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

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3. Results

3.1 Proportion of Indigenous Accused in Criminal Court

Indigenous accused overrepresented in criminal court

In 2015-16, there were 199,895 accused with a completed criminal court case. As shown in Chart 1a, Indigenous people made up 25% of all accused (adults and youth), while representing only 5% of the Canadian population, which means they were overrepresented by a factor of five.^{Footnote 24} The Chart also shows that overrepresentation of Indigenous accused in criminal courts increased steadily, from 19% a decade earlier in 2006-07, even though the proportion of Indigenous people in Canada’s population remained fairly stable over that decade. In comparison, White people accounted for 55% of all accused, representing a decrease from 63% a decade earlier in 2006-07 (see Chart 1b).

Overrepresentation in criminal courts mirrored what has been found in the adult correctional services system. In 2015-16, Indigenous adults (18 years and older) accounted for 26% of admissions to provincial and territorial correctional services and 27% of admissions to federal correctional services (Reitano 2017), while representing approximately 4% of the Canadian adult population (Statistics Canada n. d.). A higher level of overrepresentation was observed in the youth correctional services system where Indigenous youth (aged 12 to 17), who represented 8% of the Canadian youth population (Statistics Canada n. d.), accounted for 35% of admissions in nine reporting jurisdictions (Malakieh 2017).^{Footnote 25}

3.2 Relative Rate Indexes

This section presents findings using the RRI method. The purpose of these analyses is to understand whether the criminal court process produces differential and disproportionate outcomes for Indigenous accused at different junctures (stages/decision points) of the process.^{Footnote 26} The results presented are based on different “at risk” groups, depending on the court stages/decision points. For this reason, the disproportionality found at each stage is considered independent of the disproportionality occurring at previous stages.

3.2.1 Court Proceedings (Preliminary Inquiries and Trials)

This sub-section presents findings on the different court proceedings experienced by individuals accused in criminal courts. Specifically, these analyses looked at all accused (group at risk) to identify whether Indigenous accused were more or less likely than White accused to: 1) have a preliminary inquiry; and 2) have a trial.

Indigenous accused more likely than White accused to have a preliminary inquiry

A preliminary inquiry is a judicial hearing where the court determines whether there is sufficient evidence in a case to commit the accused to trial (R v Hynes 2001). It essentially serves a screening function (ibid.). This procedure is reserved for cases where the accused is charged with an indictable offence (Criminal Code s 535).^{Footnote 27} Preliminary hearings are optional; either the accused or the Crown prosecutor must elect to have a preliminary inquiry in order for it to occur (Ibid. s 536 (2)).^{Footnote 28} There are a number of benefits to having a preliminary inquiry for both the accused and the Crown prosecutor, including the discovery of evidence, which allows for an informal review and better preparation before the trial (Paciocco 2003; Gold & Presser 1996).

Indigenous accused were on average 36% more likely than White accused to have a preliminary inquiry from 2005-06 to 2015-16. This disproportionality was more pronounced in earlier years (2007 to 2011) compared to more recent years (see Chart 2). A greater chance of encountering this outcome was observed among Indigenous male accused, Indigenous adult accused, Indigenous people accused of non-violent offences, and more notably, Indigenous people accused of violent offences (+67%), relative to their White counterparts.^{Footnote 29} However, Indigenous and White female accused were equally likely to have a preliminary inquiry (Indigenous = -3%). Findings varied between jurisdictions.^{Footnote 30} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 1 and Table 6.

These findings suggest that Indigenous accused are generally more likely than White accused to have a preliminary inquiry. The RRI does not account for potential differences in the types of offences (i.e., indictable or summary) for which Indigenous and White people were accused. This could be an important consideration, if Indigenous or White people are more or less likely to be accused of criminal offences that qualify for a preliminary inquiry. However, further breakdown of the RRI suggests that the extent of disproportionality is even more pronounced in the case of a violent offence, which warrants further exploration.

It should also be noted that these findings provide information only on the likelihood of Indigenous and White accused electing or receiving a preliminary inquiry, and not on the outcome of such a hearing (i.e., whether a decision was made to commit the accused to trial or to discharge the accused pursuant to section 548(1) of the Criminal Code). Previous research has examined the likelihood of an accused being committed to a trial following a preliminary inquiry, but there have been mixed results. The findings of Webster (2005) suggest that the likelihood of a trial decreased when a preliminary inquiry was conducted.^{Footnote 31} In contrast, the Department of Justice Canada (2010) found that a preliminary inquiry did not affect the likelihood of an accused being committed to trial.^{Footnote 32} Differences in the time period and methodology of these studies may explain these seemingly contradictory findings.

