Court emphasized the need for sentencing courts to consider restorative justice principles and urged the need for community-based sanctions.¹⁷ As Hadley Friedland explains, one of Gladue’s most important legacies lies in the Court’s recognition that Indigenous “understandings, ideals and conceptions of sentencing procedures and sanctions were important for Canadian courts to consider.”¹⁸ Indeed, the Court clearly stated that in “all instances, it is appropriate to attempt to craft the sentencing process and the sanctions imposed in accordance with the aboriginal perspective.”¹⁹

Many of Gladue’s insights are significant and worthwhile. When applied with rigour, the Gladue methodology is effective at highlighting some systemic disparities in the legal system and encouraging sentences other than imprisonment. Importantly as well, law reform efforts initiated in Gladue’s aftermath have led to the creation of Gladue courts, as well as other community-based and grass-roots initiatives to address the problem, such as court worker services, problem-solving and therapeutic courts, Aboriginal courts and community-based restorative justice or healing programs.²⁰ The significance of these initiatives cannot be discounted. But while Gladue remains, as Jonathan Rudin maintains, one of the “most significant developments in the criminal law for Aboriginal people,” it has failed to transform the incarceration landscape.²¹ Despite these developments, as David Milward and Debra Parkes wrote in 2011, the “crisis of Aboriginal over-incarceration in Canada has continued unabated.”²²

The Court reflected on Gladue’s failures in its 2012 decision in R v Ipeelee, a case that considered the interpretation of s. 718.2(e) anew. ²³ In this case, the Court revisited Gladue’s application, again emphasizing the urgency and severity of “crisis.” The Court engaged in a more nuanced analysis than it did in Gladue, drawing a direct link between high incarceration rates and the “history of colonialism, displacement, and residential schools.”²⁴ This marks a shift away from an established pattern on the part of Canadian courts of denying the impact of colonialism or concealing the legal system’s role in maintaining its violence.²⁵ Ipeelee explicitly instructs sentencing judges to take judicial notice of colonialism, and of the ways its legacy “continues to translate” in the present day.²⁶ Importantly as well, by locating the crisis in the legal system, as opposed to, for example, Indigenous communities or offending behaviour, Ipeelee, like Gladue, appropriately assume a level of responsibility for the production of “crisis”. Ipeelee thus reads as a powerful reinforcement of Gladue and its principles. It also clarifies ambiguities in the Gladue methodology and its application, providing additional guidance for courts and counsel to effectively implement s. 718.2(e). Finally, Ipeelee also recognizes the limits of this methodology in addressing “crisis,” citing Rudin to ask: “If Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today?”²⁷

Crisis Proliferates

One of Gladue and Ipeelee’s most enduring legacies has been to entrench the language of “crisis” as characteristic of Indigenous mass imprisonment. In the twenty years since Gladue’s release, courts have deployed the language of “crisis” with frequency. Many have cited Gladue without much discussion—stating simply that the rates of Indigenous incarceration “are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system.”²⁸ Others have acknowledged the existence of “crisis,”²⁹ analyzed the nature of the “crisis,”³⁰ or emphasized their broader “duty to endeavour to remedy the crises of drastic over representation,”³¹ or “explore realistic options to incarceration in an effort to address this growing crisis.”³² Some have sought to address “crisis” by urging the need to “take a restorative approach to sentencing and look to the indigenous community for help to achieve it,”³³ or to “give proper weight to the systemic factors unique to the offender… and take a restorative approach in sentencing while at the same time balancing other sentencing principles.”³⁴ Others have noted Gladue and Ipeelee’s identification of the root causes of crisis as consisting of “alienation, poverty, substance abuse, lower educational attainment, lower rates of employment, and bias experienced by indigenous Canadians as a result of Canada’s colonial history and destructive assimilationist policies such as the operation of Indian Residential Schools,” noting further that the two decisions “changed the way indigenous offenders are sentenced, though not necessarily the result.”³⁵ At least three courts have cited Ipeelee’s citation of Rudin’s query that “[i]f Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today?”³⁶ Several courts have discussed the existence of “crisis” without citing either case. ³⁷

