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

Overrepresentation: The Nature and Extent of the Problem

Failures of the criminal justice system for Indigenous people are manifested in many ways, perhaps most notably in the extreme overrepresentation of Indigenous individuals as incarcerated offenders. This can be demonstrated in two ways: by examining the Indigenous inmate population as a proportion of the total inmate population; and by looking at the comparative rates of Indigenous incarceration and changes in those rates.

The 2017-2018 Annual Report of the Office of the Correctional Investigator (OCI) pointed to increasing numbers of incarcerated Indigenous people. Indigenous inmates in federal institutions rose from 20 percent of the total inmate population in 2008-2009 to 28 percent in 2017-2018, while representing only 4.1 percent of the overall Canadian population. Similarly, the percentage of federally incarcerated Indigenous women rose from 32 percent of the female inmate population to 40 percent. While proportions of Indigenous incarceration have risen substantially, the overall inmate population (Indigenous and non-Indigenous) has risen only slightly. The Correctional Investigator stated:

In the ten-year period between March 2009 and March 2018, the Indigenous inmate population increased by 42.8% compared to a less than 1% overall growth [in the total adult custodial population] during the same period. As of March 31, 2018, Indigenous inmates represented 28% of the total federal in-custody population while comprising just 4.3% of the Canadian population.^{Footnote 5} The situation continues to worsen for Indigenous women. Over the last ten years, the number of Indigenous federally sentenced women increased by 60%, growing from 168 in March 2009 to 270 in March 2018. At the end of the reporting period, 40% of incarcerated women in Canada were of Indigenous ancestry. These numbers are distressing. (OCI, 2018: 61)

The Department of Justice Canada (2018c) has examined trends in adult federal custody populations based on data points for the last three census years (2006, 2011, and 2016).^{Footnote 6} The Department’s report draws a number of conclusions, including the following that relate directly to adult Indigenous individuals admitted to federal correctional institutions:

Although the incarceration rates for both Indigenous and non-Indigenous men have decreased over the past decade, the rate of Indigenous male offenders remains eight times higher than that of non-Indigenous men. The number of Indigenous male offenders continues to increase while the number of non-Indigenous male offenders has decreased slightly.
The incarceration rates and total numbers for both Indigenous and non-Indigenous women have increased over the past decade; the incarceration rate of Indigenous women continues to be much higher (12.5 times) than that of non-Indigenous women. (Department of Justice Canada, 2018c)

Statistics Canada has provided data that expand on the overrepresentation issue by addressing provincial and territorial corrections, as well as federal corrections. In 2016-2017, Indigenous adults accounted for 28 percent of admissions to provincial and territorial correctional services and 27 percent of admissions to federal correctional services (Statistics Canada, 2018a).^{Footnote 7} Yet they represented only 4.1 percent of the total Canadian population (ibid.). According to Statistics Canada:

An admission is counted each time an individual begins any type of custody or community supervision program. Aboriginal adults represented 4.1% of the Canadian adult population in 2016/2017, while accounting for 28% of admissions to provincial/territorial correctional services and 27% of admissions for federal correctional services. In comparison, in 2006/2007, Aboriginal adults accounted for 21% of admissions to provincial and territorial correctional services (excluding Prince Edward Island and the Northwest Territories) and 19% to federal correctional services. (Statistics Canada, 2018a)

Overall adult admissions to federal institutions (Indigenous and non-Indigenous adults combined) grew less than one percent in 2018. However, Statistics Canada data indicate admissions of Indigenous adults to federal correctional services increased significantly between 2006-2007 and 2016-2017 to 27 percent. The proportion of Indigenous adult admissions to provincial and territorial institutions was slightly higher at 28 percent in 2016-2017 (ibid.).
The numbers for Indigenous youth involved in provincial and territorial correctional services are even more serious:

