Guilty pleas among Indigenous people in Canada

Executive summary

The overrepresentation of Indigenous people in custody is a serious challenge that confronts Canada’s justice system. One factor that may contribute to this overrepresentation is a higher rate of guilty pleas among Indigenous people. The Research and Statistics Division at the Department of Justice Canada interviewed justice system professionals to explore the circumstances under which Indigenous people plead guilty.

First, there are aspects of the justice system that can incentivize a guilty plea for anyone accused of a crime. These include delays and adjournments, “unreasonable” bail conditions, remand, plea bargaining, and barriers accessing legal aid. Some of these issues may disproportionately affect Indigenous people. Second, like other marginalized groups, Indigenous people may be at greater risk of justice system contact and guilty pleas because of social vulnerabilities related to income, housing, addictions, and mental health. Finally, there are unique aspects of Indigenous culture and community that may contribute to guilty pleas, including language barriers, a distrust in the justice system, and a “cultural premium” placed on agreement, cooperation, and taking responsibility. These cultural values can lead Indigenous accused to plead guilty even if they are not legally guilty, to provide full confessions to police, and to agree in court whether they agree or even understand.

Three key factors – justice system incentives, social vulnerabilities, and culture and community – interact to contribute to guilty pleas among Indigenous people. The resulting criminal record and incarceration can have adverse consequences, including loss of employment and housing, loss of family and community, trauma from incarceration, and increased risk of re-contact with the justice system. Effects may be worse in remote communities with language barriers, limited employment opportunities, over-policing, and challenges accessing courts and social services. According to participants, many Indigenous people in the justice system go through a vicious cycle of re-contact for failing to comply with conditions that criminalize their addiction and other social issues.

This research suggests that addressing inequities in the justice system that contribute to guilty pleas would help reduce the rate of incarceration of Indigenous people. Participants described initiatives that support Indigenous people in the criminal justice system that are culturally and community appropriate and responsive to their needs. Examples include the Indigenous Courtwork Program, legal aid, specialized courts, Gladue reports, restorative justice, cultural competency training for justice system professionals, and court transportation services. Addressing gaps in services to Indigenous people in the justice system and front-end social supports related to poverty, housing, addiction, and mental health would help reduce Indigenous people’s contact with the criminal justice system.