Some courts have discussed the problem at length. In R v Kokopenace, the Ontario Court of Appeal referenced years of efforts on the part of the judiciary to address the “crisis.”³⁸ In R v Elliott, the British Columbia Provincial Court emphasized the need to adopt a restorative approach to sentencing to “avert the crisis.”³⁹ Some courts have also used “crisis” to describe Indigenous communities, for example, identifying certain communities as being “in crisis,”⁴⁰ or as immersed in “crisis.”⁴¹ Many have done so in a lamenting tone, characterizing the “crisis” as “tragic”⁴² or “sad,”⁴³ or as a reality that should “shame us and should make us weep and do better.”⁴⁴

Courts have also deployed the language of “crisis” outside the sentencing context, on the rationale that Gladue’s “underlying philosophy bears on other aspects of the interaction between Aboriginal peoples and the justice system.”⁴⁵ As the Ontario Court of Appeal explained in R v Kokopenace, such an approach was implicitly endorsed in Gladue and Ipeelee in their recognition that “sentencing innovation alone would not solve the greater alienation of Aboriginal people from the criminal justice system.”⁴⁶ The most prominent example arises in United States of America v Leonard, a judicial review of extradition orders for two Indigenous men facing drug charges in the United States.⁴⁷ There, Sharpe JA noted that the “tragic personal and family histories and current circumstances of both applicants closely correspond with many of the systemic factors identified by the Supreme Court in R v Gladue… as requiring special consideration on account of the crisis in the Canadian criminal justice system arising from the disproportionate incidence of incarceration amongst Aboriginal peoples.”⁴⁸

Ultimately concluding that Gladue could be applied, Sharpe JA explained that “insisting that Aboriginal defendants be treated as if they were exactly the same as non-Aboriginal defendants will only perpetuate the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of Aboriginals in our prisons.”⁴⁹ This statement has been cited with frequency by subsequent courts.⁵⁰ Other courts have applied the language of “crisis” in cases involving curative discharge,⁵¹ sentencing for civil contempt,⁵² orders that Indigenous children be made Crown wards without access,⁵³ dispositions of persons found not criminally responsible on account of mental disorder,⁵⁴ or sentencing of Indigenous youth.⁵⁵

The language of “crisis” also appears in Inglis v British Columbia,⁵⁶ a constitutional challenge to the cancellation of the “mother-baby” program at Alouette Correctional Centre for Women. The program allowed new mothers, many of whom were Indigenous, to maintain contact with their infants while serving time in provincial jail. In this case, Ross J referenced “crisis” as a relevant factor in supporting the conclusion that the cancellation of the program violated the Charter’s equality rights provision. In R v Cake, a case involving a publication ban application following a guilty plea to obstructing justice, the Ontario Superior Court of Justice stated that Gladue and Ipeelee “speak directly to larger systemic issues impacting aboriginal people.”⁵⁷ The Court referenced the “crisis” within the administration of justice in Ontario, citing Frank Iacobucci’s 2013 report First Nations Representations on Ontario Juries, which I discuss below.⁵⁸ In Law Society of Upper Canada v Robinson, the plaintiff was disciplined by the Law Society of Upper Canada for engaging in conduct unbecoming of a lawyer. The plaintiff challenged the penalty, on grounds that the hearing panel failed to appreciate his Indigeneity and related circumstances. After citing Leonard, Gladue, and Ipeelee, the panel concluded that such questions of discipline are “unconnected to incarceration or the crisis identified in Gladue.”⁵⁹

The Supreme Court of Canada deployed the language of crisis outside the sentencing context on at least two occasions. First, in R v Kokopenace, the Supreme Court overturned the Ontario Court of Appeal’s decision that a jury roll had inadequately ensured representative inclusion of Aboriginal on-reserve residents.⁶⁰ While neither majority nor dissent deployed the language of “crisis,” Karakatsanis J, in her partially concurring opinion, stated that “addressing the disengagement of Aboriginal peoples from the jury system is an important step in addressing the larger web of problems—described …[in] the Iacobucci Report as a crisis.”⁶¹ Second, in Sauvé v Canada, a Charter challenge to the prisoner disenfranchisement provisions of the Voting Act,⁶² then Chief Justice McLachlin, writing for the majority in a five–four split, referenced the “crisis” of Indigenous incarceration. Cautioning that the disenfranchisement provisions would have a “silencing” effect on Indigenous prisoners, McLachlin CJC struck down the law.⁶³ Gonthier J, writing in dissent, also referenced the “crisis” of Indigenous incarceration but with a different effect. Upholding the disenfranchisement provisions, Gonthier J maintained that the law did not target Indigenous peoples. “If there is a problem with the overrepresentation of Aboriginal people in our criminal justice system and prisons,” Gonthier J explained, that problem must be addressed through sentencing and by “addressing some of the root causes of the overrepresentation identified by this Court in Gladue.”⁶⁴

