Overrepresentation of Indigenous People in the Canadian Criminal Justice System: Causes and Responses

Executive Summary

This literature review addresses the overrepresentation of Indigenous people in the Canadian criminal justice system.Footnote 1 It examines the extent of overrepresentation, its underlying causes, and some initiatives taken to address the issue. The report also identifies gaps in the efforts to address overrepresentation and suggests potential ways to mitigate the problem. Understanding overrepresentation along these lines should provide policy makers and program managers with useful information to assist in their work.

 The vast overrepresentation of Indigenous people in the criminal justice system has received attention from high levels. This report provides assessments of the problem by the Aboriginal Justice Inquiry of Manitoba (1991), The Royal Commission on Aboriginal Peoples (1996), by Justice Frank Iacobucci in his report on the Independent Review of First Nations Representation on Ontario Juries (2013), and by the Supreme Court of Canada in R. v. Gladue (1999), wherein the Court stated in reference to overrepresentation “[t]he figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system” (688).

The incarceration numbers for Indigenous people are worsening year by year. Indigenous inmates in federal institutions rose from 20 percent of the total inmate population in 2008-2009 to 28 percent in 2017-2018, even though Indigenous people represented only 4.1 percent of the overall Canadian population (Department of Justice Canada 2018a). Similarly, the percentage of federally incarcerated Indigenous women rose from 32 percent of the female inmate population to 40 percent (ibid.). While the proportion of Indigenous incarceration has risen substantially, the overall inmate federal population (number) has risen only slightly.

In 2016-2017, Indigenous youth (12 to 17 years) accounted for 8 percent of all youth in the provinces and territories (Department of Justice Canada 2018a).Footnote 2 However, in 2016-2017 they accounted for 46 percent of young people admitted to the corrections system (ibid.). The overrepresentation of Indigenous youth was even more disproportionate among girls. In 2016-2017, Indigenous female youth accounted for 60 percent of all female youth admitted to provincial and territorial corrections systems (Statistics Canada, 2018a).

Reasons for the vast overrepresentation of Indigenous offenders and victims in the criminal justice system are discussed in this report. The Royal Commission on Aboriginal Peoples (RCAP) identified three viable explanations, each of which has a degree of currency in government thinking and academic literature: colonialism, socio-economic marginalization, and culture clash. Systemic discrimination against Indigenous people is also a serious problem.

The RCAP Commissioners identified the ongoing impacts of colonialism on Indigenous peoples and made direct links between the effects of colonialism and criminal behaviour. They also connected colonialism directly to systemic discrimination and, to socio-economic marginalization and culture clash. The literature and Commissions of Inquiry, such as the Truth and Reconciliation Commission of Canada (2015), confirm the removal of people from their traditional lands, restrictive legislation such as the Indian Act, and, most especially, residential schools have taken a severe toll on Indigenous individuals, families and communities over many years.

Systemic discrimination occurs throughout the criminal justice system, including in policing, courts and corrections. It was identified as serious by the Supreme Court in both R. v. Gladue (1999) and R. v. Wells (2000).

Policing is problematic as Indigenous people are both over-policed and under-policed. In other words, they are often targeted by police but they are also often neglected when assistance is needed (Rudin, 2007). Research also suggests community policing – which is the most appropriate model for Indigenous communities – has not always been a priority approach for police services responsible for Indigenous communities, including the Royal Canadian Mounted Police (RCMP) (Clark, 2007).

With respect to courts, Indigenous people continue to be sentenced to custody in comparatively greater proportions than non-Indigenous offenders. They are also denied bail more frequently and therefore held in remand (applied to adults) or pre-trial detention (applied to youth) more frequently and for longer periods than non-Indigenous offenders. An important related factor is that Indigenous accused have a greater tendency to breach their conditions, whether bail conditions or probation conditions. This has significant implications for elevating Indigenous incarceration numbers.

