Crisis Declared

While the Supreme Court of Canada declared the existence of “crisis” in its 1999 decision in R v Gladue, Indigenous mass imprisonment had been documented for decades prior.^{Footnote 10} It was in Gladue, however, that the matter first assumed the status of “crisis” in mainstream Canadian legal discourse. In this case, the Court was asked to interpret s. 718.2(e) of the Criminal Code, a provision introduced as part of the 1996 Criminal Code reforms that instructs sentencing judges to consider all available sanctions other than imprisonment for all offenders, paying “particular attention to the circumstances of Aboriginal offenders.”^{Footnote 11} In interpreting this provision, the Court explained that s. 718.2(e) is remedial in nature, designed to ameliorate the high rates of Indigenous incarceration, and amounts to clear direction from the government to the judiciary to inquire into, and seek to remedy, the problem. The Court then identified the problem as a “crisis” and, after reviewing statistics about Indigenous incarceration rates, famously stated:

In addition to declaring a “crisis,” the Court also recognized that the high incarceration rates reflect a complex set of factors, including “widespread racism” and “systemic discrimination.”^{Footnote 13} The “unbalanced ratio of imprisonment,” it stated, flows from the combination of dislocation, poverty, substance abuse, lack of education, social and economic disparities, a lack of employment opportunities, ingrained institutional bias, as well as “systemic and direct discrimination.”^{Footnote 14}

Recognizing that “sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system,” the Court altered the method of analysis that sentencing judges must use in determining a fit sentence for Indigenous peoples. The Gladue methodology requires sentencing judges to take judicial notice of the above-noted factors, and asks counsel to submit case-specific information about the accused to aid the Court in crafting a fit sentence.^{Footnote 15} The methodology also requires sentencing judges to consider the accused’s unique systemic or background factors, as well as the “types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.”^{Footnote 16} The Court emphasized the need for sentencing courts to consider restorative justice principles and urged the need for community-based sanctions.^{Footnote 17} As Hadley Friedland explains, one of Gladue’s most important legacies lies in the Court’s recognition that Indigenous “understandings, ideals and conceptions of sentencing procedures and sanctions were important for Canadian courts to consider.”^{Footnote 18} Indeed, the Court clearly stated that in “all instances, it is appropriate to attempt to craft the sentencing process and the sanctions imposed in accordance with the aboriginal perspective.”^{Footnote 19}

Many of Gladue’s insights are significant and worthwhile. When applied with rigour, the Gladue methodology is effective at highlighting some systemic disparities in the legal system and encouraging sentences other than imprisonment. Importantly as well, law reform efforts initiated in Gladue’s aftermath have led to the creation of Gladue courts, as well as other community-based and grass-roots initiatives to address the problem, such as court worker services, problem-solving and therapeutic courts, Aboriginal courts and community-based restorative justice or healing programs.^{Footnote 20} The significance of these initiatives cannot be discounted. But while Gladue remains, as Jonathan Rudin maintains, one of the “most significant developments in the criminal law for Aboriginal people,” it has failed to transform the incarceration landscape.^{Footnote 21} Despite these developments, as David Milward and Debra Parkes wrote in 2011, the “crisis of Aboriginal over-incarceration in Canada has continued unabated.”^{Footnote 22}

The Court reflected on Gladue’s failures in its 2012 decision in R v Ipeelee, a case that considered the interpretation of s. 718.2(e) anew. ^{Footnote 23} In this case, the Court revisited Gladue’s application, again emphasizing the urgency and severity of “crisis.” The Court engaged in a more nuanced analysis than it did in Gladue, drawing a direct link between high incarceration rates and the “history of colonialism, displacement, and residential schools.”^{Footnote 24} This marks a shift away from an established pattern on the part of Canadian courts of denying the impact of colonialism or concealing the legal system’s role in maintaining its violence.^{Footnote 25} Ipeelee explicitly instructs sentencing judges to take judicial notice of colonialism, and of the ways its legacy “continues to translate” in the present day.^{Footnote 26} Importantly as well, by locating the crisis in the legal system, as opposed to, for example, Indigenous communities or offending behaviour, Ipeelee, like Gladue, appropriately assume a level of responsibility for the production of “crisis”. Ipeelee thus reads as a powerful reinforcement of Gladue and its principles. It also clarifies ambiguities in the Gladue methodology and its application, providing additional guidance for courts and counsel to effectively implement s. 718.2(e). Finally, Ipeelee also recognizes the limits of this methodology in addressing “crisis,” citing Rudin to ask: “If Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today?”^{Footnote 27}