Numerous reports and commissions of inquiry have also documented, addressed, and critiqued the mass imprisonment of Indigenous people through the language of “crisis.”⁶⁵ In its 2002–2003 Annual Report, for example, the Office of the Correctional Investigator concluded, “disproportionate barriers to safe, timely release of aboriginal offenders constitute a continuing crisis and an embarrassment.”⁶⁶ A 2005 report titled Aboriginal Peoples and the Criminal Justice System emphasized that Indigenous overrepresentation “is one of the clearest markers of what the Supreme Court of Canada has referred to as ‘a crisis in the Canadian justice system.’”⁶⁷ In a 2006 address to Parliament, in his capacity as the Federal Correctional Investigator, Howard Sapers emphasized the “growing crisis regarding Aboriginal inmates,” identifying this as “Canada’s national disgrace.”⁶⁸ In a 2009 report titled Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections, the Office of the Correctional Investigator urged the need for urgent action and expeditious mobilization to reduce the gap between Indigenous and non-Indigenous offenders, cautioning that absent such efforts the “situation may devolve into crisis.”⁶⁹ A 2012 report commissioned by Public Safety Canada identified the incarceration of Indigenous women as “nothing short of a crisis” noting further that “it has been a crisis for quite some time now.”⁷⁰

In 2013, former Supreme Court Justice Frank Iacobucci released an independent report, First Nations Representation on Ontario Juries, on the lack of representation of First Nations peoples living in reserve communities on Ontario juries.⁷¹ Iacobucci arrived at a series of scathing conclusions, stating that: “the justice system as it relates to First Nations peoples… is in crisis.”⁷² He further stated that “relations between the justice system and First Nations have reached the crisis stage,” and urged action, stating that a continuation of the status quo will only “aggravate what is already a serious situation” and diminish any “hope of true reconciliation.”⁷³ Citing the “tragic history of Aboriginal people, with many examples of mistreatment, lack of respect, unsound policies, and most importantly a lack of mutual trust,” Iacobucci called for systemic reform, emphasizing the need for a “top down approach for the Attorney General to seek the candid advice and wisdom of those directly affected.”⁷⁴ In 2014, in its report titled Over-Represented and Over-Classified: Crisis of Aboriginal Women in Prison,⁷⁵ the Ontario Women’s Justice Network stated that the incarceration of Indigenous women in federal corrections constitutes a “crisis.”⁷⁶ These accounts represent only a sampling; many more such reports have been issued to date.⁷⁷

With the release of each report, media outlets have discussed, analyzed, and bemoaned the existence of “crisis.” In 2012, the release of Marginalized prompted The Globe and Mail headline “Tory Crime Agenda Fueling ‘Crisis’ Of Aboriginal Women In Prison,”⁷⁸ and CBC News headline “New Report Describes Growing ‘Crisis’ For Aboriginal Women.”⁷⁹ After the release of Iacobucci’s 2012 report, the language of “crisis” again appears in the headlines, with the Toronto Star reporting “Ontario’s Justice System In A ‘Crisis’ For Aboriginals,”⁸⁰ and numerous other outlets reporting the same. Iacobucci also used the language of “crisis” when engaging with media after the report’s release, stating: “I have called it a crisis, a serious crisis. And I am not an alarmist. We are talking about the lives and liberties of people. I don’t know if you can get more of an important issue subject than that.”⁸¹

Even when reports did not utilize the language of “crisis,” media accounts often have. Soon after the release of Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act, ⁸² for example, The Globe and Mail, Toronto Star, and CTV News used the language of “crisis” to describe its results.⁸³ Media outlets have also used the language of “crisis” to describe the lack of Gladue report writers,⁸⁴ or ongoing disparities in incarceration rates.⁸⁵ Add to this the editorials and opinion pieces that have lamented the existence of “crisis” in Canada’s legal system and urged the need for reform.⁸⁶

