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I am grateful to Patricia Barkaskas, Emma Cunliffe, Johnny Mack, Mo Pareles, Nimer Sultany, and the participants of the University of Toronto Critical Analysis of Law workshop for their invaluable insights and comments. Thank you also to the editors and anonymous reviewers of the Canadian Journal of Law and Society for their thoughtful comments on earlier drafts, and to Elora Bascello and Connor Bildfell for their excellent research assistance.
Introduction
In its 1999 decision in R v Gladue, the Supreme Court of Canada famously remarked that the incarceration of Indigenous people in Canada represents a “crisis.”1 In this landmark case, as well as in its 2012 follow up decision in R v Ipeelee,2 the Court altered the methodology for sentencing Indigenous people, with the goal of reducing incarceration rates, remedying injustice, and addressing systemic disparities. But in the twenty years since Gladue’s release, Indigenous mass imprisonment has only intensified. The gap between Indigenous and non-Indigenous people within corrections continues to grow, with Indigenous people routinely serving longer sentences under much harsher conditions of confinement. The injustices, inequalities, and prejudices that characterized the legal system in Gladue’s time continue to thrive. The “crisis,” as it were, persists.
While Gladue and Ipeelee did not meaningfully alter the Canadian incarceration landscape, they are not without impact. One of their most significant contributions has been to entrench the characterization of Indigenous mass imprisonment as “crisis” in Canadian legal discourse. Since Gladue’s release, courts, independent bodies of inquiry, the media, and others, have labelled and conceptualized Indigenous mass imprisonment as “crisis.” In this article, I analyze how this language has shaped the broader legal understanding of Indigenous mass imprisonment. My focus is not on specific iterations or uses, but rather on the cumulative impact of the language of “crisis” as deployed in the dominant Canadian legal discourse over the past twenty years. Viewed individually, some of the decisions, research reports, or media pieces surveyed below use the language of “crisis” in a thoughtful manner, in an effort to address the problem and usher in change. As a settler, I have deployed the language of “crisis” in these same well-meaning—albeit misdirected—ways. I suggest that however well-meaning these representations may be, their cumulative impact is...