Crisis Proliferates

One of Gladue and Ipeelee’s most enduring legacies has been to entrench the language of “crisis” as characteristic of Indigenous mass imprisonment. In the twenty years since Gladue’s release, courts have deployed the language of “crisis” with frequency. Many have cited Gladue without much discussion—stating simply that the rates of Indigenous incarceration “are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system.”^{Footnote 28} Others have acknowledged the existence of “crisis,”^{Footnote 29} analyzed the nature of the “crisis,”^{Footnote 30} or emphasized their broader “duty to endeavour to remedy the crises of drastic over representation,”^{Footnote 31} or “explore realistic options to incarceration in an effort to address this growing crisis.”^{Footnote 32} Some have sought to address “crisis” by urging the need to “take a restorative approach to sentencing and look to the indigenous community for help to achieve it,”^{Footnote 33} or to “give proper weight to the systemic factors unique to the offender… and take a restorative approach in sentencing while at the same time balancing other sentencing principles.”^{Footnote 34} Others have noted Gladue and Ipeelee’s identification of the root causes of crisis as consisting of “alienation, poverty, substance abuse, lower educational attainment, lower rates of employment, and bias experienced by indigenous Canadians as a result of Canada’s colonial history and destructive assimilationist policies such as the operation of Indian Residential Schools,” noting further that the two decisions “changed the way indigenous offenders are sentenced, though not necessarily the result.”^{Footnote 35} At least three courts have cited Ipeelee’s citation of Rudin’s query that “[i]f Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today?”^{Footnote 36} Several courts have discussed the existence of “crisis” without citing either case. ^{Footnote 37}

Some courts have discussed the problem at length. In R v Kokopenace, the Ontario Court of Appeal referenced years of efforts on the part of the judiciary to address the “crisis.”^{Footnote 38} In R v Elliott, the British Columbia Provincial Court emphasized the need to adopt a restorative approach to sentencing to “avert the crisis.”^{Footnote 39} Some courts have also used “crisis” to describe Indigenous communities, for example, identifying certain communities as being “in crisis,”^{Footnote 40} or as immersed in “crisis.”^{Footnote 41} Many have done so in a lamenting tone, characterizing the “crisis” as “tragic”^{Footnote 42} or “sad,”^{Footnote 43} or as a reality that should “shame us and should make us weep and do better.”^{Footnote 44}

Courts have also deployed the language of “crisis” outside the sentencing context, on the rationale that Gladue’s “underlying philosophy bears on other aspects of the interaction between Aboriginal peoples and the justice system.”^{Footnote 45} As the Ontario Court of Appeal explained in R v Kokopenace, such an approach was implicitly endorsed in Gladue and Ipeelee in their recognition that “sentencing innovation alone would not solve the greater alienation of Aboriginal people from the criminal justice system.”^{Footnote 46} The most prominent example arises in United States of America v Leonard, a judicial review of extradition orders for two Indigenous men facing drug charges in the United States.^{Footnote 47} There, Sharpe JA noted that the “tragic personal and family histories and current circumstances of both applicants closely correspond with many of the systemic factors identified by the Supreme Court in R v Gladue… as requiring special consideration on account of the crisis in the Canadian criminal justice system arising from the disproportionate incidence of incarceration amongst Aboriginal peoples.”^{Footnote 48}

Ultimately concluding that Gladue could be applied, Sharpe JA explained that “insisting that Aboriginal defendants be treated as if they were exactly the same as non-Aboriginal defendants will only perpetuate the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of Aboriginals in our prisons.”^{Footnote 49} This statement has been cited with frequency by subsequent courts.^{Footnote 50} Other courts have applied the language of “crisis” in cases involving curative discharge,^{Footnote 51} sentencing for civil contempt,^{Footnote 52} orders that Indigenous children be made Crown wards without access,^{Footnote 53} dispositions of persons found not criminally responsible on account of mental disorder,^{Footnote 54} or sentencing of Indigenous youth.^{Footnote 55}