In each of these decisions, reports, and media pieces, the language of “crisis” functions differently. In some, the language carries little rhetorical value, being used as descriptor. In others, the language conveys outrage or horror, serving to communicate disapproval or condemnation. In others still, the language of “crisis” forms part of what Sarah Clark refers to as “shock and awe” terminology, namely, the deployment of discourses, policies, and practices that perpetuate statistics of shock and horror to justify colonial control and intervention.⁸⁷ In most, as Vicki Chartrand’s analysis suggests, Indigenous experiences are “symptomized as an unfortunate but inevitable consequence, while the structural and systemic manners in which Indigenous people continue to be colonized are rarely explored.”⁸⁸ In such representations, the language of “crisis” operates to imply an exceptional, rather than normal, operation of colonialism. In some, however, the language of “crisis” is deployed in good faith, and is central to, and formative of, the analysis or conclusion as reached. In these representations, the language helps expose the operation of colonialism in the production of “crisis.” While each representation reads and functions differently, the language of “crisis” weaves them together. Whichever way they are analyzed, it is clear that, as regards Indigenous incarceration, the language of “crisis” has taken hold.

Crisis Persists

In Gladue’s aftermath, Indigenous incarceration has not only increased, it has skyrocketed. The structures of inequality and alienation that Gladue and Ipeelee criticized are as embedded in the Canadian legal system now as they were then. At the risk of reinforcing the same rhetorical strategy I critique above, namely, the focus on Indigenous imprisonment as over rather than as mass—I briefly turn to some statistics. I do so mindful of Nichol’s reminder that in the context of “ongoing occupation, usurpation, dispossession, and ecological devastation, no level of representation in one of the central apparatuses of state control and formalized violence would be proportionate.”⁸⁹

A brief survey of the numbers is nonetheless important to highlight the intensity of the problem. As of 2017, Indigenous people made up less than 5% of the Canadian population, but comprised 26.4% of the federal inmate population. The Office of the Correctional Investigator has reported an increase in the federal incarceration rate of Indigenous peoples every single year over the last three decades.⁹⁰ Between 2007 and 2016, the Indigenous prison population increased by 39%. In the period between 2007–2008 and 2016–2017, the rate of incarceration for Indigenous women increased by 60%.⁹¹ Calculated differently, in the period between 2001–2002 and 2011–2012, the rate of incarcerated Indigenous women increased by 109%.⁹²

The gap between Indigenous and non-Indigenous inmates continues to widen in every aspect of corrections. Year after year, the Correctional Investigator reports that Indigenous people are more likely to be subject to the use of force in corrections; are less likely to receive parole, and are more likely to return to prison on revocation of parole.⁹³ Indigenous people are more likely to be classified as high-risk and therefore incarcerated in maximum-security institutions.⁹⁴ For example, in 2017, while Indigenous women represented 37% of all women behind bars, they made up 50% of maximum-security classifications.⁹⁵ In part due to this over classification, Indigenous people are also more likely to be segregated in solitary confinement. As of March 31, 2017, for example, there were 414 offenders in solitary confinement across federal institutions, and 151 of them (36.5%) were Indigenous. The percentage of segregated Indigenous inmates increased by 31% between 2005 and 2015, compared with a growth of 1.9% for non-Indigenous inmates.⁹⁶ Indigenous women comprise 50% of placements in solitary confinement.⁹⁷ By all accounts, the Corrections Services of Canada have not effectively considered Indigenous social histories to reduce the impact of solitary confinement on Indigenous inmates.⁹⁸ The extreme rates of classification and isolation also contribute to higher rates of violence and harm among Indigenous inmates, both to self and to others.⁹⁹