Indigenous accused less likely than White accused to have a trial

In the regular course of criminal court procedures, a trial will be held when the accused enters and maintains a plea of “not guilty,” which calls upon the prosecutor to establish the guilt of the accused beyond a reasonable doubt, and a judge or jury to render a verdict as to the guilt of the accused. A trial may not be held if the accused encounters, for example, one of the following outcomes that put an end to the court proceedings: a stay of proceedings, a withdrawal, a dismissal or a discharge.

Indigenous accused were on average 20% less likely than White accused to have a trial from 2005-06 to 2015-16 (see Chart 3). A lesser chance of encountering this outcome was observed regardless of the sex, age group or offence type of the accused. There were notable differences among jurisdictions.^{Footnote 33} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 1 and Table 6.

These findings suggest that overall, among all accused, Indigenous accused are less likely to have a trial. However, notable variations were observed between jurisdictions. Further exploration of the possible reasons for this differential outcome is required to better understand if, for example, Indigenous accused are more likely to plead guilty or more likely to be diverted through alternative mechanisms. Data on guilty pleas and diversion cannot be examined specifically due to unavailability. However, the next section examines the outcomes of the disposition of cases, including whether Indigenous accused were more likely than White accused to have their charges withdrawn, their case dismissed, be discharged, or have their case stayed.

3.2.2 Court Decisions

This sub-section presents findings on the different court decisions encountered by individuals accused in criminal courts. Specifically, these analyses looked at all accused (group at risk) to identify whether Indigenous accused were more or less likely than White accused to: 1) make a guilty plea; 2) have their charges withdrawn, their case dismissed, or be discharged; 3) have their case stayed; 4) be acquitted; and 5) be found guilty.^{Footnote 34}

Indigenous accused less likely than White accused to encounter a withdrawal, dismissal and discharge and to be acquitted, and more likely to have their case stayed and to have a finding of guilt

Guilty pleas

When charged with an offence, accused are required to either plead guilty or not guilty when they first appear in court (Criminal Code s 606 (1)). If an accused pleads guilty, the judge will inquire about the validity of the plea (Ibid. s 606 (1.1)). If the plea is accepted, the accused will proceed to the sentencing phase of the process. If an accused pleads not guilty, the judge will set a trial date and in certain circumstances, a date for a preliminary inquiry.

Data on guilty pleas are inconsistently collected across and within jurisdictions, rendering them unreliable for reporting. Further, administrative court data do not distinguish between a guilty plea and a finding of guilt when registering a final court decision. For this reason, guilty pleas are captured under findings of guilt in the section below entitled Guilty finding. This gap highlights the need for better data collection and reporting across courts administrations in order to understand whether Indigenous accused are more likely than White accused to plead guilty.

Withdrawal, dismissal, and discharge

In criminal court, charges may be withdrawn, a case dismissed, or an accused discharged. These dispositions all put an end to criminal court proceedings. A Crown prosecutor has the discretion to withdraw charges, which means that they do not place the charges before the judge and they discontinue the prosecution (Krieger v Law Society of Alberta 2002; R v Forrester 1976). This may arise in cases where there is no reasonable prospect of conviction (Roach n.d.).^{Footnote 35} Additionally, the judge has a discretionary power to dismiss a case by not allowing it to proceed after charges are filed (R v Fletcher 1990). This may occur in various circumstances, including lack of prosecution (i.e., failure to take appropriate actions to properly prosecute the accused). An accused may also be discharged upon a preliminary inquiry where the court decides not to commit the accused for trial on the basis that there is insufficient evidence to prosecute (Criminal Code s 548).^{Footnote 36} For the purpose of this analysis, these three outcomes were combined.

Indigenous accused were on average 55% less likely than White accused to encounter a withdrawal, dismissal or discharge from 2005-06 to 2015-16 (see Chart 4). A lesser chance of encountering this outcome was observed regardless of the sex, age group and offence type of the accused. Results varied by jurisdiction.^{Footnote 37} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 2 and Table 7.