The language of “crisis” also appears in Inglis v British Columbia,^{Footnote 56} a constitutional challenge to the cancellation of the “mother-baby” program at Alouette Correctional Centre for Women. The program allowed new mothers, many of whom were Indigenous, to maintain contact with their infants while serving time in provincial jail. In this case, Ross J referenced “crisis” as a relevant factor in supporting the conclusion that the cancellation of the program violated the Charter’s equality rights provision. In R v Cake, a case involving a publication ban application following a guilty plea to obstructing justice, the Ontario Superior Court of Justice stated that Gladue and Ipeelee “speak directly to larger systemic issues impacting aboriginal people.”^{Footnote 57} The Court referenced the “crisis” within the administration of justice in Ontario, citing Frank Iacobucci’s 2013 report First Nations Representations on Ontario Juries, which I discuss below.^{Footnote 58} In Law Society of Upper Canada v Robinson, the plaintiff was disciplined by the Law Society of Upper Canada for engaging in conduct unbecoming of a lawyer. The plaintiff challenged the penalty, on grounds that the hearing panel failed to appreciate his Indigeneity and related circumstances. After citing Leonard, Gladue, and Ipeelee, the panel concluded that such questions of discipline are “unconnected to incarceration or the crisis identified in Gladue.”^{Footnote 59}

The Supreme Court of Canada deployed the language of crisis outside the sentencing context on at least two occasions. First, in R v Kokopenace, the Supreme Court overturned the Ontario Court of Appeal’s decision that a jury roll had inadequately ensured representative inclusion of Aboriginal on-reserve residents.^{Footnote 60} While neither majority nor dissent deployed the language of “crisis,” Karakatsanis J, in her partially concurring opinion, stated that “addressing the disengagement of Aboriginal peoples from the jury system is an important step in addressing the larger web of problems—described …[in] the Iacobucci Report as a crisis.”^{Footnote 61} Second, in Sauvé v Canada, a Charter challenge to the prisoner disenfranchisement provisions of the Voting Act,^{Footnote 62} then Chief Justice McLachlin, writing for the majority in a five–four split, referenced the “crisis” of Indigenous incarceration. Cautioning that the disenfranchisement provisions would have a “silencing” effect on Indigenous prisoners, McLachlin CJC struck down the law.^{Footnote 63} Gonthier J, writing in dissent, also referenced the “crisis” of Indigenous incarceration but with a different effect. Upholding the disenfranchisement provisions, Gonthier J maintained that the law did not target Indigenous peoples. “If there is a problem with the overrepresentation of Aboriginal people in our criminal justice system and prisons,” Gonthier J explained, that problem must be addressed through sentencing and by “addressing some of the root causes of the overrepresentation identified by this Court in Gladue.”^{Footnote 64}

Numerous reports and commissions of inquiry have also documented, addressed, and critiqued the mass imprisonment of Indigenous people through the language of “crisis.”^{Footnote 65} In its 2002–2003 Annual Report, for example, the Office of the Correctional Investigator concluded, “disproportionate barriers to safe, timely release of aboriginal offenders constitute a continuing crisis and an embarrassment.”^{Footnote 66} A 2005 report titled Aboriginal Peoples and the Criminal Justice System emphasized that Indigenous overrepresentation “is one of the clearest markers of what the Supreme Court of Canada has referred to as ‘a crisis in the Canadian justice system.’”^{Footnote 67} In a 2006 address to Parliament, in his capacity as the Federal Correctional Investigator, Howard Sapers emphasized the “growing crisis regarding Aboriginal inmates,” identifying this as “Canada’s national disgrace.”^{Footnote 68} In a 2009 report titled Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections, the Office of the Correctional Investigator urged the need for urgent action and expeditious mobilization to reduce the gap between Indigenous and non-Indigenous offenders, cautioning that absent such efforts the “situation may devolve into crisis.”^{Footnote 69} A 2012 report commissioned by Public Safety Canada identified the incarceration of Indigenous women as “nothing short of a crisis” noting further that “it has been a crisis for quite some time now.”^{Footnote 70}

