Introduction

On the evening on 28 June 2017, as Canada prepared to celebrate its 150th anniversary, members of the Bawaating Water Protectors, an Indigenous environmental group based in Sault St. Marie, Ontario, attempted to set up a tipi on Parliament Hill—situated, as it is, on the unceded territory of the Algonquin people. The police intervened, arresting nine people, who were released several hours later. The group was then permitted to erect the tipi, but not on Parliament Hill itself: they were obliged to locate it near one of the entrances. As the festivities unfolded, the now dislocated and spatially marginalized tipi stood as a stark reminder that not all is settled and celebrated in the land now known as Canada. “We’re here to make people aware of the genocide that went on, the assimilations that went on. That is also a part of the history and that is the truth of Canada, unfortunately,” said Brendon Nahwegezhic, spokesperson for the group (Rabson 2017). Like other settler colonial nation-states, Canada was born from the violent displacement of Indigenous peoples from their lands, the denial of their sovereignty, systemic racism, and policies of forced assimilation—all legitimated through an intricate framework of European laws, a system of justice that was imposed to enable the policing, segregation, and containment of Indigenous bodies.

This colonial violence continues today, through, among other things, widespread boil-water advisories that remain in effect across reserves in Canada (Arsenault et al. 2018), the hardship and grief that has arisen from the discovery of mass unmarked graves of Indigenous children who were forced into residential schools (Martens 2021), the exponentially high rates of Indigenous children in the child welfare systems (Blackstock 2019), the thousands of missing and murdered Indigenous women, girls, and Two-Spirit+ people (National Inquiry into Missing and Murdered Indigenous Women and Girls 2019), the economically starved communities that continue to exist in Canada (Leonard et al. 2020), or the effects of “poverty by design” (Brittain and Blackstock 2015). Such colonial practices similarly take shape in varied criminal justice arrangements and are made evident in the death of Neil Stonechild and the many other the Starlight Tours where police leave Indigenous people at the outskirts of town to die of exposure (Green 2009; Rymhs 2018; Savarese, this volume); the sexualized violence and exploitation of Indigenous women by police (Viens 2019; Rhoad 2013; 2017); the high levels of Indigenous and Black incarceration across every penal jurisdiction in Canada (Marques and Monchalin 2020; Reece 2020); and many more as the contributors of this volume highlight. These conditions of injustice include higher security classifications (Cardoso 2020), longer stays in solitary confinement (Parkes 2015), higher rates of dangerous offender designations (Milward 2013), and more deaths in custody (Razack 2015).

Despite colonialism’s pervasive and violent reordering and the role of justice in its wake, it is often minimized in the public eye and current mainstream thought. Like the tipi erected on Parliament Hill—a symbol of a time passed, but still present—this ongoing colonial violence continues to be filtered and hidden. This book is a collection of essays that centre and disrupt settler colonial logics and practices, thus making visible and elucidating the many ways that the criminal justice system continues to colonize the people of the land and allowing readers to understand these processes better. By centring and making colonialism visible, this edited collection also seeks to unsettle the belief that colonialism and its attending logics and practices of segregation, assimilation, and elimination are historic or that they exert a neutral, inconsequential influence on the present.

To unsettle the Canadian criminal justice system is to first think about the specific characteristics of settler colonialism, whereby the “colonizers stay” (see Veracini 2013; Wolf 2006). Settler-colonial studies have been particularly useful, albeit not without criticism (see Shoemaker 2015), in thinking about the historical and contemporary context of settlement; or as Wolf (2006, 402) famously notes, to recognize that “invasion is a structure, not an event.” Settler colonialism is not just something of the past, but a persistent societal structure and an ongoing force in the pursuit of land and resources (Rowe and Tuck 2017; Stoler 2008). To unsettle, as is the aim of this text, then requires us to analyze and expose the settler colonial logics, practices, and structures that are historically and currently at play, including a criminal justice system that, as these chapters show, is directly and deeply implicated in ongoing patterns of cultural dispossession and land displacement. It is no coincidence such criminal justice trends are also well documented in other settler countries like Australia (Thalia and Blagg 2019), New Zealand (McIntosh and Workman 2017; Tauri and Deckert 2014), and the United States (Ross 2016). While acknowledging historic atrocities, this edited collection adds to the growing body of scholarly literature that is witnessing, documenting, problematizing, and making more visible the ongoing recursions of Canadian (in)justice and the ensuing historical amnesia of the state and much of its citizenry.

Perhaps most importantly, part of unsettling and moving past colonial structures is prioritizing and centring the insights and knowledge of those with the lived expertise of its practices, operations, and arrangements. As such, this collection also incorporates writing by Indigenous people who were sentenced to federal penitentiaries across Canada. In their vibrant texts, these authors highlight and outline the histories of colonial abuse and current penal and carceral arrangements for Indigenous people. They further illuminate a colonial project as directly experienced by those who are most impacted and targeted in the Canadian criminal justice system. This includes personal impacts from residential schools and state foster and child welfare systems, the experiences and treatment of Elders in prison, the appropriation of Indigenous spirituality in prison programs, and an account of the Supreme Court of Canada case with respect to the problematic use of risk assessment tools on Indigenous people (Ewert v. Canada, 2018). These invaluable insights are not only unsettling, but also serve as important and vital voices to counter the repressive colonial tides.