The above-cited figures only account for incarceration rates of Indigenous peoples in Federal corrections, for sentences of two years or more. At the provincial level, the figures are just as stark. The 2014 statistics show that in Saskatchewan, the rate of Indigenous incarceration was 77% (up from 61% in 1978), in Manitoba the rate was 76% (up from 50% in 1978), in British Columbia the rate was 34% (up from 15% in 1978), and in Newfoundland and Labrador the rate was 32% (up from 3% in 1978).¹⁰⁰ While Ontario’s 12% incarceration rate appears relatively low, given the high population rates in Ontario, the province accounts for the second-highest total number of Indigenous admissions into custody, representing roughly 3,000 individuals.¹⁰¹ In Nunavut, the Indigenous incarceration rate is 100% in every year in which statistics were kept. While the rate has remained the same, the numbers behind it have increased, rising from an average of 290 from 2001 to 2005 to 470 between 2011 and 2014.¹⁰² Indigenous peoples are also grossly over-represented in the remand population. In 2014–2015, Indigenous people represented 25% of remand admissions, a sharp increase from the 16% rate reported one decade prior.¹⁰³ Every aspect of corrections records similar disparities. As Julian Roberts and Andrew Reid conclude, when it comes to Indigenous incarceration: “every picture tells the same story.”¹⁰⁴ The “crisis,” as it were, persists.

The Limits of Crisis

The above-cited figures are devastating. To use the language of Gladue, they truly are “stark,” “drastic,” and revealing of a “sad and pressing social problem.”¹⁰⁵ But do they represent a crisis? No. However effective the language of “crisis” may be in capturing the urgency and severity of Indigenous mass imprisonment, it has proven ineffective. So many legal actors have lamented the existence of “crisis” for so many years now that the term has lost its value. In Minding the Law, Anthony Amsterdam and Jerome Bruner warn against the dulling effect of repetition, stating: “when our ways of conceiving of things become routine… they disappear from consciousness and we cease to know that we are thinking in a certain way or why we are doing so.”¹⁰⁶ With every repetition, the language of “crisis” has not only dulled the severity of the problem, it has also normalized its existence, and too often served as a substitute for action.

On a rhetorical level, the language of “crisis” is both inappropriate and misleading, in that crises, by definition, do not persist. The Oxford English Dictionary defines crisis as a “time of intense difficulty or danger; time when a difficult or important decision must be made,” while the thesaurus also offers: “critical point”; “turning point”; “crossroads”; “crux”; “culmination”; “moment of truth”; “point of no return.”¹⁰⁷ The Merriam-Webster dictionary defines crisis as “an unstable or crucial time or state of affairs in which a decisive change is impending; a situation that has reached a critical phase.”¹⁰⁸ The Merriam-Webster thesaurus also offers “boiling point”; “breaking point”; “conjecture”; “crunch time”; “juncture.”¹⁰⁹ Common to these definitions is some measure of transience, and a tipping point. In the case of Indigenous mass imprisonment, neither holds true. Indigenous people have been imprisoned in mass numbers for decades, long before Gladue. The problem has not reached its highest point, and shows no signs of decisive change, turning point, culmination, or juncture.

The issue here is not simply that of inadequate definition but, rather, of a fundamental mischaracterization. The language of “crisis” suggests that Indigenous mass imprisonment is somehow exceptional or temporary, as crises are. Whereas in fact, like colonialism, Indigenous mass imprisonment is embedded in the Canadian legal system, it is an ordinary and predictable by-product of systemic and systematized colonial violence. As far back as 1999, the Supreme Court of Canada stated that reports about Indigenous incarceration rates were “disturbingly common.”¹¹⁰ Twenty years out, we have come to expect the persistence of “crisis.” Part and parcel of the fabric of the Canadian legal system, Indigenous mass imprisonment, like the colonial structures that produce it, is “here to stay.”¹¹¹

Writing of crisis as political discourse, Jessica Lawrence explains that a distinguishing feature of the language of crisis is its call for action.¹¹² Crisis, she maintains, demands a response or solution.¹¹³ To speak of crisis, then, “is to evoke a moment in which decisions must be made; a moment of political opportunity.”¹¹⁴ Colin Hay similarly speaks of crisis as a moment of transformation, “in which a decisive intervention can and perhaps must be made.”¹¹⁵ Ulrich Beck maintains that a defining feature of the language of crisis is the impression that crisis can be overcome, or that reverting to a pre-crisis state is possible.¹¹⁶ But the persistence of Indigenous mass imprisonment reveals that reverting to a pre-crisis state is neither viable nor realistic. To move away from crisis would require much more than a change in sentencing protocol; it would require a dismantling of the central tenets of the colonial state. As Chartrand writes: “Without changing the underlying colonial relationship, we not only ignore the ways that colonialism continues to exist today; we also continue to offer colonizing arrangements as part of the remedy.”¹¹⁷ Gladue and Ipeelee may register as issuing a call to arms or ushering in decisive change, but in fact, both only offer the same colonial arrangements they criticize.