In 2013, former Supreme Court Justice Frank Iacobucci released an independent report, First Nations Representation on Ontario Juries, on the lack of representation of First Nations peoples living in reserve communities on Ontario juries.^{Footnote 71} Iacobucci arrived at a series of scathing conclusions, stating that: “the justice system as it relates to First Nations peoples… is in crisis.”^{Footnote 72} He further stated that “relations between the justice system and First Nations have reached the crisis stage,” and urged action, stating that a continuation of the status quo will only “aggravate what is already a serious situation” and diminish any “hope of true reconciliation.”^{Footnote 73} Citing the “tragic history of Aboriginal people, with many examples of mistreatment, lack of respect, unsound policies, and most importantly a lack of mutual trust,” Iacobucci called for systemic reform, emphasizing the need for a “top down approach for the Attorney General to seek the candid advice and wisdom of those directly affected.”^{Footnote 74} In 2014, in its report titled Over-Represented and Over-Classified: Crisis of Aboriginal Women in Prison,^{Footnote 75} the Ontario Women’s Justice Network stated that the incarceration of Indigenous women in federal corrections constitutes a “crisis.”^{Footnote 76} These accounts represent only a sampling; many more such reports have been issued to date.^{Footnote 77}

With the release of each report, media outlets have discussed, analyzed, and bemoaned the existence of “crisis.” In 2012, the release of Marginalized prompted The Globe and Mail headline “Tory Crime Agenda Fueling ‘Crisis’ Of Aboriginal Women In Prison,”^{Footnote 78} and CBC News headline “New Report Describes Growing ‘Crisis’ For Aboriginal Women.”^{Footnote 79} After the release of Iacobucci’s 2012 report, the language of “crisis” again appears in the headlines, with the Toronto Star reporting “Ontario’s Justice System In A ‘Crisis’ For Aboriginals,”^{Footnote 80} and numerous other outlets reporting the same. Iacobucci also used the language of “crisis” when engaging with media after the report’s release, stating: “I have called it a crisis, a serious crisis. And I am not an alarmist. We are talking about the lives and liberties of people. I don’t know if you can get more of an important issue subject than that.”^{Footnote 81}

Even when reports did not utilize the language of “crisis,” media accounts often have. Soon after the release of Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act, ^{Footnote 82} for example, The Globe and Mail, Toronto Star, and CTV News used the language of “crisis” to describe its results.^{Footnote 83} Media outlets have also used the language of “crisis” to describe the lack of Gladue report writers,^{Footnote 84} or ongoing disparities in incarceration rates.^{Footnote 85} Add to this the editorials and opinion pieces that have lamented the existence of “crisis” in Canada’s legal system and urged the need for reform.^{Footnote 86}

In each of these decisions, reports, and media pieces, the language of “crisis” functions differently. In some, the language carries little rhetorical value, being used as descriptor. In others, the language conveys outrage or horror, serving to communicate disapproval or condemnation. In others still, the language of “crisis” forms part of what Sarah Clark refers to as “shock and awe” terminology, namely, the deployment of discourses, policies, and practices that perpetuate statistics of shock and horror to justify colonial control and intervention.^{Footnote 87} In most, as Vicki Chartrand’s analysis suggests, Indigenous experiences are “symptomized as an unfortunate but inevitable consequence, while the structural and systemic manners in which Indigenous people continue to be colonized are rarely explored.”^{Footnote 88} In such representations, the language of “crisis” operates to imply an exceptional, rather than normal, operation of colonialism. In some, however, the language of “crisis” is deployed in good faith, and is central to, and formative of, the analysis or conclusion as reached. In these representations, the language helps expose the operation of colonialism in the production of “crisis.” While each representation reads and functions differently, the language of “crisis” weaves them together. Whichever way they are analyzed, it is clear that, as regards Indigenous incarceration, the language of “crisis” has taken hold.

Crisis Persists

In Gladue’s aftermath, Indigenous incarceration has not only increased, it has skyrocketed. The structures of inequality and alienation that Gladue and Ipeelee criticized are as embedded in the Canadian legal system now as they were then. At the risk of reinforcing the same rhetorical strategy I critique above, namely, the focus on Indigenous imprisonment as over rather than as mass—I briefly turn to some statistics. I do so mindful of Nichol’s reminder that in the context of “ongoing occupation, usurpation, dispossession, and ecological devastation, no level of representation in one of the central apparatuses of state control and formalized violence would be proportionate.”^{Footnote 89}

