Restorative Justice and Indigenous Courts Within the Penal Continuum: Rethinking Indigenous Over-Incarceration in Canada

Restorative justice has emerged as a comprehensive response to the over-incarceration of Indigenous peoples in Canada. Landmark developments – such as the 1999 Gladue decision and the creation of Indigenous People’s Courts (IPC) – have reshaped sentencing by integrating factors like discrimination and adverse socio-economic conditions. Beyond legal reform, restorative justice addresses colonial legacies and social inequalities. This article examines its role in recent Canadian initiatives – specifically the Royal Commission on Aboriginal Peoples and the Sentencing Reform Act (both enacted in 1996) – and draws on three months of fieldwork at the Indigenous People’s Court in Ottawa. The analysis focuses on the pivotal role of counseling and innovative restorative or communitarian programs within the IPC framework. Notably, many cases leading to trial do not stem from initial infractions but from failures to comply with conditional sentences under the Gladue principles – which emphasize diversion, probation, and “restoration” through counseling. The flexible notion of restoration – achieved by promoting resilience – facilitates ongoing behavioral profiling and supports emerging networks of experts. These mechanisms broaden the penal net by considering individual backgrounds more deeply and by expanding the range of interventions available that are not perceived as punitive sentences. It is proposed a nuanced perspective that views restorative justice and punitive measures as convergent, thereby revealing policy biases and contributing to the expansion of the penal system and its selectivity.