Indigenous Peoples and the Justice System
Indigenous Peoples and the Justice System
A note before you begin: This lesson covers overrepresentation of Indigenous people in Canada's prisons, the 2016 death of Colten Boushie, and racism inside the justice system. If you or someone in your family has been affected by incarceration or by violence, some of this content may be difficult. You do not have to share personal experiences to complete this lesson. If you need to talk to someone, you can reach out to your teacher at your daily check-in, or contact the Hope for Wellness Help Line anytime at 1-855-242-3310 (also available by chat at hopeforwellness.ca) or the National Indian Residential School Crisis Line at 1-866-925-4419.
Learning Goal: I can explain why Indigenous people in Saskatchewan are incarcerated at a far higher rate than non-Indigenous people. I can describe how Gladue rights and FHQ Tribal Council's restorative justice program answer that reality in two different ways.
Statistics Canada released new numbers on January 14, 2026, comparing incarceration rates across six provinces: Prince Edward Island, Nova Scotia, Ontario, Saskatchewan, Alberta, and British Columbia. Indigenous adults made up 33.2 percent of the average daily jail and prison population in those provinces, while they made up 4.3 percent of the general adult population. On an average day, 89 out of every 10,000 Indigenous adults were incarcerated, compared with 8 out of every 10,000 non-Indigenous adults. Over the full 2023-2024 year, 2.6 percent of the entire Indigenous adult population in these provinces spent at least one day in custody. Among Indigenous men between 35 and 44, that figure reached 7.3 percent, more than one in fourteen.
Saskatchewan had the largest gap of any province studied. Indigenous adults here were incarcerated at 19.4 times the rate of non-Indigenous adults, the highest overrepresentation index in the country. Statistics Canada traces this gap to colonialism, the displacement of Indigenous families from their land, socioeconomic marginalization, and intergenerational trauma from residential schools and the Sixties Scoop, the two systems you studied in Lessons 16 and 17. The gap has widened over time, not narrowed. In 2019, Indigenous adults nationally were incarcerated at 8.1 times the non-Indigenous rate. By 2023, that number had grown to 10.2 times, and the increase for Indigenous women outpaced the increase for Indigenous men. These numbers describe who ends up inside the system once contact with police, courts, or child welfare has already happened, often for reasons connected to the history this course has traced.
In 1999, the Supreme Court of Canada ruled on R. v. Gladue. Jamie Tanis Gladue, a Cree and Métis woman from British Columbia, had pleaded guilty to manslaughter after killing her partner. The court used her case to interpret a section of the Criminal Code, section 718.2(e), that Parliament had recently added. That section tells judges to consider every available sentence other than prison for every offender, and to pay particular attention to the circumstances of Indigenous offenders when doing so.
The Supreme Court ruled that judges sentencing an Indigenous person must weigh two things: the background factors that may have brought that person into contact with the justice system, including the impact of residential schools, poverty, or child welfare removal, and what sentencing options exist that reflect the offender's Indigenous heritage, including options rooted in their own community. Courts across Canada now use documents called Gladue reports to bring judges this background before sentencing. In 2012, the Supreme Court reaffirmed these principles in R. v. Ipeelee, ruling that judges cannot treat Gladue factors as optional or apply them only to offenders who live on reserve. The Gladue Rights Research Database, run by the University of Saskatchewan and Legal Aid Saskatchewan and used earlier in this course, exists to help Saskatchewan lawyers build these reports.
Gladue rights shape sentencing, but they say nothing about who sits on a jury before a verdict is reached. In August 2016, Colten Boushie, a 22-year-old Cree man from Red Pheasant Cree Nation near North Battleford, was shot and killed on a rural property. Gerald Stanley, the property's owner, was charged with second-degree murder. During jury selection in January 2018, Stanley's defence team used peremptory challenges, a rule that let lawyers reject a potential juror without giving a reason, to remove every visibly Indigenous person from the jury pool. The all-non-Indigenous jury acquitted Stanley the following month. Boushie's mother, Debbie Baptiste, and the family's lawyer, Eleanore Sunchild, a Cree lawyer, argued the outcome showed why juries need to reflect the communities they serve.
Within two months of the verdict, the federal government introduced Bill C-75, which eliminated peremptory challenges entirely and became law in September 2019. In 2020, the Supreme Court of Canada upheld the change as constitutional. The reform did not undo the Stanley verdict, but it closed the specific opening that let his defence exclude Indigenous jurors on sight.
Legal reform is one kind of response. FHQ Tribal Council runs another kind through its own Restorative Justice program, serving Muscowpetung, Piapot, Peepeekisis, Standing Buffalo, Okanese, and the Council's other member Nations. Under Director Bev Poitras, the program organizes its work around four pillars: administering court worker, probation, and youth reintegration services; researching community concerns raised by each member Nation's own Justice Committee; delivering training in mediation and community justice forums; and developing new tools, including First Nation mediation grounded in tipi teachings and ceremony. Courtworkers guide people through the court system and connect them with legal aid. Sentencing circles and community justice forums bring the people affected by an offence together to decide how to repair the harm, an approach rooted in practices that predate the Canadian legal system. Where the Gladue decision asks federal and provincial courts to make room for Indigenous circumstances, FHQ Tribal Council's program builds an Indigenous-led alternative from within your own Tribal Council.
Key Idea: Saskatchewan has the highest rate of Indigenous overrepresentation in custody of any province in Canada, 19.4 times the non-Indigenous rate. Gladue rights and FHQ Tribal Council's Restorative Justice program are two different answers to that same reality: one changes how the existing courts treat Indigenous people, the other builds an alternative from within your own community.
Statistics Canada. "The Daily — Overrepresentation of Indigenous and Black Adults in Provincial and Federal Custody." January 14, 2026. https://www150.statcan.gc.ca/n1/daily-quotidien/260114/dq260114b-eng.htm
R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688. https://www.canlii.org/en/ca/scc/doc/1999/1999canlii679/1999canlii679.html
Gladue Rights Research Database. University of Saskatchewan and Legal Aid Saskatchewan. https://gladue.drc.usask.ca
Stefanovich, Olivia. "Supreme Court Says Government's Jury Reforms Are Constitutional." CBC News, September 23, 2020. https://www.cbc.ca/news/politics/stefanovich-supreme-court-hearing-peremptory-challenges-1.5752251
File Hills Qu'Appelle Tribal Council. "Restorative Justice." https://fhqtc.com/justice/