Stay of proceedings

A stay is an order by the judge or the Crown prosecutor that prevents any further action on a prosecution, either temporarily or permanently (R v Jewitt 1985; Criminal Code s 579). A judge may enter a stay as a form of remedy under section 24(1) of the Canadian Charter of Rights and Freedoms when the rights of an accused have been infringed or denied (R v O’Connor 1995). A Crown prosecutor may also enter a stay, for example, for the purpose of protecting the identity of an informant (R v Scott 1990), or conducting further investigation that was previously unforeseen (Roach n.d.). In this study, data on the decision to stay the proceedings may also include instances where charges are stayed or withdrawn due to alternative measures, extrajudicial measures or other diversion programs. It is currently not possible to distinguish between these various decisions due to data limitations.

Indigenous accused were on average 47% more likely than White accused to have their case stayed from 2005-06 to 2015-16 (see Chart 4).^{Footnote 38} A greater chance of encountering this outcome was observed regardless of the sex, age group and offence type of the accused. The magnitude of disproportionality was more pronounced in the case of a violent offence; Indigenous people accused of violent offences were more than twice as likely (+113%) than their White counterparts to have their case stayed. Results varied by jurisdiction.^{Footnote 39} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 2 and Table 7.

Acquittal

An accused may be acquitted when a judge or jury returns a verdict of not guilty. Indigenous accused were on average 33% less likely than White accused to be acquitted from 2005-06 to 2015-16 (see Chart 4).^{Footnote 40} A lesser chance of encountering this outcome was observed regardless of the sex, age group and offence type of the accused. Results varied by jurisdiction.^{Footnote 41} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 2 and Table 7.

Guilty finding

Upon undergoing a trial, an accused may be found guilty and convicted of an offence. Used here, the term “guilty finding” includes both findings of guilt^{Footnote 42} by the court and guilty pleas, since the current data do not allow for the examination of guilty pleas on their own. Guilty findings are the most frequent type of court outcome. In 2016-17, guilty findings represented 63% and 54% of all completed cases in adult and youth criminal court, respectively, and has remained fairly stable over the past decade (Miladinovic 2019).

Indigenous accused were on average 14% more likely than White accused to be found guilty (includes guilty pleas) from 2005-06 to 2015-16 (see Chart 4). A greater chance of encountering this outcome was observed regardless of the sex, age group and offence type of the accused. Results varied by jurisdiction.^{Footnote 43} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 2 and Table 7.

In sum, these findings indicate that Indigenous accused are generally less likely than White accused to encounter a withdrawal, dismissal or discharge, or to be acquitted. Conversely, they are generally more likely to encounter a stay of proceedings and to be found guilty or to plead guilty. However, there were a few exceptions among jurisdictions where a different trend was observed for these court outcomes.

Previous research has suggested that Indigenous accused may be more likely to plead guilty, even when they are factually innocent (i.e., false guilty pleas; Bressan & Coady 2017). A number of factors have been identified to explain this finding, including: Indigenous people having a limited understanding of the CJS or wanting to get their court proceedings over with, being denied bail, wanting to obtain a lesser charge or reduced sentence, social vulnerabilities, and conflicts between Indigenous cultures and world views and the philosophy of the CJS (ibid.).^{Footnote 44} In this context, findings indicating a greater likelihood of Indigenous accused being found guilty may be an indication of a greater issue surrounding the fair administration of justice. Further exploration of data specific to guilty pleas would be required to better understand this issue.

Additionally, the data presented in this report do not distinguish between judicial stays, prosecutorial stays or stays for other reasons, including alternative measures, extrajudicial measures or other diversion programs. Considering the different reasons for which a case may be stayed and the fact that Indigenous people are more likely to encounter this outcome, this is an important area for further examination to determine if these findings represent a positive or negative outcome for Indigenous people. For example, if Indigenous accused are more likely to encounter stays related to infringements of rights, this would point to systemic discrimination issues within the CJS. Conversely, if Indigenous accused are more likely to encounter stays for diversion purposes, this could be indicative of efforts to reduce overrepresentation within the CJS.

3.2.3 Sentencing Outcomes

This sub-section presents findings on the different sentencing outcomes of criminal court cases with a guilty disposition. Specifically, these analyses looked at all accused who were found guilty (group at risk) to identify whether Indigenous accused were more or less likely than White accused to obtain: 1) fines; 2) probation sentences; 3) conditional sentences; and, 4) custody sentences.

