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

Date:June 06, 2019

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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...

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