Indigenising and decolonising Canadian criminal law: examining the paradoxes inherent to the interactions between western and indigenous legal orders – from accommodation to self-determination

Despite the Supreme Court of Canada's rulings to improve the criminal sentencing process (R. v. Gladue, 1999; R. v. Ipeelee, 2012), the proportion of indigenous peoples in federal custody has skyrocketed to 33%, despite representing only 5% of the general population (Zinger et al., 2023). For nearly thirty years, Canadian criminal courts have been required to apply the so-called Gladue Principles by considering alternative sanctions adapted to the unique circumstances of indigenous peoples. The rationale is clear: for many indigenous offenders, Western punishment is incompatible with indigenous legal orders. However, how Indigenisation and decolonisation are being implemented in practice remains uncertain. Drawing from academic research, this article examines Indigenisation and decolonisation processes in Canadian criminal law over the past three decades. I notably analyse the processes of ‘accommodation’ and ‘incorporation’ within the criminal legal system, as well as indigenous-State ‘collaboration’ and indigenous ‘self-determination’ in parallel to the system. While Indigenising reforms of the criminal legal system are often perceived as ineffective and legitimising State hegemony, indigenous-led decolonising processes are usually not adequately supported or simply rejected. The path to overcome this paradox lies in the revitalisation of indigenous legal orders within, in collaboration with, and autonomously from the Western legal system.