Thursday Thinkpiece: Implicating the System–Judicial Discourses in the Sentencing of Indigenous Women

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Implicating the System: Judicial Discourses in the Sentencing of Indigenous Women

Elspeth Kaiser-Derrick was called to the Bar in British Columbia after articling at a criminal defence firm and is currently a Ph.D. candidate at the Peter A. Allard School of Law at the University of British Columbia.

ISBN: 978-0-88755-828-3
Publisher: University of Manitoba Press
Page Count: 414 Pages
Publication Date: March 15, 2019
Price: $34.95

Indigenous women continue to be overrepresented in Canadian prisons; research demonstrates how their overincarceration and often extensive experiences of victimization are interconnected with and through ongoing processes of colonization. Implicating the System: Judicial Discourses in the Sentencing of Indigenous Women explores how judges navigate these issues in sentencing by examining related discourses in selected judgments from a review of 175 decisions.

The feminist theory of the victimization-criminalization continuum informs Elspeth Kaiser-Derrick’s work. She examines its overlap with the Gladue analysis, foregrounding decisions that effectively integrate gendered understandings of Indigenous women’s victimization histories, and problematizing those with less contextualized reasoning. Ultimately, she contends that judicial use of the victimization-criminalization continuum deepens the Gladue analysis and augments its capacity to further its objectives of alternatives to incarceration.

Kaiser-Derrick discusses how judicial discourses about victimization intersect with those about rehabilitation and treatment, and suggests associated problems, particularly where prison is characterized as a place of healing. Finally, she shows how recent incursions into judicial discretion, through legislative changes to the conditional sentencing regime that restrict the availability of alternatives to incarceration, are particularly concerning for Indigenous women in the system.

Excerpt from Chapter 3—Incarceration Wounds: Judicial Discourses About Healing.

[Various] judgments reveal some of the specific oppressiveness of the experience of incarceration for Indigenous women, such as in R. v. Johnson. Jessica Johnson pleaded guilty to robbery, discharging a firearm with intent to prevent arrest, aggravated assault of a peace officer, and using a firearm during flight from a robbery (her co-accused, with whom she was in a relationship, went to trial). Johnson’s mother is a member of the Little Salmon Carmacks First Nation, and her father is a member of the Kluane First Nation. Justice [Leigh F.] Gower reviews her Gladue report and finds mitigating that Gladue factors “have disadvantaged Ms. Johnson in many ways beyond her control,” and thereby accepts her defence counsel’s submission that she “never really had much of a chance to make a success of her life given her upbringing, until now.”[1] In this respect, through the phrase “until now,” it seems her sentence is framed as an opportunity for positive change, although the judgment suggests a complex image of the meaning of prison, in general and for Johnson in particular.

Justice Gower quotes from the psychologist’s report that Johnson “becomes discouraged easily and she appears to benefit from having a sense of hope. A lengthy incarceration may further entrench her resentment towards what she perceives as an unjust system.”[2] (As an aside, it is worth noting that all people, and certainly those facing a prison sentence, benefit from being able to retain a sense of hope.) Johnson’s understanding that the overarching system(s) in which she is being sentenced is unjust is profoundly significant. In their report for the TFFSW [The Task Force on Federally Sentenced Women], [Fran] Sugar and [Lana] Fox, themselves Indigenous women and former federal prisoners, differentiate the experience of imprisonment for Indigenous women for reasons including their fraught relationship with settler law, as prison rules echo colonial rules, and, “for us, prison rules have the same illegitimacy as the oppressive rules under which we grew up.”[3] Sugar and Fox elucidate that “our understandings of law, of courts, of police, of the judicial system, and of prisons are all set by lifetimes defined by racism,” extending to cultural and economic oppression and marginalization and producing “oppressive regimes whose authority we resent and deny.”[4]

This context is alluded to by the psychologist’s observation that a long period of incarceration could amplify Johnson’s resentment toward what she experiences and understands to be an unjust system, but it becomes effectively individualized in how it is translated in the judgment. That is, Justice Gower decides that the relevant aggravating factors include Johnson’s “apparent disregard for authority, as evidenced by her criminal record for process offences, the WCC [Whitehorse Correctional Centre] reports of internal disciplinary offences,” and her “psychological report.”[5] The judge endeavours to contextualize Johnson’s behaviours while in custody by suggesting that she “is suffering from significant psychological challenges, which to a large extent are beyond her control,” as “she has been diagnosed with post-traumatic stress disorder and a personality disorder with borderline antisocial features.”[6] Drawing on related comments from the psychologist, Justice Gower posits, “In that context it is perhaps not surprising that Ms. Johnson would be reported to have exhibited the type of rude and disrespectful behaviours described in the WCC reports.”[7] However, while compassionate, this frame still individualizes what are likely much deeper, more systemic concerns. Against the psychologist’s observations that Johnson resents the system, finding it unjust, it would be helpful to further contextualize Johnson’s process and disciplinary offences within her experience as an Indigenous woman living in an unjust political and criminal justice system, which, in practical terms, could mean the judge’s deciding that these process and disciplinary offences do not constitute aggravating circumstances.