A brief survey of the numbers is nonetheless important to highlight the intensity of the problem. As of 2017, Indigenous people made up less than 5% of the Canadian population, but comprised 26.4% of the federal inmate population. The Office of the Correctional Investigator has reported an increase in the federal incarceration rate of Indigenous peoples every single year over the last three decades.^{Footnote 90} Between 2007 and 2016, the Indigenous prison population increased by 39%. In the period between 2007–2008 and 2016–2017, the rate of incarceration for Indigenous women increased by 60%.^{Footnote 91} Calculated differently, in the period between 2001–2002 and 2011–2012, the rate of incarcerated Indigenous women increased by 109%.^{Footnote 92}

The gap between Indigenous and non-Indigenous inmates continues to widen in every aspect of corrections. Year after year, the Correctional Investigator reports that Indigenous people are more likely to be subject to the use of force in corrections; are less likely to receive parole, and are more likely to return to prison on revocation of parole.^{Footnote 93} Indigenous people are more likely to be classified as high-risk and therefore incarcerated in maximum-security institutions.^{Footnote 94} For example, in 2017, while Indigenous women represented 37% of all women behind bars, they made up 50% of maximum-security classifications.^{Footnote 95} In part due to this over classification, Indigenous people are also more likely to be segregated in solitary confinement. As of March 31, 2017, for example, there were 414 offenders in solitary confinement across federal institutions, and 151 of them (36.5%) were Indigenous. The percentage of segregated Indigenous inmates increased by 31% between 2005 and 2015, compared with a growth of 1.9% for non-Indigenous inmates.^{Footnote 96} Indigenous women comprise 50% of placements in solitary confinement.^{Footnote 97} By all accounts, the Corrections Services of Canada have not effectively considered Indigenous social histories to reduce the impact of solitary confinement on Indigenous inmates.^{Footnote 98} The extreme rates of classification and isolation also contribute to higher rates of violence and harm among Indigenous inmates, both to self and to others.^{Footnote 99}

The above-cited figures only account for incarceration rates of Indigenous peoples in Federal corrections, for sentences of two years or more. At the provincial level, the figures are just as stark. The 2014 statistics show that in Saskatchewan, the rate of Indigenous incarceration was 77% (up from 61% in 1978), in Manitoba the rate was 76% (up from 50% in 1978), in British Columbia the rate was 34% (up from 15% in 1978), and in Newfoundland and Labrador the rate was 32% (up from 3% in 1978).^{Footnote 100} While Ontario’s 12% incarceration rate appears relatively low, given the high population rates in Ontario, the province accounts for the second-highest total number of Indigenous admissions into custody, representing roughly 3,000 individuals.^{Footnote 101} In Nunavut, the Indigenous incarceration rate is 100% in every year in which statistics were kept. While the rate has remained the same, the numbers behind it have increased, rising from an average of 290 from 2001 to 2005 to 470 between 2011 and 2014.^{Footnote 102} Indigenous peoples are also grossly over-represented in the remand population. In 2014–2015, Indigenous people represented 25% of remand admissions, a sharp increase from the 16% rate reported one decade prior.^{Footnote 103} Every aspect of corrections records similar disparities. As Julian Roberts and Andrew Reid conclude, when it comes to Indigenous incarceration: “every picture tells the same story.”^{Footnote 104} The “crisis,” as it were, persists.

The Limits of Crisis

The above-cited figures are devastating. To use the language of Gladue, they truly are “stark,” “drastic,” and revealing of a “sad and pressing social problem.”^{Footnote 105} But do they represent a crisis? No. However effective the language of “crisis” may be in capturing the urgency and severity of Indigenous mass imprisonment, it has proven ineffective. So many legal actors have lamented the existence of “crisis” for so many years now that the term has lost its value. In Minding the Law, Anthony Amsterdam and Jerome Bruner warn against the dulling effect of repetition, stating: “when our ways of conceiving of things become routine… they disappear from consciousness and we cease to know that we are thinking in a certain way or why we are doing so.”^{Footnote 106} With every repetition, the language of “crisis” has not only dulled the severity of the problem, it has also normalized its existence, and too often served as a substitute for action.