The edited collection is divided into four parts; each chapter collectively provides broad insights into different areas of the Canadian criminal justice system and the multiple ways that colonialism takes shape throughout settler justice. The collection begins with a poem written by New Brunswick-based poet, Chevelle Malcolm, in tribute to Pamela George, an Indigenous woman whose life was violently taken by two white men and then undermined and trivialized by the criminal justice system. The poem acknowledges the ongoing violence experienced by Indigenous communities through the murders and disappearing of Indigenous women and men. Part I, “Settler Colonialism and Canadian Criminal Justice in Context,” provides both historical and socio-political context of colonialism in the Canadian criminal justice system and its impacts on Indigenous and Black people. While most chapters explicitly focus on forms of colonization that affect Indigenous People, the first chapter by Viviane Saleh-Hanna considers the effect of colonization on Black people in the settler country. Although the chapter is unique, it also sets the stage for the book by exposing the reality and erasure of Canada’s practices of enslaving Black people and demystifying and challenging the notion of Canada as the “truth north strong and free.” With a focus on enslavement, this chapter highlights the many violent underpinnings of colonial logics and the settler nation-state’s erasure of colonial wrongdoings. Andrew Woolford also explores Canada’s colonial histories of the present through an investigation of Canadian Indian residential schools that were adapted from the penal colony in Mettray, France; a colony that Foucault (1977, 416) himself identified as signalling the shift to the carceral. Through a process of refamalialization, intervention not only disconnected Indigenous children from families, but also forced new associations to staff, school, and nation, thus targeting the Indigenous family as a site for group destruction. Clint Augustine McIntosh highlights this targeted destruction and reveals the everyday and ongoing violence of colonialism through a compelling account of his trajectory from childhood to his eventual incarceration. The author tells his story to document the carceral obscenities endured by Indigenous people. It is also a story he tells out of love for his children so that they may one day understand the road he traveled. Kevin Walby and Justin Piché discuss the Canadian state’s current practices of colonial erasure by examining the nation’s mythical colonial histories produced in Canadian police museums. The authors argue that the museums position the police as ideal members of a benevolent settler state. Like the “true-north-strong-and-free” trope that circulates in Canada, the representations in these museum sites misconstrue colonial relations as one of benevolence, while maligning Indigenous people. The authors reflect on how the curation and representational work within such cultural spaces could be done differently to better align with the Truth and Reconciliation Commission (2015) Calls to Action. Stands with the Wolves (Nolan Turcotte), who is currently incarcerated in a medium-security prison in Alberta, challenges us to rethink our ideas of civility and progress through a poem. The author exposes the hypocrisy of colonialism by turning the gaze and scrutiny back onto white colonizers and their practices of savagery, recently demonstrated through the acquittal of Gerald Stanley.

Building on this context of settler colonialism in the Canadian state, Part II, “The Colonial Violence of Criminal Justice Operations,” considers the blatant colonial violence that continues through contemporary criminal justice practices and is often ignored or legitimated by the public and state. Where the institutions and language may have changed over time, passing from the Indian agent to departments of justice, public safety, child welfare, and other newly developed departments, the logics, practices, and impacts continue to reflect ongoing colonial structures and relations. One obvious colonial violence has been the exposure of police sexualized violence against Indigenous women. Carmela Murdocca explores such police violence against Indigenous women in Val-d’Or, Québec. Murdocca considers how media testimony by Indigenous women offer accounts of the violence state officials in white settler Canada engage in while policing and which also calls the state to account in a culture of redress. David MacDonald unpacks some of the public reactions to the trial and acquittal of Gerald Stanley for the murder of Colten Boushie, a 22-year-old Nehiyaw (Cree) man. The author analyzes the trial against a backdrop of settler colonialism, racism, and genocide in the Canadian state to contextualize some of the fallout from the acquittal, the reactions to an article he published on the case, and the continued divide between many settlers and Indigenous people over what constitutes justice and dignity. In a similar vein of exposing the blatant but often ignored colonial violence, Jeff Shantz investigates public and media accounts of police use of lethal force or, as the author more aptly denotes, police killings of Indigenous people. Highlighting the historic role of the police in “clearing the plains” in the Canadian state (see Daschuk 2013), the author exposes the ongoing heightened states of violence and death that exist for Indigenous people at the hands of police, as well as the ensuing lack of police accountability for these acts. Shifting our attention toward life in prison, Paul Hachey reminds us of the significance and importance of Elders in the teachings of traditional medicines and spiritual practice and guidance in the lives of Indigenous people. When coupled within a prison environment, the Elders delivering those ceremonies and protocols are often the targets of institutional abuse, subsuming any meaningful spiritual practices within punitive carceral arrangements or abandoning such practices altogether. In looking at incarcerated Indigenous women, Pam Palmater also reveals the racialized, gendered, and patriarchal ordering of the prison. Constrained by the ongoing socio-economic deprivations created through settler colonialism, Indigenous women are made more vulnerable to violence, especially incarceration. As the author argues, this ongoing dispossession of women through violence and imprisonment continues to attack the heart of Indigenous nations. While these chapters highlight the persistence of settler colonial violence throughout the Canadian criminal justice system, the next section is particularly telling in how it is made possible and invisible.