Nichols’ analysis of the Canadian legal system’s flawed understanding of Indigenous mass imprisonment is instructive here. As Nichols writes, critiques of mass incarceration have “insufficiently attended to the centrality of colonialism to the origins, scope, scale, and legitimation techniques of carceral power in North America.”¹¹⁸ The depoliticized, dehistoricized detachment of Indigenous mass incarceration from the “longer colonial history of the state itself” has enabled it to be routinized, bureaucratized, and thus more “effectively and smoothly enacted.”¹¹⁹ Ultimately, this approach has failed to meaningfully consider what Nichols identifies as the quintessentially territorial foundation of prison expansion.¹²⁰ And indeed, while both Gladue and Ipeelee make inroads in recognizing the systemic prejudices and widespread racism of the Canadian legal system—with Ipeelee also identifying colonialism and the legacy of residential schools—neither decision assumes responsibility for the production of Indigenous mass imprisonment as colonial violence. Even at their most progressive and laudable moments, and even as they criticize the Canadian legal system, both turn to that same system to resolve the problem.¹²¹ They do so despite the fact that the legal system is responsible for producing not just Indigenous incarceration and alienation, but also persistent and normalized trauma, violence, death, and harm.¹²²

In Scott Veitch’s analysis, this dual move is common to legal institutions attempting to reconcile large-scale suffering.¹²³ Such institutions, Veitch posits, operate simultaneously in two contradicting ways. On one hand, they organize responsibility for suffering by holding legal actors responsible for harm. Gladue and Ipeelee do this well. But on the other hand, and at the same time, they also distance responsibility by facilitating its dispersals and disavowal. In Veitch’s analysis, when legal institutions attribute responsibility for harms in ways that fail to respond to the conditions on which they operate—as Gladue and Ipeelee do—the effect is to distance responsibility for harm. Understanding this simultaneity, Veitch maintains, is central to understanding how seemingly neutral and well-meaning legal actors contribute to “normalizing the production of suffering.”¹²⁴

Christie’s analysis of Canadian courts’ unwavering commitment to colonial narratives and colonial frameworks helps to make sense of this approach. Analyzing decisions involving Aboriginal rights and title, Christie identifies several moments at which the courts attempt to make sense “of the exercise of unbridled colonial power.”¹²⁵ In grappling with the exercise of state power, Christie demonstrates, the courts simultaneously justify and maintain its authority.¹²⁶ Bringing Christie’s insights to bear on Gladue and Ipeelee reveals the Court deploying a method of analysis that partakes in the proliferation of irresponsibility that Veitch identifies, and operates to reinforce the same “colonial conceptual framework.”¹²⁷ At the very moment they assign responsibility to the Canadian legal system for the production of “crisis,” Gladue and Ipeelee proliferate irresponsibility by turning to that same system to overcome the conditions it has created and continues to enforce. Veitch calls this the “transference” of responsibility,¹²⁸ that is, assigning responsibility to an institution that, by the Court’s own admission, is incapable of meaningfully assuming that responsibility. The effect is to disappear responsibility, and to normalize harm.

Where then, can the Canadian legal system turn? How can it come to terms with its own role in perpetuating the “crisis” it so adamantly disavows? Writing in a different setting, Johnny Mack urges a shift away from what he identifies as the normalized and un-reflexive absorption of colonial stories and perspectives.¹²⁹ A shift away from the language of “crisis” could reorient the legal understanding of Indigenous mass incarceration in the dominant Canadian legal discourse. In “The Crisis in Education,” Hannah Arendt writes of crisis as opportunity. For Arendt, crisis does not invite its critic to indulge in outrage, rather, it compels the critic “to explore and inquire into whatever has been laid bare of the essence of the matter.”¹³⁰ This task, she maintains, requires tearing away façades and prejudices, and trying to see things as they are.¹³¹ To do otherwise is to indulge in crisis and, in Arendt’s analysis, turn crisis into disaster. “Simple, unreflective perseverance,” she writes, “whether it be pressing forward in the crisis or adhering to the routine that blandly believes the crisis will not engulf its particular sphere of life, can only, because it surrenders to the course of time, lead to ruin.”¹³² To respond to crisis with “performed judgments”—as Gladue and Ipeelee do—is to sharpen the crisis and, in Arendt’s words, to forfeit the “opportunity for reflection it provides.”¹³³