On a rhetorical level, the language of “crisis” is both inappropriate and misleading, in that crises, by definition, do not persist. The Oxford English Dictionary defines crisis as a “time of intense difficulty or danger; time when a difficult or important decision must be made,” while the thesaurus also offers: “critical point”; “turning point”; “crossroads”; “crux”; “culmination”; “moment of truth”; “point of no return.”^{Footnote 107} The Merriam-Webster dictionary defines crisis as “an unstable or crucial time or state of affairs in which a decisive change is impending; a situation that has reached a critical phase.”^{Footnote 108} The Merriam-Webster thesaurus also offers “boiling point”; “breaking point”; “conjecture”; “crunch time”; “juncture.”^{Footnote 109} Common to these definitions is some measure of transience, and a tipping point. In the case of Indigenous mass imprisonment, neither holds true. Indigenous people have been imprisoned in mass numbers for decades, long before Gladue. The problem has not reached its highest point, and shows no signs of decisive change, turning point, culmination, or juncture.

The issue here is not simply that of inadequate definition but, rather, of a fundamental mischaracterization. The language of “crisis” suggests that Indigenous mass imprisonment is somehow exceptional or temporary, as crises are. Whereas in fact, like colonialism, Indigenous mass imprisonment is embedded in the Canadian legal system, it is an ordinary and predictable by-product of systemic and systematized colonial violence. As far back as 1999, the Supreme Court of Canada stated that reports about Indigenous incarceration rates were “disturbingly common.”^{Footnote 110} Twenty years out, we have come to expect the persistence of “crisis.” Part and parcel of the fabric of the Canadian legal system, Indigenous mass imprisonment, like the colonial structures that produce it, is “here to stay.”^{Footnote 111}

Writing of crisis as political discourse, Jessica Lawrence explains that a distinguishing feature of the language of crisis is its call for action.^{Footnote 112} Crisis, she maintains, demands a response or solution.^{Footnote 113} To speak of crisis, then, “is to evoke a moment in which decisions must be made; a moment of political opportunity.”^{Footnote 114} Colin Hay similarly speaks of crisis as a moment of transformation, “in which a decisive intervention can and perhaps must be made.”^{Footnote 115} Ulrich Beck maintains that a defining feature of the language of crisis is the impression that crisis can be overcome, or that reverting to a pre-crisis state is possible.^{Footnote 116} But the persistence of Indigenous mass imprisonment reveals that reverting to a pre-crisis state is neither viable nor realistic. To move away from crisis would require much more than a change in sentencing protocol; it would require a dismantling of the central tenets of the colonial state. As Chartrand writes: “Without changing the underlying colonial relationship, we not only ignore the ways that colonialism continues to exist today; we also continue to offer colonizing arrangements as part of the remedy.”^{Footnote 117} Gladue and Ipeelee may register as issuing a call to arms or ushering in decisive change, but in fact, both only offer the same colonial arrangements they criticize.

Nichols’ analysis of the Canadian legal system’s flawed understanding of Indigenous mass imprisonment is instructive here. As Nichols writes, critiques of mass incarceration have “insufficiently attended to the centrality of colonialism to the origins, scope, scale, and legitimation techniques of carceral power in North America.”^{Footnote 118} The depoliticized, dehistoricized detachment of Indigenous mass incarceration from the “longer colonial history of the state itself” has enabled it to be routinized, bureaucratized, and thus more “effectively and smoothly enacted.”^{Footnote 119} Ultimately, this approach has failed to meaningfully consider what Nichols identifies as the quintessentially territorial foundation of prison expansion.^{Footnote 120} And indeed, while both Gladue and Ipeelee make inroads in recognizing the systemic prejudices and widespread racism of the Canadian legal system—with Ipeelee also identifying colonialism and the legacy of residential schools—neither decision assumes responsibility for the production of Indigenous mass imprisonment as colonial violence. Even at their most progressive and laudable moments, and even as they criticize the Canadian legal system, both turn to that same system to resolve the problem.^{Footnote 121} They do so despite the fact that the legal system is responsible for producing not just Indigenous incarceration and alienation, but also persistent and normalized trauma, violence, death, and harm.^{Footnote 122}