Among those found guilty, Indigenous accused less likely than White accused to receive fines and probation sentences, and more likely to receive conditional sentences and custody sentences

Upon being found guilty of an offence, an individual receives a sentence based on a number of factors and principles (Criminal Code s 718, s 718.1 and s 718.2). Possible sentences, in order of seriousness from less to most, include fines, probation, conditional sentence and custody.^{Footnote 45}

Fines

A judge may impose that an accused pays a fine as their sentence. Among all those found guilty, Indigenous accused were on average 14% less likely than White accused to receive a fine from 2005-06 to 2015-16 (see Chart 5). A lesser chance of encountering this outcome was observed for Indigenous male accused, Indigenous adult accused, and Indigenous people accused of non-violent offences, relative to their White counterparts. However, different outcomes were observed when considering other characteristics. Indigenous and White female accused were equally likely to receive a fine (Indigenous = +1%). Among youth, Indigenous accused were more likely (+11%) than White accused to receive a fine. Additionally, Indigenous people accused of violent offences were more than twice as likely (+144%) than their White counterparts to receive a fine. Finally, Indigenous accused were consistently less likely to receive a fine than their White counterparts across all reporting jurisdictions.^{Footnote 46} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 3 and Table 8.

Probation sentences

A probation sentence entails a judge allowing an individual to be released into the community under certain conditions that are prescribed in a probation order (Criminal Code s 731). In 2016-17, probation continued to be the most common sentence type imposed in both adult and youth criminal court, representing 44% and 57% of guilty cases, respectively (Miladinovic 2019).

Among all those found guilty, Indigenous accused were on average 13% less likely than White accused to receive probation from 2005-06 to 2015-16 (see Chart 5). A lesser chance of encountering this outcome was observed for Indigenous male and female accused, Indigenous adult accused, and both Indigenous people accused of violent and non-violent offences, relative to their White counterparts. However, Indigenous and White youth accused were equally likely to receive probation (Indigenous = 0%). Results varied greatly by jurisdiction, where a number of provinces and territories reported the inverse trend.^{Footnote 47} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 3 and Table 8.

Conditional sentences

A conditional sentence is a sentence that is served in the community under strict conditions (Criminal Code s 742.1).^{Footnote 48} Conditional sentences were introduced by Parliament in 1996 as part of sentencing reforms (former Bill C-41) in an attempt to lessen the use of custody sentences in Canada.

Among all those found guilty, Indigenous accused were on average 11% more likely than White accused to receive a conditional sentence from 2005-06 to 2015-16 (see Chart 5).^{Footnote 49} A greater chance of encountering this outcome was observed for Indigenous male accused, Indigenous adult accused, and more notably, Indigenous people accused of violent offences (+60%), relative to their White counterparts.^{Footnote 50} However, Indigenous accused of non-violent offences were less likely (-5%) than White accused to receive a conditional sentence. Indigenous and White female accused were equally likely to receive a conditional sentence (Indigenous = -3%). Results varied by jurisdiction.^{Footnote 51} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 3 and Table 8.

Custody sentences

As detailed in the Criminal Code (s 718.2(e)), a custody sentence should be imposed as a last resort and all available sentences, other than imprisonment, should be considered, with particular attention given to the situation of Indigenous offenders. Among all those found guilty, Indigenous accused were on average 30% more likely than White accused to receive a custody sentence from 2005-06 to 2015-16 (see Chart 5).^{Footnote 52} A greater chance of encountering this outcome was observed regardless of the sex, age group and offence type of the accused. Additionally, a greater chance of encountering this outcome was observed across all reporting jurisdictions to a varying degree, with the exception of Prince Edward Island, where Indigenous and White accused were equally likely to receive a custody sentence.^{Footnote 53} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 3 and Table 8.

Additional analyses were conducted to better understand the likelihood of Indigenous accused to obtain a conditional sentence over a custody sentence. Among accused who received either a custody sentence or a conditional sentence, Indigenous accused were on average 11% less likely than White accused to receive a conditional sentence from 2005-06 to 2015-16. A lesser chance of encountering this outcome was observed for Indigenous male and female accused, Indigenous adult accused and Indigenous people accused of non-violent offences, relative to their White counterparts.^{Footnote 54} Conversely, Indigenous people accused of violent offences were more likely (+17%) than their White counterparts to receive a conditional sentence. Results varied by jurisdiction.^{Footnote 55} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 4 and Table 9.