Part III, “The Bureaucratic Trappings of Colonial Justice,” exposes the more hidden forms of violence created through the everyday practices and operations of policy frameworks, legislative imperatives, and bureaucratic norms. This kind of bureaucratic violence is evident in Gillian Balfour’s chapter in discussing two court cases R. v. Moostoos and R. v. Ipeelee. Through these case studies, the author reveals how the tropes of addiction and alcoholism remain at the centre of what the law constitutes as Indigenous people’s risk to reoffend. When these tropes dominate discourses in the courts and disproportionately impact Indigenous women, incarceration emerges as a legitimate response while obfuscating the gendered violence the women experience. Jeff Ewert discusses his own Supreme Court of Canada case (Ewert v. Canada, 2018) on the problematic and discriminatory use of risk assessment instruments found in the prison. The author outlines the trajectory and details of his case, challenging correctional risk assessment tools and showing how they discriminate against Indigenous people, resulting in higher prison security classifications and subsequently lower parole eligibility. Kim Pate shares her oral and written submission made to the Liberal Senate Forum on Women in Prison which took place on 18 April 2018, in Ottawa, Ontario. Focusing on the now published interim report on the Human Rights of Federally Sentenced Persons (Bernard 2018), the author discusses the many social, economic, gendered, and political disadvantages of incarcerated peoples and the impacts prisons has on their rights. Charles Jamieson outlines how Correctional Service Canada has appropriated Indigenous spiritual traditions and ceremony to suit a more insidious form of assimilation through correctional programming. The author aptly points out that healing cannot and does not happen in a place of “correction.” El Jones is a poet, journalist, teacher, and activist living in Halifax, who wrote “Shit: A Poem Dedicated to All Incarcerated Sisters” in solidarity with those who stand against the system by virtue of their confinement or dispossession. The poem reminds us of how resistance often comes in the most creative forms and artistic expressions and that women are strong, even in the face of oppression.

The chapters in Part IV, “Creative Resistances and Reimagining Settler-Colonial Justice,” constitute the last section of this book. These chapters build on the creative inspiration drawn from the proceeding chapters and offer alternative and creative conceptualizations and practices of justice from an anti-settler colonial perspective. Lorinda Riley, in comparing the United States and Canada, evaluates the current frameworks utilized by Indigenous nations in the delivery of tribal justice and how aspects of each model can learn from the others to further Indigenous self-determination over justice. Josephine Savarese examines what the artwork on the “Starlight Tours” of a Métis Regina-based artist, David Garneau, brings to thinking about colonial hauntings, settler colonialism, and criminal justice systems. This type of artwork witnesses the ongoing violence of settler colonialism while also destabilizing conceptual frameworks in ways that allow the viewer to imagine a justice system that would better serve Indigenous peoples. Evidence, she argues, is a counter-archive that unsettles colonial archives, such as judicial inquiries. Jillian Baker explores the intersections of colonialism, fatherhood, and incarceration in a local art show. The author considers how artwork is a vehicle for anti-carceral and decolonial resistance. Vicki Chartrand, in looking at missing and disappeared Indigenous women, considers how Indigenous people build community in their pursuit of justice. The author highlights how the grassroots work reflects the many things justice is and needs, well beyond what a “criminal” justice can provide. Mark Jackson evaluates what justice might look like in the context of decoloniality, posthumanism, and Indigenous studies through a pluriversal approach. Pluriversality offers a way to recognize justice across many worlds, beyond a politics of critique and reconciliation, where we can attend to the relationalities of sociality, story, kinship, individuality, responsibility, land, and law. The chapters in this concluding section offer diverse considerations of how to address the many problematic aspects of and encounters with current colonial models of justice identified throughout the book. It is clear that any actions moving forward must imagine justice as Indigenous-based and led and must operate outside of colonial criminal justice systems.

It is not enough to only point out the ongoing colonizing tendencies of the state and justice apparatuses. To unsettle is to also rethink our current social and justice arrangements to counter colonial recursions and offer initiatives and possibilities for moving forward. Possibilities such as anti-colonial abolition and alternative justices are tacitly and explicitly outlined in this collection and further highlighted and discussed in our conclusion. This is a timely book given the current intellectual, political, and public climate around the Canadian criminal justice system and international movements to cancel, defund, and abolish. This edited collection captures how so-called justice becomes another tool through which settler colonialism in Canada is articulated. This collection is also a call to action in an important and unprecedented moment in history where calls for change are resonating throughout the land now known as Canada, and internationally, for radical change. The tipi erected just outside the gates of Parliament Hill not only reminds us of the colonial violence both past and present but also signifies a resurgence in the demands for a world beyond colonial structures. It invites readers to join the efforts to cultivate and build this alternative.