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

Overrepresentation as a Critical Issue

The overrepresentation of Indigenous people in the criminal justice system has received attention from high levels. Since 1989, eleven Royal Commissions or Commissions of Inquiry have addressed the issue of Indigenous justice either directly or as one among many questions regarding Indigenous people in Canada. Footnote 4 Despite the research and policy recommendations resulting from these inquiries, academia, and other sources, the problem of Indigenous overrepresentation continues and, in some ways, continues to worsen.
The final report of the Aboriginal Justice Inquiry of Manitoba unequivocally summed up the relationship between Indigenous people and the justice system in the following statement:

The justice system has failed Manitoba’s Aboriginal people on a massive scale. It has been insensitive and inaccessible, and has arrested and imprisoned Aboriginal people in grossly disproportionate numbers. Aboriginal people who are arrested are more likely than non-Aboriginal people to be denied bail, spend more time in pre-trial detention and spend less time with their lawyers, and, if convicted, are more likely to be incarcerated…. It is not merely that the justice system has failed Aboriginal people; justice has also been denied to them. For more than a century the rights of Aboriginal people have been ignored and eroded (Aboriginal Justice Inquiry of Manitoba, 1991: 1).

The Royal Commission on Aboriginal Peoples (RCAP) concurred in the Manitoba Inquiry’s findings and recommendations and extended the failure of the justice system to all Indigenous people in Canada, not just those living in Manitoba:

[t]he current Canadian justice system, especially the criminal justice system, has failed the Aboriginal people of Canada – Indian, Inuit and Métis, on-reserve and off-reserve, urban and rural, in all territorial and governmental jurisdictions” (RCAP, 1996: 27).

In his report on the Independent Review of First Nations Representation on Ontario Juries (2013), the Honourable Frank Iacobucci wrote:

[i]t is also regrettably the fact that the justice system generally as applied to First Nations peoples, particularly in the North, is quite frankly in a crisis. If we continue the status quo we will aggravate what is already a serious situation, and any hope of true reconciliation between First Nations and Ontarians generally will vanish. Put more directly, the time for talk is over, what is desperately needed is action (2013: 1).

The Supreme Court of Canada in R. v. Gladue noted that overrepresentation data are both startling and an effective indication that relations between Indigenous people and the justice system are seriously flawed. The Court stated “[t]he figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system” (R. v. Gladue, [1999] 1 S.C.R. 688).

The Truth and Reconciliation Commission of Canada (TRC) listed eighteen Calls to Action aimed specifically at addressing gaps in the justice system with respect to Indigenous people, as well as another three Calls to Action aimed at equity for Indigenous people in the legal system (TRC, 2015a).

Finally, and most importantly, the seriousness of the problem has been clearly expressed by the many Indigenous individuals, organizations and leaders who shared their views and experiences with the inquiries noted above and who intervened in Supreme Court cases such as Gladue.

A further point worth noting at the outset is that Indigenous people in Canada, whether status, non-status, Métis, or Inuit, increasingly live in urban settings (see Appendix). According to Statistics Canada (2017a), in 2016 51.8 percent of the total Indigenous population lived in a metropolitan area of at least 30,000 people. From 2006 to 2016, the number of Indigenous people living in a centre of this size increased by 59.7 percent (Statistics Canada 2017a). Statistics Canada explains the increasing urban population results from multiple factors, including demographic growth in both urban and non-urban settings, mobility, and changing patterns of self-reported identity (ibid.). Thus, while many Indigenous people continue to live in rural and remote northern communities, the stereotype of Indigenous people living predominantly in isolation no longer holds true, a fact that has significant implications for policy development in most social arenas, including criminal justice.