In sum, of the individuals who were found guilty, Indigenous accused were less likely to receive a fine, with the exception of Indigenous female accused, Indigenous youth accused and Indigenous people accused of a violent offence. They were also less likely to receive a probation sentence, with the exception of Indigenous youth and Indigenous accused in a few jurisdictions. Conversely, Indigenous accused were more likely to receive a conditional sentence, with the exception of Indigenous female accused and Indigenous accused in a few jurisdictions. Finally, Indigenous accused were consistently more likely to receive a custody sentence, a finding which is consistent with trends in admissions to correctional services data (Malakieh 2020).

Indigenous accused were therefore more likely to obtain more serious sentences with greater restrictions (custody or conditional sentences) and less likely to obtain less serious sentences (probation or fine), in comparison to White accused, when only considering those found guilty. Further, of the accused who received a more serious sentence (i.e., conditional sentence or custody sentence), Indigenous accused were less likely to receive a conditional sentence compared to White accused, with the exception of Indigenous people accused of violent offences. These findings remain consistent with previous research and statistical data showing a more prominent use of custody sentences over conditional sentences for Indigenous people (Reid 2017).

3.2.4 Length of Custodial Sentences

This sub-section presents findings on the length of custodial sentences. Specifically, these analyses looked at all accused who were sentenced to custody (group at risk) to identify whether Indigenous accused were more or less likely than White accused to obtain varying custodial terms. The ICCS categorizes custodial terms into six groups: 1) “1 month or less”; 2) “greater than 1 month to 3 months”; 3) “greater than 3 months to 6 months”; 4) “greater than 6 months to 12 months”; 5) “greater than 1 year to less than 2 years”; and, 6) “2 years or more.”^{Footnote 59Footnote 60} For the purpose of this report, these custodial terms have been grouped under three categories: long-term custodial sentence (“greater than 1 year to less than 2 years” and “2 years or more”), medium-term custodial sentence (“greater than 3 months to 6 months” and “greater than 6 months to 12 months”), and short-term custodial sentence (“1 month or less” and “greater than 1 month to 3 months”).

The length of custodial sentences determines which correctional service will have jurisdiction over an individual. Provincial or territorial correctional services have jurisdiction over an individual that is sentenced to a custodial term of less than two years, while federal correctional services have jurisdiction over individuals sentenced to a custodial term of two years or more.

Among those sentenced to custody, Indigenous accused less likely to receive a long-term custodial sentence of two years or more

Short-term custodial sentence

Among all those sentenced to custody, Indigenous and White accused were on average equally likely to receive a short-term custodial sentence of “1 month or less” (Indigenous = 0%) from 2005-06 to 2015-16 (see Chart 6a). A similar chance of encountering this outcome was observed for both Indigenous male and female accused, Indigenous adult accused and Indigenous people accused of non-violent offences, relative to their White counterparts. However, Indigenous youth accused and Indigenous people accused of violent offences were less likely to encounter this outcome relative to their White counterparts (-22% and -15%, respectively). Results varied by jurisdiction, with a number of provinces and territories reporting a different trend.^{Footnote 61} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 5 and Table 10.

Furthermore, among all those sentenced to custody, Indigenous accused were on average 5% less likely than White accused to receive a short-term custodial sentence “greater than 1 month to 3 months” from 2005-06 to 2015-16 (see Chart 6a). A lesser chance of encountering this outcome was observed for Indigenous male accused, Indigenous adult accused and Indigenous people accused of violent or non-violent offences, relative to their White counterparts. Conversely, Indigenous youth accused were more likely (+27%) than their White counterparts to encounter this outcome. Indigenous and White female accused were equally likely to encounter this outcome (Indigenous = +4%). Results varied by jurisdiction.^{Footnote 62} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 5 and Table 10.

