Understanding the Overrepresentation of Indigenous people in the Criminal Justice System

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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, displacement, intergenerational trauma, systemic discrimination and racism, and socio-economic marginalization, which together continue to have profoundly negative impacts on the lives of many Indigenous people today.Footnote 14 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, such as the Millennium Scoop, 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 disproportionately 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 system.Footnote 15

Colonialism was identified by the Truth and Reconciliation Commission in 2015 as 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 16 The National Inquiry into Missing and Murdered Indigenous Women and Girls Final Report of 2019 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 17

Systemic Discrimination and Racism

Systemic discrimination and racism throughout the criminal justice system, including policing, the courts and in corrections, has been identified as a serious issue by the Supreme Court of Canada (e.g., R v GladueFootnote 18 R v Wells,Footnote 19 and R v IpeeleeFootnote 20) and by several commissions of inquiry over the last 35 years. Information on the specific governmental, legislative and judicial inquiries and responses to this issue can be found in the Addressing Overrepresentation section of 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 issue of Indigenous people being both over-policed and under-policed has been identified as an example of systemic discrimination. Although there is currently no available data, Indigenous people are believed to be more often targeted by police, which leads to more contact with courts compared to 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

Indigenous people are also overrepresented in criminal courts, where they are more likely to be found guilty and have more prolonged involvement with the criminal justice system including entry into correctional supervision.Footnote 22

In 1996, section 718.2(e) was added to the Criminal Code,Footnote 23 as part of significant reforms to sentencing provisions and to address the overrepresentation of Indigenous people in custody. This section requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of Indigenous people convicted of an offence. The Supreme Court of Canada first interpreted section 718.2(e) in R v GladueFootnote 24 in 1999, with the decision clarifying that the section applies to all Indigenous people regardless of where they reside. To support judges in applying what are considered Gladue principles, comprehensive Gladue reports may be submitted to the court. These reports provide relevant information about the Indigenous offender’s background including experiences with colonization, intergenerational trauma, racism, and discrimination. Footnote 25 However, despite the introduction of Gladue principles and Gladue reports, Indigenous people continue to be overrepresented in custody. Footnote 26

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 27 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 28

Further, in comparison to non-Indigenous people, Indigenous people serve disproportionately more of their federal sentence behind bars. Footnote 29 They are also underrepresented in community supervision populations and overrepresented in maximum security institutions. Footnote 30 Further, they are disproportionately more involved in institutional security incidents, use of force interventions, structured intervention units, and self-injurious behaviour.Footnote 31

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 still appears to be highly associated with incarceration. Footnote 32

Socio-economic Marginalization

Many people who come 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 peoples from other groups, including overrepresentation, in the criminal justice system.Footnote 33

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. Indigenous people in Canada have a higher unemployment rate, and lower levels of educational attainment than non-Indigenous people.Footnote 34 They have disproportionately more inadequate housingFootnote 35 and poorer health outcomes.Footnote 36 These conditions, as well as poverty, limit the opportunities and life chances for Indigenous people, forming the basis for the vulnerability of some and increasing their likelihood of involvement with the criminal justice system.Footnote 37

Once in the criminal justice system, socio-economic marginalization continues to affect some Indigenous people. Risk assessment tools used in sentencing and correctional plans are built using these same factors (education level, employment, financial situation and housing). As a result, Indigenous people convicted of an offence are more likely to be assessed as high risk.Footnote 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 the application of these principles and the approaches used to address wrong-doing or harm that differ. For example, many Indigenous legal traditions view justice as relational in nature and based on kinship. The focus is on well-being and relationships, on restoring peace and balance within the community, and on addressing harm through healing and reintegration.Footnote 41 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 who received the harm. These fundamental differences can lead to further trauma and overrepresentation of Indigenous people in the criminal justice system.Footnote 42

In addition to different worldviews, the normative behaviours that are part of Indigenous cultures can be misinterpreted by Western justice system officials.Footnote 43 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 46

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 has 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

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