Swimming Upstream in the Criminal Justice System

Abstract

In this chapter, Mitchell and Webster argue that the almost singular focus to date on addressing Indigenous overincarceration through sentencing ignores the impact of decisions made at earlier contact points and stages of the criminal justice process. They argue that while this may have been influenced by legislative changes in the Criminal Code and the Supreme Court’s 1999 decision in R v Gladue , it has been unsuccessful in addressing the overincarceration of Indigenous people, as in fact it has worsened. This chapter focuses on bail practices and demonstrates how they may also contribute to the overincarceration of Indigenous peoples in Canada. In so doing, Mitchell and Webster situate their discussion within the wider context of the criminal justice system as a settler colonial system. They also explore several remedial measures applicable at the bail stage, including the use of contextualized Aboriginal knowledges, the use of Gladue courts for bail, and Indigenous bail supervision programs. These measures are significant, given that decisions made at that point are often intricately tied to the scope and breadth of options later available to a judge at sentencing.