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

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2. Method

Procedures and measures

This project was a collaborative effort between the Research and Statistics Division at the Department of Justice Canada and the Canadian Centre for Justice and Community Safety Statistics at Statistics Canada. The data presented in this report were obtained through a data linkage: records from Statistics Canada’s 2016 Census of Population long-form (Census)^{Footnote 9} and the Integrated Criminal Court Survey (ICCS)^{Footnote 10} were assessed and linked based on the probability that they belonged to the same person. Both the ICCS appearance and charge files were required to complete the linkage since each file contained specific information on the court outcomes examined in this study. More specifically, data from the ICCS appearance file with personal identifiers were first sent to the Social Data Linkage Environment (SDLE)^{Footnote 11} to identify unique individuals. These individuals were then linked back to the ICCS charge file, which is comprised of charges for completed court cases (i.e., cases where all charges received a final decision).^{Footnote 12} To obtain the Indigenous identity of ICCS accused, individuals from the ICCS charge file were linked to the Census, which was administered to 25% of the Canadian population. The ICCS cohort had a linkage rate of 13%. In order to make inferences to the entire population of ICCS individuals, Census weights were adjusted to match the complete ICCS cohort.^{Footnote 13} Within the ICCS cohort, only individuals who had a completed court case and were linked to the Census were retained for this study, along with their weights and Indigenous identity.

The data obtained through the data linkage procedure are national in scope and include information from 11 provinces/territories. Data from Quebec and Alberta were excluded since the personal identifiers required for linkage were not available in the ICCS.^{Footnote 14}

The “Aboriginal identity” and “Visible minority group” variables in the Census were used to create two study groups: Indigenous accused and White accused. While the Census uses the term “Aboriginal,” the term “Indigenous” will be used throughout the report, and includes individuals who identified as First Nations, Inuit and/or Métis, or as registered Indians or as having membership in a First Nations or Indian band. For the purpose of this study, the term “White accused” includes individuals identified as neither Indigenous, nor as a visible minority^{Footnote 15} in the Census.

The linked data for Indigenous and White groups were used to generate two types of metrics: 1) proportions of Indigenous and White accused in criminal courts; and 2) Relative Rate Index.

1) Proportions of Indigenous and White accused in criminal courts

To obtain the representation of Indigenous people as accused in criminal courts, proportions of both Indigenous and White accused were calculated based on the total number of accused in the ICCS. These were contrasted with the proportions of Indigenous and White people in the Canadian population, which were calculated using the total Census population. For comparison purposes, individuals under 12 years of age were excluded from the Census population counts, as individuals within this age group are excluded in the ICCS. Proportion data (both ICCS- and Census-based) were generated for the three most recent Census years for which there were exact population counts: 2006, 2011 and 2016.^{Footnote 16}

2) Relative Rate Index

The RRI method measures the likelihood of a selected group (Indigenous accused) encountering an outcome (e.g., guilty finding, custodial sentence) relative to a reference group (White accused) encountering the same outcome. In this study, RRIs were calculated by dividing the rate of Indigenous accused experiencing a court outcome by the rate of White accused experiencing the same outcome (see Annex 1). These rates are based on the number of Indigenous and White accused experiencing a court outcome out of the total number of Indigenous and White accused, respectively, “at risk” of experiencing the outcome. The term “at risk” refers to the different stages of the criminal court process; only those accused present in the court system at the previous stage are “at risk” of moving through to the next stage. For example, only those convicted—as opposed to all accused—are “at risk” of receiving a custodial sentence.^{Footnote 17} Consequently, RRIs represent the level of disproportionality at key stages/decision points of the criminal court process, independent of any disproportionality that may have occurred at an earlier stage in the court process.

This RRI study examines the representation of Indigenous accused relative to White accused at five key stages/decision points in the criminal court process: 1) preliminary inquiry; 2) trial; 3) court decisions;^{Footnote 18} 4) sentencing;^{Footnote 19} and 5) length of custodial sentences.^{Footnote 20} In addition to the RRIs, for information purposes, data on the length of custodial sentences are also presented using the median length of custodial sentences in days as a measure (see Annex 2, Table 11 and Table 12).^{Footnote 21}

RRIs were generated for each of the years from 2005-06 to 2015-16.^{Footnote 22} To limit the scope of the report and facilitate reporting of results for Indigenous and White accused, RRIs are primarily presented in the text of the report as a single average across the 11-year period (i.e., rather than as 11 separate data points). Unless otherwise stated, RRIs are reported only if the data were available for each year of the 11-year period. This allowed for consistency in the reporting timeframe across court outcomes (e.g., court decisions and sentence types), as well as sub-outcomes (e.g., guilty finding and stay of proceedings or custodial sentence and probation). Since the average RRI may hide important variations from year to year, charts presenting the yearly RRIs are included for each court outcome examined, and notable trends are discussed.

The key RRI data presented in the report capture the total ICCS population. The RRI data were broken down by age groups (adults and youth), by sex (male and female), by type of offence (violent and non-violent) and by jurisdiction. RRIs for these groups are presented in the text where the data show a different trend than that of the Indigenous population as a whole or where disproportionality is more pronounced at a specific juncture of the criminal court process when additional variables are taken into account. These breakdowns are reported as an average over the 11-year period. In some cases, there were important variations over time within each breakdown category, particularly within jurisdictions. It should be noted that certain breakdowns, namely jurisdictional and youth data, resulted in low sample sizes and certain data points had to be suppressed to ensure data quality and the confidentiality of individuals.^{Footnote 23} These breakdowns are therefore unavailable for certain years. In these cases, a note was made in the report. Finally, data reported in the text of the report focus on the most notable results; complete data tables, including all available breakdowns, are presented in Annex 2.

Interpretation of RRI results

For each court outcome and breakdown, the average RRI of Indigenous accused is established in comparison with their White counterparts, which constitute the reference group. For example, the likelihood of Indigenous female accused receiving a preliminary inquiry is established in comparison to White female accused receiving a preliminary inquiry. A RRI of 1.00 means there is no disproportionality compared to the reference group. A RRI over 1.00 means that Indigenous accused are more likely to encounter a court outcome than the reference group. A RRI lower than 1.00 means that Indigenous accused are less likely to encounter a court outcome than the reference group.

For the purpose of this report, these thresholds were slightly adjusted. RRI values that were within four percent of the reference category (i.e., 1.00 +/- 0.04) were considered to present no disproportionality. For instance, Indigenous accused and White accused are considered equally likely to encounter a court outcome, when the RRI value is situated between 0.96 and 1.04. A RRI of 0.95 (or -5%) or less would indicate that Indigenous accused are less likely than White accused to encounter a court outcome. A RRI of 1.05 (or +5%) or more would indicate that Indigenous accused are more likely than White accused to encounter a court outcome.

In this report, RRI values are presented as percentages (see Table 1). For example, a RRI value of 1.20 would be reported as 20% more likely or +20%. The same applies to RRI values that are less than 1.00. For example, a RRI value of 0.85 would be reported as 15% less likely or -15%. RRI values of 2.00 or greater can also be reported in multiples. For example, a RRI of 2.00 (or +100%) would be reported as twice as likely. However, charts plotting the RRI data trend over an 11-year period (presented in the findings) use the RRI values, rather than percentages.

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