Indigenous People in Criminal Court in Canada: An Exploration Using the Relative Rate Index

1. Introduction

Canada is home to three distinct Indigenous peoples, namely First Nations, Inuit and Métis. Indigenous peoples have faced numerous challenges resulting from the country’s colonial history. Today, they continue to be confronted by the legacy of this history, which has lead to marginalization and systemic discrimination in various social spheres.

The overrepresentation of Indigenous people as both victims/survivors and convicted persons in the criminal justice system (CJS) is well documented (Boyce 2016; Roy & Marcellus 2019; Malakieh 2020). However, there are important information and data gaps pertaining to the representation of Indigenous people in certain areas of the CJS, namely at the policing and criminal court stages.

This study contributes to the existing literature by providing the first estimates of Indigenous representation among accused in Canadian criminal courts. This work also provides an indication of the extent to which Indigenous accused experience different and disproportionate outcomes, relative to White accused, at various stages of the Canadian criminal court process. The research addresses four key objectives: 1) identify whether the criminal court process itself contributes to the overrepresentation of Indigenous people in the CJS; 2) identify disproportionality in court outcomes of Indigenous accused, compared to White accused, at key stages/decision points of the criminal court process; 3) identify whether other sociodemographic variables (e.g., sex and age group) affect the level of disproportionate outcomes experienced by Indigenous people at key stages/decision points of the criminal court process; and 4) identify areas that warrant further exploration and data development.

This work was part of the Department of Justice Canada’s commitment to review the CJS and broader efforts to identify and address data gaps that hinder evidence-based decision-making. This work also aims to respond to the Truth and Reconciliation Commission of Canada’s Call to Action 30, to monitor, evaluate, and report on progress made in addressing the issue of Indigenous overrepresentation in the CJS (TRC 2015a).

Relative rate indexes (RRIs) were calculated to compare court outcomes of Indigenous accused to those of White accusedFootnote 1 at key stages/decision points of the criminal court process. The RRI method involves comparing the rate with which a selected group (Indigenous accused) experiences a court outcome (e.g., guilty finding, custodial sentence) to the rate of a comparison group (White accused) experiencing that same outcome. For each court stage/decision point, the RRI provides an indication of the extent to which the rate at which Indigenous accused experience a particular court outcome is higher than, similar to or lower than the rate for White accused.

This method has been used in different countries to assess the disproportionate level of contact of minority ethnic groups with the CJS. For example, the United States has used the RRI method to identify and monitor the extent of disproportionate contact of ethnic minority youth with the youth justice system (Rovner 2014). The United Kingdom also recently used this method to identify the extent of disproportionate contact of ethnic minority groups at key stages of the CJS (Uhrig 2016). This is the first time that this method has been applied to Canada’s CJS.

Finally, it is important to note that RRIs only indicate the level of representation at specific junctures of the criminal court process. They do not take into account various factors that may explain the results, such as individual or offence characteristics that may have an impact on the court outcomes examined. For instance, this study did not assess whether Indigenous and White accused differed in the types of offences they allegedly committed, which may also affect the likelihood of encountering a court outcome, such as being sentenced to custody. Furthermore, the national level RRIs do not account for jurisdictional differences in court proceedings and reporting standards of court outcomes. Finally, RRIs do not provide an explanation of why disproportionality may be occurring at specific stages of the criminal court process. To address these questions, the report references existing studies that provide insight as to why the observed outcomes may be occurring. In other instances, the report identifies the need to undertake additional studies to better understand the outcomes.

Context of the overrepresentation of Indigenous people in the criminal justice systemFootnote 2

The focus of this report is not to examine the issue of overrepresentation of Indigenous people in the CJS compared to their representation in the Canadian population, but rather to better understand the differential and disproportionate outcomes of Indigenous accused compared to White accused in criminal courts. However, it remains important for readers to understand the broader context in which these disproportionate outcomes may be occurring, including the factors that have led to overrepresentation.

Indigenous people are overrepresented in Canada’s CJS as both victims/survivors and convicted persons. They are more likely than White people to self-report being victimized (Boyce 2016).Footnote 3 Indigenous people are also overrepresented among victims and accused of homicide (Roy & Marcellus 2019). Data also show that Indigenous people are overrepresented in custody compared to their representation in the general population (Malakieh 2020). The issue has been the subject of multiple commissions, inquiries, task forces,Footnote 4 academic studies, Supreme Court decisions,Footnote 5 legislative amendmentsFootnote 6 and social programsFootnote 7 for the past several decades.

