The imposition of this system on Aboriginal peoples should be seen to violate Aboriginal peoples’ section 35 right to self-government in the administration of justice:

In the case of an imposed justice system, the promises made in treaty or the objectives of a justice system form the necessary backdrop for the determination of the breach.⁷³

The problems associated with the application of a foreign system to Aboriginal concepts of justice have been recognized and acknowledged by CSC itself:

… the underlying problem remains that there is a poor fit between native concepts of crime and punishment and the essentially non-aboriginal correctional model embodied in the Act.⁷⁴

The Supreme Court of Canada, in Gladue, has acknowledged the “rampant discrimination” experienced by Aboriginal people imprisoned in Canada:

…it must be recognized that the circumstances of aboriginal offenders differs from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation and many are substantially affected by poor social and economic conditions. Moreover as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors more adversely affected by incarceration and less likely to be “rehabilitated” thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination is so rampant in penal institutions.⁷⁵

The discrimination persists, despite the legislative enactment of section 4(h) of the CCRA which states that it is a principle of CSC “that correctional policies, programs and practices respect gender, ethnic, cultural and linguistic difference and be responsive to the special needs of women and aboriginal peoples, as well as to the needs of other groups of offenders with special requirements.” As well, sections 79-84 of the CCRA obligate CSC to provide programs designed particularly for Aboriginal people and empower CSC to make agreements with aboriginal communities for the provision of correctional services, to establish an Aboriginal Advisory Committee, and to facilitate the involvement of Aboriginal spiritual leaders and Aboriginal communities in parole plans and integration into Aboriginal communities.