Lisa Kerr, Assistant Professor, Queen’s University Faculty of Law
The TRC Calls to Action arrived in the year I began my first term of law teaching at Queen’s. Recommendation 28 speaks to the need for law schools to teach the history of Indigenous people and the law, including understanding the history of residential schools and their legacy. As a newly-appointed professor teaching Criminal Law, this recommendation called on me to address the effects of this legacy on Indigenous people in the justice system and in incarceration.
With that call to action, and with Recommendations 30, 31, and 32 specifically imploring our society to eliminate overrepresentation of Indigenous people in custody, improve access to community sanctions as a realistic alternative to imprisonment, develop responses to the underlying causes of offending, and amend the Criminal Code to give trial judges the ability to depart from mandatory minimum sentences and make greater use of conditional sentences, my work in developing a first year Criminal Law class consistent with these goals was cut out for me.
Next semester, when I teach Sentencing and Imprisonment, an upper level course, these topics will be a focal point of the course. But first year course planning presented more of a challenge, as both sentencing and a wider sociological lens often do not find much space in the first year curriculum. The subject matter of first year tends to focus on the “front end” of the criminal justice system. Questions of guilt and innocence are often assessed in isolation from the root causes of crime and the question of the state’s capacity to impose fair, productive and truly proportionate punishment. What’s more, I knew that the task of teaching the black letter law alone could be challenge enough in my first year.
I planned to follow the syllabus of my experienced colleagues Don Stuart and Lisa Dufraimont, who have generously shown me the ropes. Not surprisingly, I discovered their course plans to be demanding, comprehensive, and full of tricky issues and complex doctrine. I knew that such experienced teachers would be able to move through the material elegantly, weaving in concerns about the impact of criminal justice on particular populations and embedding critiques of misguided legislative approaches into black letter lectures. But would I be able to do that? As I contemplated both absorbing and conveying this rich course, I knew I was at far greater risk of getting bogged down. I worried that I might become overly focused on the technical aspects – which students seem prone to doing as well – and ultimately I could fail to linger on the profound questions of fairness and the lens of social justice that can be applied to any criminal law case and that must be developed so as pursue the TRC recommendations. My awesome teaching mentor Darryl Robinson helped me think through these and other teaching challenges each week in the fall term. Happily, I have many years ahead to keep contemplating the question of optimal balance in the first year curriculum between law’s context and its formal rules.
In contemplating a concrete strategy to follow the TRC recommendations relevant to my class, I remembered how Michael Jackson at UBC always taught sentencing first. So I brought Gladue and Ipeelee to the beginning of the course. These are the cases where the Supreme Court of Canada directs trial judges to make meaningful use of s. 718.2(e) of the Criminal Code, setting out a number of guiding principles to ensure that sanctions other than imprisonment should always be considered for offenders, “with particular attention to the circumstances of Aboriginal offenders.” We talked in class about how this is a uniquely Canadian approach. I argued that it is a credit to our legal system that we are willing to acknowledge something about our history of colonialism and racism at the critical moment of responding to a criminal offence. I noted that Americans are always surprised to hear of this approach, invariably replying “but that’s unconstitutional – that’s a race-based distinction.” We talked about the value of Canada’s commitment to substantive equality and our ability to distinguish between ameliorative and harmful legal distinctions.
To introduce and contextualize these cases, my class discussed the incarceration rate for Indigenous adults in Canada, which is about 10 times higher than the incarceration rate of non-Indigenous adults. I put that statistic in comparative context, noting that this is in fact significantly worse than the overrepresentation of black people in the U.S. system (albeit on a far different scale). The comparison is often surprising to Canadian audiences.
We also discussed how legal rules aimed at ameliorating a social problem like systemic discrimination don’t always have intended immediate effects – a good general lesson for first year students. Indeed, the over-representation of Indigenous people in Canada’s correctional system continued to grow in the last decade, despite Gladue. The current levels of growth are most alarming: since 2000-01, the federal Indigenous inmate population has increased by 56.2%, and the overall representation rate in the inmate population has increased from 17.0% in 2000-01 to 23.2% today. Looking at the years since 2005-06, there has been a 43.5% increase in the federal Indigenous inmate population, compared to a 9.6% increase in non-Indigenous inmates. Focusing on Indigenous women, the problem is even worse. They represent 33.6% of all federally sentenced women in Canada but are only 2% of the Canadian population.
Rates of incarceration are not the only important topic. Our class also discussed the substance of incarceration: the experience and quality of punishment matters too. Here, the evidence is clear that Indigenous prisoners often have more difficult prison experiences. Both Indigenous men and women are routinely classified as higher risk, meaning they are overrepresented in segregation and maximum security populations and have less access to early release. We talked about the limits of an ameliorative sentencing rule to address these institutional dynamics. This also gave us a chance to think about the real meaning of a prison sentence. Too often, the discourse of criminal law alludes to the justifications of ‘deterrence’ or ‘retribution’ without linking those concepts up to a particular institutional regime. Without attention to what the criminal justice system actually delivers to offenders – long after a decision about guilt – these justificatory concepts are little more than empty rhetoric.
In sum, frontloading Gladue and Ipeelee allowed us to ask some big questions about the legitimacy of criminal law, not only for Indigenous people but for the entire system. And it strikes me that pursuing reconciliation in these ways in the first year Criminal Law syllabus improves the scope and themes of the course overall.