Indigenous People in Criminal Court in Canada: An Exploration Using the Relative Rate Index

4. Conclusion

The overrepresentation of Indigenous people in the CJS is a complex issue, for which the causes are deeply rooted in Canada’s history of colonialism. Over the years, this issue has been primarily examined using data from correctional services. This study provides national statistics on Indigenous people in criminal court for the first time. Specifically, this study provided an indication of whether the criminal court process itself contributes to the overrepresentation of Indigenous people in the CJS. The RRI analysis also pinpointed key stages/decision points where Indigenous and White accused experience different court outcomes. Finally, this study identified areas that warrant further exploration and data development with regards to Indigenous people in criminal courts.

The data show that Indigenous accused are overrepresented in criminal court relative to their representation in the Canadian population. Additionally, the proportion of Indigenous accused in court has increased since 2005-06, while the proportion of White accused has decreased. These findings are consistent with trends in correctional services data. In fact, data on the proportions of Indigenous people in criminal courts and in custody show a slight increase between the two stages of the CJS. Although small, this increase may indicate that criminal courts are contributing to overrepresentation. At the very least, they are not reducing the issue of Indigenous overrepresentation. There may be opportunity to explore how criminal courts can further contribute to addressing this issue.

The findings from this study suggest that Indigenous accused are more likely than White accused to have a preliminary inquiry and less likely to have a trial. In addition, Indigenous accused are less likely to encounter a withdrawal, dismissal or discharge or to be acquitted, and more likely to encounter a stay of proceedings or to be found guilty. Of the accused who were found guilty, Indigenous accused are less likely to receive a fine and probation, and more likely to receive a conditional sentence and a custodial sentence. Finally, of the accused who received a custody sentence, Indigenous accused were overall less likely to receive a long-term custodial sentence of two or more years. A visual representation of key findings is provided in Annex 3.

In sum, these findings suggest that Canadian criminal courts are contributing to differential and disproportionate outcomes for Indigenous people. Not all differential and disproportionate outcomes present an inherently negative impact on Indigenous accused (e.g., being more likely to have a preliminary inquiry). However, some of them (i.e., being more likely to be found guilty and more likely to be sentenced to custody) can be described as contributing to the overrepresentation of Indigenous people in the CJS by prolonging their involvement with the CJS.

This report provides an indication of where Indigenous people are experiencing disproportionate outcomes at specific junctures of the criminal court process, but cannot alone explain why this may be occurring. Additional research is needed to better understand the reasons behind these differential outcomes. In addition, further analysis is required to better understand the representation of Indigenous people at other key stages/decision points in the criminal court process. For example, bail appearances and decisions constitute a key criminal court stage/decision point, but could not be examined in the current study due to the unavailability of data. Furthermore, the data on guilty findings in this study do not distinguish between guilty verdicts and guilty pleas. In addition, the offence type in the current study was limited to two groups, namely violent and non-violent offences. Further analysis is required on specific types of offences as the severity of an offence constitute a key factor in judicial decision-making, particularly around the decision to remand the accused to custody, to proceed with a preliminary inquiry and to select an appropriate sentence. Criminal history also constitutes another key factor in judicial decision-making which could not be examined in the current study due to the unavailability of data. Lastly, future studies may help better understand the representation of Indigenous people in the CJS by examining their proportion at the police stage.