What opportunity for reflection does Indigenous mass imprisonment provide? What, to further echo Arendt’s words, is laid bare by the essence of this matter? At issue here is not only poor word choice but, far more profoundly, a deep-seated defensive anxiety that shapes the Canadian legal understanding of Indigenous mass imprisonment. This anxiety finds expression in and through the language of “crisis.” Its use operates to distance and disappear responsibility, reinforce colonial structures, and intensify and perpetuate suffering.

Moving away from the language of “crisis” will do little to dismantle the colonial structures that produce Indigenous mass imprisonment. A surface adjustment to the discourse that leaves the substantive situation untouched will only cause more harm. Such a shift will not decrease the relentless intensification of Indigenous incarceration, nor will it dismantle the colonial structures at its core. But a meaningful shift in the understanding of Indigenous mass incarceration—and the state’s central role in its production—might help move away from the unquestioned acceptance of colonial orderings. It might help instil responsibility rather than disappear it, and drive towards a more honest understanding of Indigenous mass imprisonment as colonial violence. As Leanne Betasamosake Simpson powerfully argues, the task of the colonial state is not to “save” Indigenous people, but to restructure itself in a way that does not continue to injure Indigenous people and dispossess their lands.¹³⁴ A shift away from the language of crisis might be a small step in this restructuring. At the very least, it might help unpack the defensive anxiety that haunts this field of law and place the legal understanding of Indigenous mass imprisonment on more candid, stable ground.

Conclusions

A few years back I collaborated on a case involving the treatment of incarcerated women, most of whom were Indigenous. I advocated for the use of the language of “crisis” in the submissions. As I maintained then, it was important for the court to situate the claim in the broader context of Indigenous mass imprisonment. The language of “crisis,” I argued, would impress upon the court the urgency and severity of the matter, and drive towards an effective remedy. The “crisis” argument proved persuasive and informed the court’s reasoning. The court issued the remedy I hoped for, one that meaningfully benefits many incarcerated women.

Looking back, the language of “crisis” was not necessary for the argument to succeed. This language did not advance the court’s understanding, nor yield a uniquely effective remedy. Rather, by deploying the language, I partook in the tacit, normalized absorption of colonial stories and perspectives that Mack so persuasively criticizes.¹³⁵ Immersed in those narratives, my work on that case invited the court to situate its analysis in a quintessentially colonial frame. Upon reflection, it might have been more persuasive to call the court’s attention to the structural manifestations and lived experience of colonial violence in a more pointed way. Maybe the better approach would have been to seek a remedy designed to disrupt the structures that enable that violence, or to draw the court’s attention to Indigenous mass incarceration as ongoing cultural and territorial dispossession. A different argument, a different approach, a different understanding might have generated an effective remedy without contributing to the harmful mischaracterizations I critique above.

Perhaps a different approach would have opened up other possibilities for more effective remedies, more meaningful assignments of legal responsibility, or for resistance, defiance, and opposition. As Jarrett Martineau and Eric Ritskes write, one of colonialism’s most pervasive harms is in conditioning possibility—in ordering the world to limit possibility and normalize the un-reflexive absorption of colonial violence as settled and sensible.¹³⁶ As deployed over the last twenty years, and analyzed against the persistent rise in Indigenous mass imprisonment, the language of “crisis” has done just that. Rather than reveal the violence of colonialism, it tacitly obscures it; rather than disrupt the authority of colonialism, it maintains its force; rather than entrench responsibility, it helps disperse irresponsibility; rather than demand change, it invites complacency. To continue to indulge in this language, rather than rethink its use, is to perpetuate Indigenous mass imprisonment and to reinforce the colonial structures that enable it to thrive.