Aboriginal youth accounted for 46% of admissions to correctional services in the 10 reporting jurisdictions in 2016/2017, while representing 8% of the general youth population in those same jurisdictions. Aboriginal youth are overrepresented in both custody and community supervision, accounting for 50% of custody admissions and 42% of community supervision admissions. Aboriginal females accounted for a greater proportion of custody admissions among youth relative to their male counterparts. Aboriginal female youth accounted for 60% of female admissions, while Aboriginal male youth made up 47% of male youth admissions. (Statistics Canada, 2018a)

A telling way to see the trend to higher Indigenous incarceration numbers is to compare percentages of adult Indigenous admissions to provincial and territorial correctional services by type of supervision between 2012-2013 and 2016-17. These numbers represent the percentage of Indigenous inmates as a proportion of the total inmate population. It is also important to remember that the Indigenous population as a percentage of the overall Canadian population was only 4.1 percent in 2016-2017 (Statistics Canada, 2018a).

Between 2013-2014 and 2016-2017, total Indigenous admissions to custody rose from 25 percent of total admissions to 30 percent. Sentenced admissions rose from 26 percent to 30 percent. Remands rose from 23 percent to 29 percent. And other custodial statuses rose from 32 percent to 33 percent. (Statistics Canada 2016a; Statistics Canada, 2017a) ^{Footnote 8}

A number of significant points arise from these numbers. First, Indigenous admissions to custody are substantially higher than non-Indigenous admissions in all categories. Second, admission percentages for Indigenous offenders increased in all categories between 2012-2013 and 2016-2017. This means, of course, that the admission percentages for non-Indigenous offenders decreased in all categories. Third, when one considers the relative overall Indigenous population size, the differences are striking. For example, while representing 4.1 percent of the overall Canadian population, Indigenous adults accounted for almost 30 percent of total custodial admissions in 2016-2017 (Statistics Canada 2016a; Statistics Canada, 2017a).

It is worth noting that custodial admissions of adult Indigenous offenders vary by province and territory, as do the proportions of Indigenous inmates compared to the relative proportions of Indigenous people in the general population. Ontario, the western provinces, and the territories have significantly higher proportions of Indigenous incarceration relative to the Indigenous percentage of the population than do Quebec and the Atlantic provinces. For example, in 2011-2012, Saskatchewan had a relatively high proportion of Indigenous people in its total adult population at 12 percent, but 78 percent of the total adult incarcerated population were Indigenous. In Nova Scotia, on the other hand, Indigenous adults were 3 percent of the provincial adult population and 11 percent of the incarcerated adult population (Statistics Canada, 2014). Thus, the relative incarceration numbers are lower compared to overall population rates in Nova Scotia than in Saskatchewan. These relative differences apply generally when comparing jurisdictions across the country. ^{Footnote 9}

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 10} However, in 2016-2017 they accounted for a much higher proportion of young people admitted to the corrections system: 46 percent (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, compared to 47 percent for Indigenous male youth (Statistics Canada, 2018a).

Finally, we should look at the victimization of Indigenous people in Canada. Statistics Canada has provided data relating to this problem for the year 2014 (Statistics Canada, 2016c: 3):

In 2014, a higher proportion of Aboriginal people than non-Aboriginal people in Canada reported being victimized in the previous 12 months. Overall, 28% of Aboriginal people living in the provinces and territories compared with 18% of non-Aboriginal people reported being the victim of one of the eight types of offences measured by the General Social Survey (GSS) on Victimization.^{Footnote 11}

In 2014, the overall rate of violent victimization among Aboriginal people was more than double that of non-Aboriginal people (163 incidents per 1,000 people versus 74 incidents per 1,000 people). Regardless of the type of violent offence, rates of victimization were almost always higher for Aboriginal people than for non-Aboriginal people.

While victimization rates are relatively high for Indigenous people, it is important to recognize that this does not mean Indigenous people are inherently more likely to commit crimes, including violent crimes, than non-Indigenous people. Nor are Indigenous people inherently more likely to be victimized than non-Indigenous people. As the Statistics Canada analysis below indicates, being Indigenous in itself is not the most significant risk factor in becoming a victim. Rather, other social and economic factors – both historical and current – have greater statistical weight in potential victimization.