The corrections system is also characterized by discriminatory policies and practices. The Office of the Correctional Investigator (OCI) has repeatedly expressed concerns about the high rates of incarceration of Indigenous people in the federal system and the problematic implementation of sections 81 and 84 of the Corrections and Conditional Release Act, which are intended to address overrepresentation by involving communities in the corrections process (OCI, 2018).

RCAP stressed the significance of culture clash. In broad terms, Indigenous cultures – which are many and diverse in Canada – tend to view wrong-doing and justice differently than non-Indigenous cultures. They are more likely to focus on rehabilitation, community reintegration, and healing than on adversarial confrontation, finding of guilt, and punishment that currently characterize the mainstream justice system. As well, Indigenous cultures often have normative behaviours that can be misinterpreted by justice officials and jury members not familiar with the particular culture. The literature is clear that approaches to community-based justice must be appropriate to the culture concerned.

The report addresses three sets of policies and initiatives designed and implemented with a view to addressing overrepresentation: sentencing legislation and Supreme Court of Canada decisions, Gladue Courts, and community-based initiatives and government relations.

Bill C-41, a bill to amend the Criminal Code with regard to sentencing, was passed in 1995 and the new law came into force in 1996. One significant purpose of the legislation was to reduce the overrepresentation of Indigenous offenders in custody. Section 718.2(e) specifically addressed the issue as follows: “A court that imposes a sentence shall also take into consideration the following principles: (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders” (emphasis added). Subsequent to the enactment of section 718.2(e), a case in British Columbia tested the applicability of the law. On appeal, the Supreme Court of Canada rendered its ruling in R. v. Gladue, and provided more concrete direction for sentencing judges. The Court’s judgement was valuable in several ways, including the fact that it recognized (i) the very serious reality of Indigenous overrepresentation, (ii) the existence of systemic discrimination throughout the justice system, and (iii) the need for culturally relevant restorative justice programs as alternatives to jail. However, section 718.2(e) and the Gladue judgement still did not provide adequate clarity for the judiciary. The Supreme Court attempted to rectify that concern in R. v. Ipeelee, wherein the Court reaffirmed the requirement for judges to adhere to s. 718.2(e) when sentencing Indigenous offenders.

Gladue Courts are generally characterized by certain goals relevant to the intent of s. 718.2(e) and the Supreme Court of Canada decisions in Gladue and Ipeelee. In order to achieve these goals, a Gladue Court requires the provision of detailed information regarding the offender to the presiding judge. Another essential component of the Gladue process is the availability and accessibility of culturally appropriate rehabilitative programs, often referred to as restorative or community-based justice programs. This presents a challenge for many Canadian courts as relevant programs, especially those designed for Indigenous people, are still lacking in much of the country.

Gladue has not had the positive results many had expected. Incarceration statistics and relevant case law appear to confirm this. While there has been increased judicial awareness of Gladue principles since 2010, there remain disagreements regarding some aspects of Gladue; for example, its application to bail hearings. In this regard, Toronto’s Gladue Court (Aboriginal Persons Court) at Old City Hall and the Aboriginal Youth Court in Toronto were established in 2001 and 2011, respectively, and are seen as success stories (Clark, 2016a; Clark, 2016b).

The Department of Justice Indigenous Justice Program (IJP) supports Indigenous community-based justice programs that offer alternatives to mainstream justice processes in appropriate circumstances. Evaluation results have been encouraging.

Despite these positive advancements, the overrepresentation of Indigenous persons in the criminal justice system, especially in correctional facilities, continues to rise. Experts and expert bodies such as RCAP, the Truth and Reconciliation Commission (TRC), and the Supreme Court argue that overcoming historic and persistent challenges should be the first goals of governments, as well as of Indigenous organizations and communities. Progress has been made in overcoming those challenges. Further progress will ultimately set the conditions whereby justice policy will truly be able to make positive and long lasting changes for Indigenous people. Overrepresentation might then become a thing of the past.

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