In Scott Veitch’s analysis, this dual move is common to legal institutions attempting to reconcile large-scale suffering.^{Footnote 123} Such institutions, Veitch posits, operate simultaneously in two contradicting ways. On one hand, they organize responsibility for suffering by holding legal actors responsible for harm. Gladue and Ipeelee do this well. But on the other hand, and at the same time, they also distance responsibility by facilitating its dispersals and disavowal. In Veitch’s analysis, when legal institutions attribute responsibility for harms in ways that fail to respond to the conditions on which they operate—as Gladue and Ipeelee do—the effect is to distance responsibility for harm. Understanding this simultaneity, Veitch maintains, is central to understanding how seemingly neutral and well-meaning legal actors contribute to “normalizing the production of suffering.”^{Footnote 124}

Christie’s analysis of Canadian courts’ unwavering commitment to colonial narratives and colonial frameworks helps to make sense of this approach. Analyzing decisions involving Aboriginal rights and title, Christie identifies several moments at which the courts attempt to make sense “of the exercise of unbridled colonial power.”^{Footnote 125} In grappling with the exercise of state power, Christie demonstrates, the courts simultaneously justify and maintain its authority.^{Footnote 126} Bringing Christie’s insights to bear on Gladue and Ipeelee reveals the Court deploying a method of analysis that partakes in the proliferation of irresponsibility that Veitch identifies, and operates to reinforce the same “colonial conceptual framework.”^{Footnote 127} At the very moment they assign responsibility to the Canadian legal system for the production of “crisis,” Gladue and Ipeelee proliferate irresponsibility by turning to that same system to overcome the conditions it has created and continues to enforce. Veitch calls this the “transference” of responsibility,^{Footnote 128} that is, assigning responsibility to an institution that, by the Court’s own admission, is incapable of meaningfully assuming that responsibility. The effect is to disappear responsibility, and to normalize harm.

Where then, can the Canadian legal system turn? How can it come to terms with its own role in perpetuating the “crisis” it so adamantly disavows? Writing in a different setting, Johnny Mack urges a shift away from what he identifies as the normalized and un-reflexive absorption of colonial stories and perspectives.^{Footnote 129} A shift away from the language of “crisis” could reorient the legal understanding of Indigenous mass incarceration in the dominant Canadian legal discourse. In “The Crisis in Education,” Hannah Arendt writes of crisis as opportunity. For Arendt, crisis does not invite its critic to indulge in outrage, rather, it compels the critic “to explore and inquire into whatever has been laid bare of the essence of the matter.”^{Footnote 130} This task, she maintains, requires tearing away façades and prejudices, and trying to see things as they are.^{Footnote 131} To do otherwise is to indulge in crisis and, in Arendt’s analysis, turn crisis into disaster. “Simple, unreflective perseverance,” she writes, “whether it be pressing forward in the crisis or adhering to the routine that blandly believes the crisis will not engulf its particular sphere of life, can only, because it surrenders to the course of time, lead to ruin.”^{Footnote 132} To respond to crisis with “performed judgments”—as Gladue and Ipeelee do—is to sharpen the crisis and, in Arendt’s words, to forfeit the “opportunity for reflection it provides.”^{Footnote 133}

What opportunity for reflection does Indigenous mass imprisonment provide? What, to further echo Arendt’s words, is laid bare by the essence of this matter? At issue here is not only poor word choice but, far more profoundly, a deep-seated defensive anxiety that shapes the Canadian legal understanding of Indigenous mass imprisonment. This anxiety finds expression in and through the language of “crisis.” Its use operates to distance and disappear responsibility, reinforce colonial structures, and intensify and perpetuate suffering.

Moving away from the language of “crisis” will do little to dismantle the colonial structures that produce Indigenous mass imprisonment. A surface adjustment to the discourse that leaves the substantive situation untouched will only cause more harm. Such a shift will not decrease the relentless intensification of Indigenous incarceration, nor will it dismantle the colonial structures at its core. But a meaningful shift in the understanding of Indigenous mass incarceration—and the state’s central role in its production—might help move away from the unquestioned acceptance of colonial orderings. It might help instil responsibility rather than disappear it, and drive towards a more honest understanding of Indigenous mass imprisonment as colonial violence. As Leanne Betasamosake Simpson powerfully argues, the task of the colonial state is not to “save” Indigenous people, but to restructure itself in a way that does not continue to injure Indigenous people and dispossess their lands.^{Footnote 134} A shift away from the language of crisis might be a small step in this restructuring. At the very least, it might help unpack the defensive anxiety that haunts this field of law and place the legal understanding of Indigenous mass imprisonment on more candid, stable ground.