Members of the Kluane First Nation Elders Council submitted a letter for Johnson’s sentencing, in which they write, in terms evoking the victimization-criminalization continuum, that “trauma . . . has put her there,”[8] in the system. The judge relates that they suggest that “some of the British Columbia penitentiaries have a healing component” and put this forward for sentencing consideration.[9] Justice Gower makes a recommendation that CSC [The Correctional Service of Canada] consider Johnson for the Tsow-Tun Le Lum Substance Abuse Treatment Centre in British Columbia and the Okimaw Ohci Healing Lodge for Indigenous women in Saskatchewan, and, heeding the Elders Council request, lists a few correctional programs for Indigenous prisoners. The judgment does demonstrate judicial recognition that prison is not inherently a healing place, such as where Justice Gower writes in reference to the attempt to “incorporat[e] a healing component to this sentence, to the extent that that can be done in a penitentiary in British Columbia.”[10]

The issue of “healing” is effectively discarded in R. v. Papin, but, like Johnson, this decision engages issues that recall Sugar and Fox’s comments about Indigenous women’s experience of the criminal justice (and certainly correctional) system(s) as fundamentally unjust. In a judgment determining a dangerous offender hearing and sentencing (connected to the predicate offences of aggravated assault and possession of a weapon for a dangerous purpose), Justice John T. Henderson finds that “even though many significant Gladue factors are present in this case, the actual impact that those factors will have on the ultimate sentence is slight.”[11] In part due to the conclusion that her “behavior . . .will not improve with further treatment,”[12] the judge sentences Papin to a total of five years’ incarceration for the predicate offences and a ten-year long-term supervision order (the maximum duration). Justice Henderson notes Tammy Papin’s “persistent involvement with the criminal justice system,”[13] observing that she “has been in custody in both the federal and the provincial correctional systems for the majority of her adult life.”[14] Papin is a member of the Enoch Cree Nation, and was embroiled in various institutions (including residential treatment facilities) in her earlier life, too, after a childhood “characterized by domestic violence, alcoholism, drug addiction and sexual abuse.”[15] The judge writes that she “endured horrific conditions as a child during which she was in and out of foster care and also, at various times, was housed in institutional settings.”[16] It seems Papin has been institutionalized in some form throughout her life. As [Elizabeth] Comack observes, “For some [women], incarceration is part of a long line of state intervention into their lives.”[17]

Referring to one of Papin’s previous periods of incarceration, Justice Henderson indicates that she expressed to the psychologist of the secure unit that “the correctional system was unjust,”[18] and that psychologist testified that Papin “did not trust the custodial system.”[19] Incidentally, from my comparison of the dates provided within the judgment, it seems Papin made these comments to the psychologist during the same period of incarceration at Nova Institution in which she “filed a grievance regarding her lack of access to Aboriginal services, particularly sweats.”[20] (The judge acknowledges that “not all federal inmates have access to a full range of Aboriginal programming.”)[21] Papin’s mistrustful perception of the system as unjust should perhaps also be understood with reference to her having been “convicted of a number of additional offences which extended her period of incarceration”[22] while she served sentences in federal institutions in the past, although the judge does not explicitly connect these experiences in the decision.

As this decision deals with a dangerous offender hearing, the Crown argues that Papin’s past offences demonstrate a pattern of violence. In response, the judge contextualizes her violence, including finding it to be as generally “low level violence which resulted in little, if any, injury.”[23] Justice Henderson concludes, “In most instances the Offender was reacting to circumstances that were presented to her.”[24] The judge finds that “very often she was responding violently to police officers or security guards who were attempting to arrest her. . . . In other situations she was responding violently when she was being moved or otherwise dealt with by correctional officers while in custody. . . . In most situations the Offender’s violence was directed to persons who were lawfully trying to physically control her. None of the violence was directed against victims who were randomly targeted.”[25]

Justice Henderson further infers that “the prevalence of assaults against persons in authority such as police officers, security guards and correctional officers suggests that the Offender has little, if any, respect for persons in authority.”[26] The judge does not directly connect her mistrust in what she experiences as an unjust correctional system and her seeming lack of respect for authority figures with her Gladue factors and related history of institutionalization, although, given the insights of Sugar and Fox about the invalidity and oppressiveness of the prison system for Indigenous women, I suggest these issues should be understood as interrelated. I pointed earlier to research finding that institutional violence (including self-directed) and disruptiveness of women prisoners do not directly correlate to their conduct outside of prison walls, and that such behaviours within prison should be understood as products of the experience of incarceration itself, and not indicative of the level of risk the women may present in the community. The ways in which Papin acted out violently while in prison (against authorities trying to control her) should also be read through this framework, coupled with Sugar and Fox’s understanding of what prison signifies for Indigenous women.