Medium-term custodial sentence

Overall, a different trend was observed for medium-term custodial sentences. Among all those sentenced to custody, Indigenous accused were on average more likely than White accused to receive a medium-term custodial sentence “greater than 3 months to 6 months” (+27%)^{Footnote 63} and “greater than 6 months to 12 months” (+17%),^{Footnote 64} from 2005-06 to 2015-16 (see Chart 6b). A greater chance of encountering these outcomes was observed regardless of sex and age group. Notably, Indigenous female accused^{Footnote 65} and Indigenous youth accused^{Footnote 66} were both more than twice as likely to receive a medium-term custodial sentence “greater than 6 months to 12 months,” relative to their White counterparts (+178% and +119%, respectively). Indigenous people accused of violent offences were more likely to encounter these outcomes relative to their White counterparts. In the case of non-violent offences, Indigenous accused were more likely to receive a medium-term custodial sentence “greater than 3 months to 6 months,” but equally likely (-2%) as their White counterparts to receive a medium-term custodial sentence “greater than 6 months to 12 months.” Results varied by jurisdiction.^{Footnote 67Footnote 68} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 5 and Table 10.

Long-term custodial sentence

Among all those sentenced to custody, Indigenous and White accused were equally likely (Indigenous = - 4%) to receive a long-term custodial sentence “greater than 1 year to less than 2 years” from 2005-06 to 2015-16 (see Chart 6c). The yearly RRIs for this custodial term showed important variation; they were much lower in 2009-10 and much higher in 2005-06 and 2012-13, which may affect the average RRI. An equal chance of encountering this outcome was observed for Indigenous male accused and Indigenous adult accused, relative to their White counterparts.^{Footnote 69} However, Indigenous people accused of violent offences were more likely (+19%) than their White counterparts to receive a long-term custodial sentence “greater than 1 year to less than 2 years,” while those accused of non-violent offences were less likely (-30%) than their White counterparts to encounter this outcome. A lower chance of encountering this outcome was observed for reporting jurisdictions, namely British Columbia and Ontario.^{Footnote 70} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 5 and Table 10.

When considering long-term custodial sentences of “two years or more,” among all those sentenced to custody, Indigenous accused were on average 31% less likely than White accused to encounter this outcome from 2005-06 to 2015-16 (see Chart 6c).^{Footnote 71} A lesser chance of encountering this outcome was observed for Indigenous male accused, Indigenous adult accused, and both Indigenous people accused of violent and non-violent offences, relative to their White counterparts.^{Footnote 72} Similarly, Indigenous accused were less likely than their White counterparts to encounter this outcome in Ontario.^{Footnote 73} RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 5 and Table 10.

It should be noted that while Indigenous accused (of all those sentenced to custody) are less likely to receive a long-term custodial sentence of “two years or more,” this does not mean that Indigenous people are not overrepresented in federal custody in comparison to their representation in the Canadian population. This only suggests that decisions on custodial sentence length do not appear to be further contributing to their overrepresentation.

In sum, among those sentenced to custody, Indigenous accused were either equally or less likely than their White counterparts to receive a short-term custodial sentence, with a few exceptions when considering other variables, namely sex, age group, offence type and jurisdiction. Additionally, Indigenous accused were more likely than their White counterparts to receive a medium-term custodial sentence, with a few exceptions when considering the offence type and the jurisdiction. Finally, Indigenous accused were either equally or less likely than their White counterparts to receive a long-term custodial sentence, with a few exceptions when considering the offence type.

The RRI method does not take into account the multiple factors that may affect the length of custodial sentences, such as aggravating and mitigating factors, the criminal record of an accused and the severity of the offence. In fact, the findings above could be further explained by differences between Indigenous and White accused in the severity of offences or in the offences being subject to mandatory minimum penalties. Previous research has shown that the proportion of Indigenous people admitted to federal custody for an offence punishable by a mandatory minimum penalty as the most serious offence in the case increased from 14% in 2007-08 to 26% in 2016-17 (Department of Justice 2017b).

Although further research is required to better understand the current study’s findings, they may show cause for concern. Individuals serving sentences in provincial and territorial custody (i.e., sentences less than two years) are not provided with the same breadth of programming opportunities as individuals in federal custody, which may impact their successful community reintegration (TRC 2015b). In fact, previous research has indicated that Indigenous people were much more likely than their White counterparts to have a subsequent contact with the police following their correctional involvement (Brennan & Matarazzo 2016). This does not suggest that Indigenous people should be given longer sentences. Rather, it may be worth exploring if other sentencing alternatives, such as probation, would be more appropriate in some cases.

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