Guilty pleas among Indigenous people in Canada

Introduction

The overrepresentation of Indigenous people in custody is a longstanding issue for Canada’s criminal justice system. Almost two decades ago, the Supreme Court of Canada referred to the overrepresentation of Indigenous people in custody as “a crisis in the Canadian criminal justice system,” and Canada’s prisons as the “contemporary equivalent” of residential schools (R. v. Gladue, [1999] 1 SCR 688; citing Jackson, 1988 at para 60). Reducing the rate of incarceration of Indigenous people is a priority for the federal government and a “call to action” of the Truth and Reconciliation Commission of Canada (Office of the Prime Minister, 2015; Truth and Reconciliation Commission of Canada, 2015).

The overrepresentation of Indigenous people in custody is described as “only the tip of the iceberg,” a result of their overrepresentation “in virtually all aspects of the system” (R. v. Gladue, [1999] 1 SCR 688 at para 61). This overrepresentation is attributed to colonialism, culture clash, systemic discrimination, socioeconomic and demographic conditions, victimization, substance abuse, and a lack of social services (Boe, 2002; Cunneen, 2001, 2006; La Prairie, 2002; Latimer & Foss, 2004; Rudin, 2007). There are also concerns that Indigenous people are “more inclined to plead guilty even if they are innocent or have a valid defence” (Roach, 2015, 215), and “not applying for bail and not entering a not-guilty plea when, in many cases, they should be” (Clark, 2016, 4). The Indigenous Courtwork Program began in the 1960s in part to ensure Indigenous people were not just pleading guilty to get out of the process without understanding the consequences (Department of Justice Canada, 2008).

There are no national statistics on guilty pleas in Canada. Some estimate that approximately 90% of criminal cases are resolved with a guilty plea (Kellough & Wortley, 2002). A guilty plea can benefit both the justice system and the accused (e.g., increased efficiency, reduced cost, more lenient sentence) (R. v. Anthony‑Cook, [2016]; King et al., 2005; Piccinato, 2004; Verdun-Jones & Tijerino, 2002). Factors related to guilty pleas include the number of charges and nature of evidence, plea bargaining, pressure from defence counsel and judges, length and cost of legal proceedings, and pre-trial detention (Albonetti, 1990; Baldwin & McConville, 1979; Erickson & Baranek, 1982; Euvrard & Leclerc, 2016; Feeley, 1979; Kellough & Wortley, 2002; McConville et al., 1994; Roach & Mack, 2009). Pre-trial detention is described as ‘‘an instrument of pressure by the system,” “a source of coercion,” and a strategy to extract guilty pleas in exchange for a reduced sentence (Euvrard & Leclerc, 2016; Kellough & Wortley, 2002; Vacheret et al., 2015, 120). According to Canadian research, accused held in remand were twice as likely to plead guilty as those released on bail (Kellough & Wortley, 2002). Interviews with Canadian remand prisoners illustrates, “The difficult conditions (dead time without participation in programs, overcrowding, etc.) and the stress, anxiety, and uncertainty associated with remand led the accused to feel that they had no choice but to plead guilty in order to escape a difficult situation” (Euvrard & Leclerc, 2016, 8).

Vulnerable people experiencing mental health or addictions issues, cognitive impairments, poverty, or homelessness may face added pressure to plead guilty. They may be less likely to have a surety in court and be released on bail (Webster, 2015). They may plead guilty to access alternative justice processes or specialized courts (e.g., drug treatment court, mental health court) (Clark, 2016). People with Fetal Alcohol Spectrum Disorder (FASD) may have a heightened degree of suggestibility that contributes to false confessions and guilty pleas (Roach & Bailey, 2009).

Race/ethnicity may be a factor in guilty pleas. Some studies revealed that black and Hispanic accused are more likely to go to trial (plead not guilty) than white accused because they have less trust in the plea bargain process or are offered fewer plea deals (Albonetti, 1990; Frenzel & Ball, 2007; Johnson, 2003; LaFree, 1980, 1985).

Indigenous people may have unique cultural considerations for pleading guilty, including language barriers and values around reconciliation and taking responsibility. The words ‘guilty’ and ‘innocent’ do not translate in many Indigenous languages, and one can interpret the question “How do you plead: guilty or not guilty?” as “Are you being blamed?” (Clark, 1989, 47-48; Rudin, 2007; Zimmerman, 1992). Other cultural considerations include the Indigenous phenomenon of ‘gratuitous concurrence,’ that is “when a person appears to assent to every proposition put to them even when they do not agree” (Legal Services Commission of South Australia; Roach, 2015; Rudin, 2007).Footnote 1 In addition, the fact that Indigenous people are more likely to be denied bail and overrepresented in remand may contribute to a higher rate of guilty pleas (Correctional Services Program, 2017; Manitoba Aboriginal Justice Inquiry, 1991). Moreover, the impact of colonialism and residential schools has left some Indigenous people distrustful of the justice system. According to the Manitoba Aboriginal Justice Inquiry (1991),

When they do engage the legal system, or become engaged by it, the manner in which their problems are dealt with often is out of tune with their unique position as Aboriginal people. As a result, they have come to mistrust the Canadian legal system and will avoid it when possible. Even when they do have to deal with it, we find that they simply minimize their exposure to it. This can take the form of inappropriate guilty pleas, failure to attend court appearances and a perpetual passivity that manifests itself in an apparent air of indifference about what happens to them in court.

To explore the issue of guilty pleas among Indigenous people, the Research and Statistics Division at the Department of Justice Canada interviewed justice system representatives from the Indigenous Courtwork Program, legal aid, and prosecutions. This research supports the Department’s mandate to review the criminal justice system, including the overrepresentation of Indigenous people in custody and gaps in services to Indigenous people.