The overrepresentation of Indigenous people in the CJS is a complex issue that can only be understood through consideration of the social context in which it is occurring. It is impossible to detail in the scope of this report all of the contextual factors which have contributed to the current overrepresentation situation. However, a number of studies and literature reviews have identified key contributors, namely Canada’s colonial history, socio-economic marginalization, systemic discrimination and cultural differences (i.e., Indigenous cultures and worldviews differing from the western philosophy of the CJS) (Clark 2019; RCAP 1996; Rudin n.d.).

Colonial history

Colonialism has been reported as one of the most fundamental underlying causes of Indigenous overrepresentation in the CJS (RCAP 1996). Canada’s colonial history has led to territorial dispossession, intergenerational trauma, socio-economic marginalization, systemic discrimination and cultural alienation (Chansonneuve 2005; Clark 2019; Hansen 2012; Jackson 1988; RCAP 1996; Rudin n.d.). The implementation of assimilation policies and practices, such as the residential school system, the removal of Indigenous children from their families and ongoing child welfare practices, have led to the loss of family and community ties. The intergenerational impacts of this colonial history continue to have profoundly negative consequences on the lives of Indigenous people today, which for some have resulted in high rates of physical and mental health issues, substance use and addiction, cognitive impairment, interpersonal violence, suicide, and involvement in the CJS (Chansonneuve 2005; Clark 2019; Ross n.d.).

Socio-economic marginalization

Although many people involved in the CJS face high levels of socio-economic marginalization, Indigenous people experience marginalization that is compounded by the impact of colonialism (RCAP 1996). Indigenous people have a higher unemployment rate and lower levels of education attainment relative to White people (Moyser 2017). The literature also shows that Indigenous people are disadvantaged in terms of housing conditions (Statistics Canada 2017) and health care (Clark 2019). All these factors, also known as social determinants of crime,Footnote 8 have resulted in differential social outcomes among Indigenous people, including limiting their opportunities and making them at greater risk for involvement in the CJS (Clark 2019; LaPrairie 1990; RCAP 1996; Rudin n.d.; Wesley-Esquimaux & Smolewski 2004).

Systemic discrimination

Systemic discrimination within the CJS has been identified as a serious issue by the Supreme Court of Canada (R v Gladue 1999; R v Wells 2000; R v Ipeelee 2012) and various commissions and inquiries. Although available data are limited, findings from various studies have highlighted the impacts of systemic discrimination at various stages of the system. For the most part, these have resulted in differential outcomes for Indigenous people, contributing to their overrepresentation in the CJS. For example, Indigenous people have been found to be over-policed, meaning that police are more actively present in Indigenous communities than other communities, resulting in Indigenous people being more likely to be arrested and charged (Clark 2019; Rudin n.d.). They have also been found to be under-protected in that Indigenous people do not have the same access as White people to police assistance and support when required (McGlade 2010; National Inquiry into Missing and Murdered Indigenous Women and Girls 2017). Indigenous people are also more likely to be admitted to custody than White people (Malakieh 2020). While in custody, they spend a disproportionate amount of time in segregation, are more likely to be classified as higher risk and to be denied parole (Office of the Correctional Investigator Canada 2014; Department of Justice 2017a).

Cultural differences

Western and Indigenous worldviews on justice, although similar in some regards (i.e., they include similar principles of deterrence, denunciation, and rehabilitation), differ in their perceptions of wrongdoing or harm and the approaches to justice (Chartrand & Horn 2016). Indigenous justice focuses on relationships, restoring peace and balance within the community, and addressing harm through healing and reintegration (Chartrand & Horn 2016; Clark 2019; Commission on First Nations and Métis Peoples and Justice Reform 2004). In comparison, although Western approaches can include restorative justice principles, they generally tend to be less relational as crimes are considered to be committed against the State and not the individuals harmed. These different views and concepts of justice have lead to further trauma and overrepresentation of Indigenous people in the CJS (Clark 2019; RCAP 1996; Rudin n.d.).