Implicating the System

Judicial Discourses in the Sentencing of Indigenous Women


Indigenous women continue to be overrepresented in Canadian prisons; research demonstrates how their overincarceration and often extensive experiences of victimization are interconnected with and through ongoing processes of colonization. Implicating the System: Judicial Discourses in the Sentencing of Indigenous Women explores how judges navigate these issues in sentencing by examining related discourses in selected judgments from a review of 175 decisions.

The feminist theory of the victimization-criminalization continuum informs Elspeth Kaiser-Derrick’s work. She examines its overlap with the Gladue analysis, foregrounding decisions that effectively integrate gendered understandings of Indigenous women’s victimization histories, and problematizing those with less contextualized reasoning. Ultimately, she contends that judicial use of the victimization-criminalization continuum deepens the Gladue analysis and augments its capacity to further its objectives of alternatives to incarceration.

Kaiser-Derrick discusses how judicial discourses about victimization intersect with those about rehabilitation and treatment, and suggests associated problems, particularly where prison is characterized as a place of healing. Finally, she shows how recent incursions into judicial discretion, through legislative changes to the conditional sentencing regime that restrict the availability of alternatives to incarceration, are particularly concerning for Indigenous women in the system.


“Elspeth Kaiser-Derrick’s work is an important read in light of the needs of truth and reconciliation. Her exploration of judicial discourses in the sentencing of Indigenous women reveal the multiple systemic failures of Canada’s justice system. What judge’s say and write is important because it reflects and refracts the inequalities and injustices that are embedded in our collective social order. Their words are demonstrative of the dire need for dramatic changes in Canada’s justice system. The book is a must read for all persons concerned with justice,criminal law and human rights.”

Richard Jochelson, Associate Professor in the Faculty of Law, University of Manitoba.

“An excellent treatment of pressing issues facing Indigenous women across Canada that I can recommend to anyone, both in legal circles and beyond.”

David Milward, The Ormsby Review

“The range of Kaiser-Derrick’s engagement with individual sentencing decisions provides a critical contribution to how sentencing decisions incorporate gendered understandings of Indigenous women’s historical and ongoing victimization and criminalization.”

Carmela Murdocca, Canadian Journal of Law and Society

"Kaiser-Derrick brings elusive systemic issues into focus. Above all, her work affirms the dignity and humanity of Indigenous women, the recognition of which can be lacking in the machinery of the criminal justice system."

Ellen Bolger, The Northern Review

About the Author

Elspeth Kaiser-Derrick was called to the Bar in British Columbia after articling at a criminal defence firm and is currently a Ph.D. candidate at the Peter A. Allard School of Law at the University of British Columbia.

Table of Contents

Introduction: Listening to What the Criminal Justcice System Hears
Ch 1. Pathways through Feminist Theories: Listening to What the Criminal Justice System Hears
Ch 2. Judicial Engagement with the Victimization-Criminalization Continuum
Ch 3. From the Victimization Overlap to Judicial Discourses about “Healing” through Imprisonment
Conclusion: Listening to Victimization Histories