Although these cases point to the issue of Indigenous women’s fearing and mistrusting the criminal justice system and finding it and its prison system oppressive and illegitimate, it should also be recognized that processes of colonization and related ongoing torment and pain for Indigenous individuals, families, communities, and nations simultaneously produce similar fears and perceptions of other (sometimes intersecting or interdependent) government systems. The UN Committee [on the Elimination of Discrimination against Women] connects the overrepresentation of Indigenous children removed into the state welfare system with amplified vulnerability of Indigenous women to experiencing violence, given that mothers “are reluctant to seek help from authorities for fear that their children will be taken away.”[27] This relationship between the disproportionate state removal of Indigenous children and the victimization of Indigenous women can also be extended to the criminalization of Indigenous women, as a related broader personal and collective sense of apprehension toward and distrust in government systems surfaces in moments in the cases. For example, in R.C.L., Judge [Michael B.] Hicks suggests that R.C.L. acted “for selfish motives” in failing to contact authorities about the death of a man in her home (she was sentenced for improper or indecent interference with a dead body, which she had attempted to dispose of herself); her “stated reason for failing to alert police was to prevent child welfare staff from stepping in to apprehend the children and carry out their responsibilities.”[28] The degree to which R.C.L.’s decision was a “selfish” act should be challenged. As Randi Cull indicates, many years of “unjustified state intervention” into Indigenous mothers’ lives demonstrate “how the state has done an appallingly bad job when acting as the parent or guardian” of Indigenous children, and that the focus must be shifted from surveilling and evaluating Indigenous mothering and instead redirected toward “the state’s continued negligence”[29] on this issue. Cull notes that across various historical and ongoing forms of state intervention into Indigenous families, Indigenous peoples “have always strongly resisted the removal of their children,” but that the vast power imbalance between the state and Indigenous peoples obstructs such efforts.[30] Toward the end of her sentencing hearing, R.C.L. delivered a statement to the court, and the judge writes that “she referred to her own experience in foster care and in her family of origin and the impact that has had on her own dealings with Ministry officials in regard to her own children.”[31] Her Gladue report indicates that her mother was abused in foster care, and, during R.C.L.’s own childhood, she “experience[ed] systemic inequality . . . including dislocation, poverty, substance abuse and family breakdown.”[32] All of R.C.L.’s youngest children were apprehended by the state.

This judgment also discloses that during the period in which her pre-sentence report was being prepared, R.C.L. was pregnant, but denied this to her social worker and gave the hospital an assumed name when giving birth (her reasons for denying her pregnancy and providing a false name to the hospital are not identified in the judgment, although it seems reasonable to infer she was afraid her children would be removed from her care). She could not pick up her baby from the hospital to which he was transferred because she was detained in advance of her court date for the final sentencing submissions. As R.C.L. was in custody and unable to receive her baby, and because he was not linked in hospital records to her real identity, her baby was apprehended. Her fears about the child welfare system intersect powerfully with her experience of the criminal justice system in this case, effectively coming full circle: she reports that her offence was motivated by her fears about her children being apprehended, and her newborn baby was apprehended while she was detained awaiting her consequent sentencing. Indeed, in outlining the breadth of its mandate, the MMIWG Inquiry [The National Inquiry into Missing and Murdered Indigenous Women and Girls] indicates its purview encompasses “other forms of institutionalized violence beyond the justice system,” noting that such institutionalized violence includes the child welfare system and incarceration.[33] Gordana Eljdupovic, Terry Mitchell, Lori Curtis, et al., note that the residential school system, “child welfare practices,” and the overincarceration of Indigenous peoples all (each and together) produce “ongoing separation” of Indigenous children “from their families, communities, and culture,” which replicates the isolation, familial and cultural alienation, and vulnerabilities their parents may have experienced in their own childhoods, and reproduces the same intergenerational “cycles of poverty and violence,” increasing the likelihood of their own later criminalization and incarceration.[34]

