CRIME | Racist laws
On May 7, 1962, not far from Yellowknife airport in the Northwest Territories, the respondent was arrested by a constable of the Royal Canadian Mounted Police shortly after he had shot a female mallard duck. The respondent admitted shooting the duck but stated that he did not know that it was illegal to shoot ducks out of season.
‘The respondent is an Indian... On this day he was on his way out to the bush to see if he was able to do his customary work. He had taken his tent, gun and muskrat traps and was planning to trap muskrats. He expected to be away two or three weeks. He had taken no food, expecting to shoot game. He shot the duck for food.’ (Saskatchewan Law Review)
In this case the ‘respondent’ was duly convicted by the Supreme Court of Canada for contravening the Migratory Birds Convent Act A simple matter - the law is the law. But it is a law which clearly affects an Indian much more than it does a white Canadian.
To white Canadians, underdevelopment is a picture on a TV screen bounced via satellite from the other side of the world. Too often we fail to focus on that which is nearest. For the most part Canada’s own struggling Third World - the world of its indigenous peoples - goes unnoticed and unrecognized. Our institutions, including the criminal justice system, are founded in this state of blindness,
Canadian indigenous people live within the same conditions of economic and social dislocation as those who live in underdeveloped nations. They are the Indians, the Metis and the northern Inuit Together these groups of people form the poorest segment of Canadian society.
Although native people form only three and a half per cent of the national population, they represent nine per cent of the prison population. In the northern and prairie regions the figure is closer to 40 per cent. In Saskatchewan, a prairie province, indigenous peoples often exceed 50 per cent of those imprisoned or detained in institutions.
For indigenous women and youths - further marginalized within an unequal society - the statistics are even grimmer. At Saskatchewan’s Pine Grove correctional facility this year, 75 per cent of the inmates are indigenous women. And 87 per cent of these women are young, aged 16 to 35. At the Regina Correctional Centre, also in Saskatchewan, indigenous male youths form 90 per cent of the population.
The statistics are astounding, but not confounding. They are the natural result of a justice system which is blind to the needs - indeed the very existence - of nations within a nation. The separate and underdeveloped nature of indigenous economies creates much of the groundwork for imprisonment under Canadian law. A full two-thirds of indigenous offenders, for example, are in jail simply because they are unable to pay court fines.
The majority of offences leading to incarceration are not serious in nature. They are the type of offence - such as a first-time conviction for driving while intoxicated - which a middle-class Canadian can walk away from with the signing of a cheque and suspended driving privileges. Meanwhile, the indigenous offender, unable to pay, goes to jail.
In the cities, a lack of adequate housing places many indigenous people in the streets. Here, the law changes. Acts which are acceptable in a private residence, such as intoxication, become a crime on the streets. As native people increasingly use alcohol as a method of dealing with grinding poverty, and as economic dislocation has forced more of them into the cities, it is the public intoxication laws which increasingly criminalize them.
Finally, modes of survival are often criminal acts in themselves. Prostitution is a prime example. For the Indian woman leaving oppressive conditions on the Reserve, prostitution is the only ‘allowable’ place given her in white urban society. The rate of indigenous prostitutes is high, and across Canada soliciting sex is illegal.
But it is not just that the laws passed affect native people differently - the courts themselves are steeped in the economics of under-development. Nationally, 46 per cent of young offenders are let off with a warning; for Indian adolescents, the rate is 15 per cent. One in three whites are released on parole; one in eight Indians are given the same treatment Likewise, probation is given less often to Indians and other indigenous people.
Up to now, attempts at redressing the situation have concentrated largely on the justice system itself. Several provinces have developed native courtworker projects to improve legal representation for offenders, and to demystify the language and processes of the courts. Governments also favour cross-cultural and legal education, combined with the affirmative action recruitment of indigenous police officers. There are as well a growing number of Fine Options programs which trade fine payments for community service. Yet none of these measures have reversed the mounting discrimination faced by native peoples within Canadian law.
Why? Before the courts, the individual is automatically wedded to a colonial society - a society offering few of its resources to the indigenous offender. Generally, indigenous people must have the support of the white social welfare system to be considered eligible for release, and that support is usually lacking. Prisoners are usually evaluated for release by focussing on income, employment and education - the parole board ignores support networks within indigenous families and communities - ensuring that the results are unfair.
Recently, research for the Ontario Native Council on Justice concluded, ‘There will be a change in the ratio of natives to non-natives inside the prison when there is a fundamental change in their relationship outside.’ And, as yet, very little is being done to change that relationship.
Trish Elliott is a freelance writer based in Saskatchewan. She gratefully acknowledges Law and Order for Canada’s Indigenous People as the source of many of the statistics and concepts presented in this article.