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Understanding the Overrepresentation of Indigenous People in the Criminal Justice System

Understanding the Overrepresentation of Indigenous People in the Criminal Justice System

Indigenous people are overrepresented in the Canadian criminal justice system as both victims/survivors Footnote 8 and accused/convicted persons. For example, in 2014, a significantly higher proportion of Indigenous people than non-Indigenous people in Canada (aged 15+) reported being victimized in the previous year (28% vs. 18%).Footnote 9 In 2016/2017, Indigenous adults accounted for 30% of provincial/territorial custody admissions, 27% of federal custody admissions, and 27% of the federal in-custody population, while representing 4.1% of the Canadian adult population.Footnote 10 At the same time, Indigenous youth accounted for 50% of custody admissions, while representing 8% of the Canadian youth population.Footnote 11 These proportions have been trending upwards for over 10 years.

To understand fully the overrepresentation of Indigenous people in the criminal justice system, it is necessary to consider the context in which it is occurring. In the spirit of truth and reconciliation, the following information provides an overview of some of the literature on factors contributing to such overrepresentation. It includes references to numerous studies, inquiries and commissions undertaken since the 1970s, as well as judicial and program responses implemented to address overrepresentation. Additional information about the experience of Indigenous people’s interaction with the criminal justice system can be found in the Studies section of the Dashboard.

In 1996, the Report of the Royal Commission on Aboriginal Peoples was released. It found that the greatest contributor to overrepresentation were the colonial values underlying Canadian criminal laws, policies and practices that have had negative impacts on Indigenous people.Footnote 12 As a result of Canada’s colonial history, Indigenous people have been subjected to assimilation policies and practices that have created collective and individual intergenerational trauma resulting in negative impacts on social determinants of health for many. Their experiences, often compounded by inadequate housing as well as limited education and employment opportunities, have been identified in the literature as contributing to Indigenous people being in contact with the criminal justice system more often and for longer periods than non-Indigenous people.

Canada’s Colonial History

Many inquiries, commissions, task forces and research studies have made direct links between the historical and ongoing colonial laws, policies, processes, systems and the overrepresentation of Indigenous people in the Canadian criminal justice system.
“... [w]e are of the opinion that locating the root causes of Aboriginal crime in the history of colonialism, and understanding its continuing effects, points unambiguously to the critical need for a new relationship that rejects each and every assumption underlying colonial relations between Aboriginal people and non-Aboriginal society.” (RCAP 1996 p. 52)

Colonialism has led to cultural alienation, territorial dispossession, intergenerational trauma, systemic discrimination, and socio-economic marginalization, which together continue to have profoundly negative impacts on the lives of many Indigenous people today.Footnote 13 Cultural alienation and intergenerational trauma caused by policies such as the residential school system, removal of Indigenous children from their families during the 60s scoop and ongoing child welfare practices, have affected relationships and contributed to the erosion of familial and community ties. This has had complex and tragic results, with ongoing consequences for many, such as high rates of serious physical health problems, issues with mental health and cognitive impairment, suicide, physical and sexual abuse, alcohol and drug abuse, interpersonal violence, family breakdown, and involvement both as victims/survivors and accused/convicted persons in the criminal justice systemFootnote 14.

Colonialism was identified by the Truth and Reconciliation Commission in 2015 also leading to the disempowerment of Indigenous women by replacing existing forms of Indigenous government, in which women held significant influence and powerful roles in many First Nations.Footnote 15 The National Inquiry into Missing and Murdered Indigenous Women and Girls Interim Report in 2017 and other studies also indicate that Indigenous women are often devalued in Canadian society, leading to alarming rates of violence and increased interaction with the criminal justice system as both victims/survivors and accused/convicted persons.Footnote 16

Systemic Discrimination

Systemic discrimination throughout the criminal justice system, including policing, the courts and in corrections has been identified as a serious issue by the Supreme Court (e.g., R v Gladue,Footnote 17 R v Wells,Footnote 18 and R v IpeeleeFootnote 19) and by several commissions of inquiry for well over 30 years. Information on the specific governmental, legislative and judicial inquiries and responses to this issue can be found in the links available on the Learn more page.

“Not surprisingly, the excessive imprisonment of Aboriginal people is only the tip of the iceberg insofar as the estrangement of the Aboriginal people from the Canadian criminal justice system is concerned. Aboriginal people are overrepresented in virtually all aspects of the system. As this Court recently noted in R. v. Williams, [1998] 1 S.C.R. 1128, at para. 58, there is widespread bias against Aboriginal people within Canada, and “[t]here is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system.” (R. v. Gladue, [1999] 1 S.C.R. 688)

Within the literature, the issues of Indigenous people being both over-policed and under-policed has been identified as an example of systemic discrimination.Footnote 20 Although there is currently no data that is available, Indigenous people are believed to be more often targeted by police, which leads to more contact with courts than non-Indigenous people. At the same time, studies have found that biases have led to Indigenous people being seen as less worthy victims by the police, having their credibility questioned, and their requests for assistance ignored or not adequately supported.Footnote 21

Of the adults admitted to custodial facilities, the proportion who are Indigenous has been trending upwards for over 10 years.Footnote 22 Even with the addition of section 718.2(e) to the Criminal CodeFootnote 23 that requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of Indigenous convicted of an offence,Footnote 24 alternative sentencing options are believed to still not be regularly used outside specialized courts such as Gladue Courts.Footnote 25

