Indigenous and racialized communities are over-incarcerated, and are treated unequally within the prison system.
In January 2020, Canada’s correctional commissioner revealed that over 30% of inmates in Canadian prisons are Indigenous – even though aboriginal people make up just 5% of the population. Between 2005 and 2015, the number of black inmates in Canada’s federal prisons ballooned by 69%.
Experts have been sounding the alarm for years. For example, in 2017, the John Howard Society reported the following:
"The extent to which blacks and Aboriginals are over represented in Canadian correctional institutions is similar to that of African Americans in the United States. Blacks are over represented in federal prisons by more than 300% vs their population, while for Aboriginals the over representation is nearly 500%. The same disparities exist in provincial jails. In Nova Scotia Blacks are 2% of the population but 14% of the jail population. In Manitoba Aboriginals are 16% of the population but 70% of the jail population. In Alberta the numbers for Aboriginals are 6% and 39%. Moreover, these imbalances are getting worse, not better."
"Once in jail, these minorities are more likely to be subject to disciplinary procedures and less likely to be paroled. Aboriginal people make up more than 21% of federal prisoners but less than 14% of parolees, a 50% under-representation."
Rather than solve the problem of bias within the criminal justice system, the current government has allowed it to get worse by failing to regulate the development and use of so called “predictive” software across the criminal justice system and other areas of law, without understanding how these systems perpetuate unfairness and bias. (Predictive software is software that purports to “predict” who is at most risk of (re) offending. These technologies hide and perpetuate biases.) As the Law Commission of Ontario has emphasized:
“Critically, there is no legal framework in Canada to guide the use of these technologies or their intersection with foundational rights related to due process, administrative fairness, human rights, and justice system transparency.” (See )
To address inequities in the prison system, Canada should:
- Institute a requirement that, at the outset of incarceration, correctional authorities develop a personal rehabilitation plan (PRP) that is tailored to the needs and circumstances of each incoming inmate. PRP’s will be subject to periodic audits by an independent auditor to ensure that they are effective and are implemented.
- Ban the use of predictive software until it can be demonstrated that it does not adopt and perpetuate existing racial and other biases. (See )
- Develop a legal framework for predictive software to guide the use of these technologies to ensure that they do not automate the violation of human rights and freedoms.
- Give effect to The Truth and Reconciliation Commission’s Calls to Action as they relate to the justice system, including calls for funding to ensure community-based sanctions and realistic alternatives to imprisonment. (See )
Our justice system also relies too heavily on punishment, at the cost of rehabilitation. Ultimately, rehabilitation is what reduces future offences and secures the public's safety. Therefore, Canada should:
- Institute a requirement that the criminal justice system be guided by the principle that prison is a last resort, and that prolonged prison sentences should be reserved for only the most extreme and intractable offenders.
- Eliminate mandatory minimum sentences.
- Make rehabilitation the primary guideline for sentencing and prison management, not punishment.
- Institute a prohibition on solitary confinement, which constitutes torture and remains in use in our system. (See )
 Automated Decision Making in the Criminal Justice System at p. 4, https://www.lco-cdo.org/wp-content/uploads/2019/11/LCO-Crim-AI-Background-Package.pdf
 Again see https://www.lco-cdo.org/wp-content/uploads/2019/11/LCO-Crim-AI-Background-Package.pdf
 See paragraphs 25-42 of the Calls to Action: http://trc.ca/assets/pdf/Calls_to_Action_English2.pdf
 For an update on developments, including critiques of legislation that purportedly ended solitary confinement, see this overview dated Dec. 1, 2019: https://theconversation.com/the-end-of-solitary-confinement-in-canada-not-exactly-124679#:~:text=As%20of%20Dec.,Sort%20of.&text=The%20act%20eliminates%20administrative%20and,also%20known%20as%20solitary%20confinement.