When controlling for various risk factors, Aboriginal identity by itself did not remain associated with increasing one’s overall risk of violent victimization. Rather, the higher rates of victimization observed among Aboriginal people appeared to be related to the increased presence of other risk factors among this group—such as experiencing childhood maltreatment, perceiving social disorder in one’s neighbourhood, having been homeless, using drugs, or having fair or poor mental health. (Statistics Canada, 2016c)

While this is true in statistical terms, it must be recognized that being Indigenous is often a strong factor in victimization. We know this from the many disturbing examples of violence, including murder, experienced by Indigenous women and young people. The cases addressed by the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019), and the inquiry into the deaths of seven Indigenous high school students in Thunder Bay from 2000 to 2011 (Talaga, 2017) demonstrate this point. The problem is further complicated by the fact that colonialism, socio-economic marginalization, and systemic discrimination always play a role in these terrible cases.

Numerous Commissions of Inquiry and courts, including RCAP (1996), the TRC (2015), and the Supreme Court of Canada (various rulings), have confirmed that a broad range of factors have contributed to the overrepresentation of Indigenous people as offenders and victims. These factors are discussed in the following section.

Footnotes

Footnote 5

Slight discrepancies appear in different official publications with respect to the Indigenous percentage of the overall Canadian population; for example, while the OCI estimated the percentage of Indigenous people to be 4.3 percent of the total Canadian population, Statistics Canada concluded the proportion to be 4.1 percent.
Absolutely accurate Indigenous population counts are difficult to achieve and may vary according to timing and the enumeration techniques employed. Regardless, the variances are small enough such that they do not affect the message in the overall incarceration numbers as expressed here. See Footnote 11.

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Footnote 6

The Department of Justice explains the concept of rates. Contrary to offender counts, rates are based on calendar year data points. A rate is defined as a measure of the number of adults in custody per 100,000 adults in the general population. It is important to note that a rate will decrease if the number of adults in custody decreases, but it can also decrease if the number of adults in the Canadian population increases while the number of adults in custody remains the same.

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Footnote 7

Provincial and territorial correctional systems supervise adults serving custodial sentences of less than two years, as well as those being held in pre-trial custody (remand) or serving community sentences such as probation. Provincial and territorial systems also supervise youth (12 to 17 years). Custodial sentences of two years or more are served in the federal corrections system.

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Footnote 8

Other custodial statuses include persons being held in provincial/territorial correctional institutions for lock-ups, parole violations or suspensions, immigration holds, and those who are temporarily detained without warrants of any type.

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Footnote 9

Explanations for regional differences are complex and not entirely understood. LaPrairie (2002) suggests that, in cities at least, a significant factor is the relative degree of advantage or disadvantage experienced by Aboriginal people living in a particular city. She describes disadvantage as “the concentration of poor, single parent, and poorly educated aboriginal people in the inner core of their large cities.” In other words, according to LaPrairie it is the relative degree of marginalization that primarily affects crime and incarceration rates, thus leading to differences between cities in the Maritime provinces and the Prairie provinces. Sprott and Doob (2002) and Doob and Sprott (2007) would not disagree with LaPrairie but also argue that regional differences can be explained by differences in systemic cultures in the justice system itself, particularly in the judiciary, thus leading to higher rates of sentenced incarceration in the Prairie provinces. This is an important question that deserves further investigation as it calls into question the principles of fair, equitable and consistent application of the law.

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Footnote 10

Ten provinces/territories provided data on youth admissions to the corrections system. Quebec, Nova Scotia, and New Brunswick did not report 2016-2017 numbers.

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Footnote 11

The eight offences include sexual assault, robbery, physical assault, break and enter, motor vehicle/parts theft, theft of household property, vandalism, and theft of personal property.

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Date modified:: 2023-01-20

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

Overrepresentation: The Nature and Extent of the Problem