Manitoba needs to make changes to address overrepresentation of Indigenous people in jails, experts say

A legal principle intended to ensure systemic factors that impact the background of Indigenous people are considered when they're involved in the justice system is not helping to address their overrepresentation in Manitoba's jails, legal scholars say.

"We are still the worst of the worst in the country" in terms of that overrepresentation, said Marc Kruse, a lawyer and the director of Indigenous legal studies at the University of Manitoba's Robson Hall law school.

"As long as we don't make any changes, we'll still be the largest representation of incarcerated Indigenous peoples."

Under the Supreme Court of Canada's 1999 Gladue decision, sentencing judges must consider systemic impacts on Indigenous people who have committed a crime. The decision also encourages "recourse to a restorative approach to sentencing."

In 2021-22, people who identified as Indigenous accounted for 77 per cent of adult admissions to custody in Manitoba, according to Statistics Canada. That's despite the fact Indigenous people made up just 18 per cent of Manitoba's population in 2021. 

Kruse says courts need to think of "crime and punishment in a different framing" that's more aligned with Indigenous law.

"We need to train our judges and our lawyers what is an Indigenous perspective, and really what restorative justice is, because it's not really being exhibited in our case law," said Kruse.

A spokesperson for the province said in principle, all offences are potentially eligible for restorative justice — a process which focuses on the rehabilitation of an offender and reconciliation with the victims, and less on punishment.

"However, it is rare to divert cases involving significant violence or that are otherwise very serious," the spokesperson said.

In violent crimes,"restorative justice would likely only be considered as part of an overall sentencing plan."

Manitoba needs Gladue report changes: experts

Quinn Saretsky, a consultant who has worked for more than 15 years with people who have interacted with the justice system, says there have been cases in Manitoba where Gladue factors, such as past trauma as a result of colonialism, weren't considered at all when it comes to serious or violent offences.

"It's just really frustrating that … people have to be warehoused in an institution and have these really traumatic experiences completely rejected or discounted as contributing to, you know, why they've ended up in a system," Saretsky said.

"When people are coming into contact with any system … you can usually look at circumstances, and it's all linked back to colonization and what it's done to our communities."

Saretsky has written around 100 Gladue reports, which are meant to provide a court with information to consider in sentencing on how the effects of colonization specifically affect an Indigenous individual.

But many Indigenous people in Manitoba charged with a crime can't access a Gladue report due to funding and resource constraints, she said.

Instead, probation officers will often include Gladue factors in pre-sentence reports, which frame those factors in terms of a person's risk to re-offend, without analyzing how colonization has led to criminal activity as a result of institutional racism, said Saretsky.

Vicki Chartrand, who teaches with the University of Manitoba's department of sociology and criminology, says Indigenous people are overrepresented "at the highest, most punitive level of every facet of the criminal justice system, from policing to over-policing to policing deaths to the courts and sentencing to corrections."

But "we never look at how the system itself is implicated in creating that criminal activity, because there's no other choice, or that violence is a part of survival, or whatever that case may be," she said.

But a pre-sentence report with Gladue factors isn't the same as a Gladue report, says Peter Kingsley, executive director of Legal Aid Manitoba.

"Really, the function of a Gladue report is to give a judge information that helps them understand how the effects of colonization on Indigenous people specifically affects the particular individual, which is very different," said Kingsley.

He says combining a pre-sentence report with Gladue factors isn't something that's done in other parts of the country. 

"To my knowledge, we're the only province that has probation services doing both the Gladue component and the pre-sentence report," he said. "Most provinces do separate them out."

In 2023, the Southern Chiefs' Organization, which represents 32 First Nations in southern Manitoba, was one of four organizations that took over the First Nation court worker program from the province. That program helps provide Indigenous people with culturally relevant supports during and after the court process.

SCO has three First Nation court workers located across southern Manitoba, according to the organization's website, and began the process of hiring Gladue report writers early this year through a pilot project.

Gladue reports serve an important purpose, said Kingsley.

"The more information you can get before the judge, the better it is going to be for the client," he said.

"The hope is that it [a Gladue report] is going to result in a sentence which takes into account the controllable factors by the client and the societal factors which may have pushed the client one way or another."