Indigenous Peoples and the Canadian Criminal Justice System

Police have wide discretionary powers over surveillance and intervention of individuals in public. Indigenous Peoples twice as likely to be chosen to be surveilled by, or intervened with, by police due to racist stereotypes that criminalize Indigenous people. This results in Indigenous people being over charged both in the volume and severity of offenses.[11]

Accused persons have access to three types of representation in Canada, duty counsel, defense counsel, and self-representation.

Duty counsel is a provincially managed legal aid system that provides free services to accused persons at their first court appearance if they are otherwise unrepresented. Duty counsel is responsible for supporting accused persons in understanding their legal rights, the legal process, and / or specifics relating to their case, investigation, or engagement with police.[12] Duty counsel is provided to ensure that every accused is afforded their Right to Counsel as articulated un Section 10(b) of the Canadian Charter of Rights and Freedoms.[13] Duty counsel has been found ineffective in multiple ways including significant delays in reaching duty counsel in some jurisdictions, and communication barriers between the accused and duty counsel due to intoxication, mental state, or disability.[12] Further, duty counsel may be under resourced or overburdened, and the combinations of these ineffective factors can be enhanced in the presence of bias or racism. The overrepresentation of Indigenous Peoples in the justice system reproduces false racist narratives of their criminality that inform counsel. Additionally, cultural and language barriers may exist between Indigenous persons and their Duty Counsel further impacting their access to effective representation.[14]

Defense counsel can be prohibitively expensive for individuals experiencing poverty. Accused persons can seek the services of legal aid for defense counsel however, it can be difficult to secure effective counsel. Often legal aid defense lawyers face similar impairments of being under resourced and overburdened while experiencing cultural and language barriers between themselves and their assigned clients. As with duty counsel, these factors can be aggravated in the presence of bias.[14]

Increasingly, accused persons are choosing to self-represent as is their right. Approximately 40% of individuals appearing in family court appear in absence of counsel, and the trend of increased persons self-representing in also experienced in civil court proceedings. The primary reasons individuals have chosen to self-represent are financial inaccessibility of effective counsel and dissatisfaction with existing counsel.[15] The risks associated with self-representation is laypersons are not educated in the law and the judicial process so they can become overwhelmed to their own detriment. Self-represented litigants are less likely to achieve fair settlements, have worse outcomes in family and financial matters and their cases take substantially longer to come to conclusion.[16]

In Canada there are 3 bail options to be granted at the discretion of the judge based on the effective arguments of both the defense and the prosecution. Those options include release without conditions, undertaking with conditions, and recognizance. The latter two include a promise to appear in court, posting of a financial surety, and have escalating sets of conditions at the discretion of the judge. Breaching either of these may result in forfeiture of the surety and/or additional criminal charges, and breaching recognizance may be accompanied by additional fines.[17]

Indigenous Peoples often are not granted a bail option as they are perceived as ineligible due to family scenarios, financial positions, or a bias perception that Indigenous persons are more likely to reoffend. The overrepresentation of Indigenous Peoples in the justice system reproduces false racist narratives of their criminality that inform both judges and the prosecution.[14]

Indigenous accused’s report that the conditions of associated with bail are often unreasonable, specifically for those in small, isolated communities as they may include limitations on who you may or may not have contact with. Additionally, abstinence conditions are difficult to comply with for individuals, without support, who experience substance abuse issues.[18]

Poverty, precarious employment and acting as a single caregiver are incentivizing factors to plead guilty. Innocence pleas require trial and bail must be granted to the accused to avoid pre-trial detention. Indigenous people may falsely plead guilty due to poverty, to avoid unreasonable restrictions on their movements or to detention to satisfy employment or care giving obligations.[14]

Once in front of a judge, Indigenous Peoples in Canada have historically received more and longer incarceration sentences. The Supreme Court of Canada decision in R v Gladue both recognized this issue, and mandated justices to allow for provisions in sentencing that considered the historical and socio-economic factors that bring Indigenous Peoples before the court, in order to reduce Indigenous over representation in the carceral system.[19]

Despite this ruling, Gladue principals are inconsistently and unreliably used so there has been little positive impact to Indigenous Peoples since the ruling in 1999.[20]

Indigenous women comprise 42% of women in custody.[21] This is despite the fact that they comprise 4.9% of the female population of Canada.[22]

Indigenous women experience higher rates of poverty, precarious employment, and are statistically more likely to be single care givers. Additionally, they are statistically more likely to experience violence. The combination of these factors results in Indigenous women being significantly more likely to experience precarious housing or houselessness which is a factor in engagements with the criminal justice system. Further, intergenerational trauma and gender inequality has resulted in Indigenous women experiencing higher rates of post-traumatic stress syndrome and addiction. Mental health and addictions issues are also key factors in engagement with the criminal justice system. Due to the combination of all these factors Indigenous women are statistically more likely to participate in survival sex work, an activity criminalized in Canada.[23]

Indigenous youth make up 43% of youths in custody despite being 8% of Canada’s youth population.[21]

Due to the colonial legacy of the destruction of the Indigenous family unit through the residential school system, Indigenous youth are statistically more likely to come from single care giver homes resulting in less support and supervision.[24]

Additionally, the intergenerational trauma from both the historical legacy and contemporary structural nature of colonialism, negatively impacts Indigenous parents resulting in Indigenous youth being overrepresented in the foster care system. Indigenous youth represent 52% of all youth in care.[25]

Youth who spend time in care are statistically more likely to have engagements with the criminal justice system [26][27][28]

The Canadian Department of Justice has formally recognized the prevalence of systemic discrimination within the criminal justice system.[29]