In another case where an Indigenous woman’s fears about losing her children to one state system contributes to her criminalization in another, Charissma McDonald pleaded guilty to criminal negligence causing the death of her baby by not ensuring the child received medical care. When born, that baby had been initially apprehended and placed into foster care after testing positive for opiates, and McDonald’s other children were also removed and placed with other family members. All her children were later returned to her care. At one point, a doctor making a home visit when McDonald was not present told another family member that McDonald should immediately take her baby to the pediatric emergency for an infection. McDonald did not seek further medical attention until she called an ambulance two weeks later to report her child had stopped breathing. In her statements to police, McDonald indicated that she had not taken her baby “to a doctor because she was scared that, due to the bruises on” the baby’s body, “she and the other children would be apprehended by Social Services.”[35] Additionally, there are other women who also lose their children because of their general involvement in the system, and/or through their actual incapacitation through incarceration. For example, in R. v. C.T., in a decision referenced in Chapter 2 regarding waivers of Gladue reports, Judge [Michael J.] Brecknell writes that C.T. “was pregnant when she went into custody and gave birth to what is now her third child who is now under the care of the Ministry of Children and Family Development,” noting that this woman from the Sturgeon Lake Cree First Nation “was not permitted to care for her child after its birth while in custody up to this point.”[36]

Indigenous women incarcerated in a provincial prison told Justices Hamilton and Sinclair for the Aboriginal Justice Inquiry of Manitoba [The Public Inquiry into the Administration of Justice and Aboriginal People of Manitoba] that they were concerned about their children having “been taken away from them and that their criminal involvement had led to questions being raised about their competency as parents,” and many of the women explained having committed their offences “in order to feed and provide for their children.”[37] It must be remembered that many (probably most) of Indigenous women’s concerns about the system are never fully articulated to actors within the system, and/or are never received (or “heard”) by those administering the system. These women’s perceptions (and the realities) of the systems that control them, at least as “heard” or recorded in the judgments, should be kept in view in the consideration of the tension between punishment and healing. That is, it is the Indigenous women being sentenced in the judgments who live the tension between punishment and healing, and it is these women (along with their families and communities) who are pulled within and feel the pressures and strains of this tension.


1 R. v. Johnson, 2013 YKSC 126, para. 40; emphasis added [Johnson].
2 Ibid., para. 23; emphasis added.
3 Fran Sugar and Lana Fox. “Nistum Peyako Séht’wawin Iskwewak: Breaking Chains.” Canadian Journal of Women and the Law 3, no. 2 (1989-90): 465-82, at 476.
4 Ibid., 475.
5 Johnson, para. 39.
6 Ibid., para. 63.
7 Ibid.
8 Ibid., para. 31.
9 Ibid.
10 Ibid., para. 68; emphasis added.
11 R. v. Papin, 2013 ABPC 46, para. 207 [Papin].
12 Ibid., para. 187.
13 Ibid., para. 16.
14 Ibid., para. 51.
15 Ibid., para. 206.
16 Ibid., para. 16.
17 Elizabeth Comack. Women in Trouble: Connecting Women’s Law Violations to Their Histories of Abuse. Halifax: Fernwood Publishing, 1996, at 153.
18 Papin, para. 165.
19 Ibid., para. 170.
20 Ibid., para. 136.
21 Ibid., para. 131.
22 Ibid., para. 44.
23 Ibid., para. 295.
24 Ibid., para. 287.
25 Ibid.
26 Ibid., para. 294.
27 United Nations Committee on the Elimination of Discrimination against Women. Report of the Inquiry Concerning Canada of the Committee on the Elimination of Discrimination against Women under Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. New York: United Nations, 2015, at 57.
28 R. v. RCL, 2012 BCPC 53, para. 91 [RCL].
29 Randi Cull. “Aboriginal Mothering Under the State’s Gaze.” In “Until Our Hearts Are On The Ground”: Aboriginal Mothering, Oppression, Resistance and Rebirth, edited by D. Memee Lavell-Harvard and Jeannette Corbiere Lavell, 141-56. Toronto: Demeter Press, 2006, at 153.
30 Ibid., 144.
31 RCL, para. 98.
32 Ibid., para. 77.
33 Canada. The National Inquiry into Missing and Murdered Indigenous Women and Girls. Interim Report: Our Women and Girls Are Sacred. Ottawa: National Inquiry into Missing and Murdered Indigenous Women and Girls, 2017, at 20; emphasis added.
34 Gordana Eljdupovic, Terry Mitchell, Lori Curtis, Rebecca Jaremko Bromwich, Alison Granger-Brown, Courtenay Arseneau, and Brooke Fry. “Incarcerating Aboriginal Mothers: A Cost Too Great.” In Incarcerated Mothers: Oppression and Resistance, edited by Gordana Eljdupovic and Rebecca Jaremko Bromwich, 43-58. Bradford, ON: Demeter Press, 2013, at 46.
35 R. v. McDonald (R. v. CDM), 2012 SKQB 245, para. 37.
36 R. v. CT, 2014 BCPC 42, para. 3.
37 Public Inquiry into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba. Commissioners: Justices Alvin C. Hamilton and C. Murray Sinclair. Winnipeg: Aboriginal Justice Inquiry, 1991, at Volume I, Chapter 13.

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