Some studies suggest that one of the factors contributing to the high number of custodial sentences is that Indigenous people are denied bail more frequently, resulting in longer periods of pre-trial detention or remand than non-Indigenous accused.Footnote 26 No data are currently available to confirm or deny this notion. For bail to be granted, a number of conditions are often placed on an individual. These can include the need to identify someone willing and able to make a payment to the court if the accused breaks a condition of their release. This can be difficult for those involved in the criminal justice system given they are likely to be living in poverty, homeless, or struggling with addictions or mental health issues.Footnote 27

Further, a 2012 special report by the Federal Correctional InvestigatorFootnote 28 highlighted that in comparison to non-Indigenous people, Indigenous people serve disproportionately more of their sentence behind bars. They are underrepresented in community supervision populations and overrepresented in maximum security institutions. They are also disproportionately more involved in institutional security incidents, use of force interventions, segregation placements and self-injurious behaviour.Footnote 29

The literature has demonstrated that the impacts of colonialism and systemic discrimination have resulted in disproportionate rates of incarceration of Indigenous people. Even when economic risk factors (such as employment, poverty, severe family conflict, and alcohol and substance use issues) are taken into consideration, Indigenous ancestry is still appears to be highly associated with incarceration.Footnote 30

Socio-economic Marginalization

Many individuals coming into contact with the criminal justice system face challenges such as mental health and substance use issues, poverty, homelessness, and past experiences of violence, trauma, and victimization. However, it is the loss of culture and language, social and political inequalities, intergenerational trauma, and economic barriers that have led to different experiences for Indigenous people from other groups, including overrepresentation, in the criminal justice system.Footnote 31

The impact of socio-economic marginalization on the overrepresentation of Indigenous people in the Canadian criminal justice system has been identified as significant within the literature.Footnote 32 Indigenous people in Canada have a higher unemployment rate, and lower levels of educational attainment than non-Indigenous people.Footnote 33 They have disproportionately more inadequate housingFootnote 34 and poorer health outcomes.Footnote 35 These conditions, as well as poverty, limit the opportunities and life chances for individuals, forming the basis for the vulnerability of some and increasing their likelihood of involvement with the criminal justice system.Footnote 36

Once in the criminal justice system, socio-economic marginalization continues to affect some Indigenous people. A recent study that examined the extent of marginalization factors in federal correctional populations found that Indigenous people continue to present higher needs than non-Indigenous people in areas such as employment, education, health and housing.Footnote 37 Risk assessment tools used in sentencing and correctional plans are built using these same factors to establish risk (education level, employment, financial situation and housing) to establish risk. As a result, Indigenous people convicted of an offence are more likely to be assessed as high riskFootnote 38.

Cultural Differences

The Canadian criminal justice system is based on Western values of justice. These values differ in the perceptions of wrong-doing or harm and the approaches to justice between Indigenous and non-Indigenous cultures.Footnote 39
“The downfall of Indigenous people in Canada and many other colonial countries is their alienation from their original justice systems. The justice prescribed to them is not that of their own culture or customs. What has been imposed on them is Western justice, more specifically, Western State-sanctioned justice; a retributive justice system that has been used to colonize and marginalize Indigenous people.” (Aboriginal Justice Inquiry of Manitoba, 1999; Sutherland, 2002; as cited in Hansen, 2012, p. 1)

There are many different Indigenous cultures within Canada, yet overall Indigenous worldviews on justice and addressing harm have many similarities. Although both Indigenous and Western forms of justice include the principles of deterrence, denunciation, incapacitation (for public safety), and rehabilitation, it is in the application of these principles and in the approaches used to address the wrong-doing or harm that differ. For example, for Indigenous people, justice as reflected in Indigenous legal traditions is relational in nature and based on kinship. The focus is on relationships, on restoring peace and balance within the community, and on addressing harm through healing and reintegration.Footnote 40 In comparison, Western approaches to justice, outside of the inclusion of restorative justice principles, tend to be less relational given that crimes are considered to be against the State rather than those that received the harm. These fundamental differences can lead to further trauma and overrepresentation of Indigenous people in the criminal justice system.Footnote 41

In addition to different worldviews, the normative behaviours that are part of Indigenous cultures can be misinterpreted by the Western justice system officials.Footnote 42 For example, Indigenous witnesses avoiding eye contact in court is a sign of respect but may be interpreted as a sign of guilt, or another example is the court interpreting a legal plea of guilty as the same as taking responsibility or blame of a harm caused.Footnote 43

The implementation of culturally relevant community-based justice programs helps to address the impact of cultural differences within the criminal justice system. The development of justice-related programs and services by Indigenous communities based on local needs and tailored to local cultures and traditions have had positive results. For example, Indigenous accused/convicted persons who have participated in community-based justice programs have lower rates of reoffending when compared to Indigenous accused/convicted persons in the mainstream Western criminal justice system.Footnote 44 Indigenous approaches often reflect restorative justice principles and healing. They are relational in that they directly involve those involved in the harm that was done including the community. They are seen as effective approaches to problem-solving, addressing harm by offering support and opportunities for healing that have long lasting remedies.Footnote 45

Indigenous people

Click on the link above for a list of stories or research studies that provides contextual information and enhance the understanding of the experience of Indigenous people in the criminal justice system.

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