INDIGENOUS OVERREPRESENTATION IN THE CANADIAN CRIMINAL JUSTICE SYSTEM
The increasing status of Indigenous overrepresentation is a clear indication of the failures of the Canadian Criminal Justice System. When analyzing the historical and current situation of the relationship between Indigenous persons and the CJS it becomes apparent why the Supreme Court of Canada refers to this situation as the ‘Crisis in the Canadian Justice System’. Correctional Service Canada statistics have indicated that although Aboriginals represent approximately 2.8% of the total Canadian population, they account for 18% of individuals incarcerated in federal institutions (Proulx, 2000).
The sad reality behind this evident overrepresentation is the understanding that First Nations youth are more likely to go to jail, than to graduate from high school. It is evident to note that the difficulties faced by Aboriginal people start even before their interaction with the police. Indigenous people are already greatly marginalized, dating back to the hardships they experienced through the events of colonialism. It becomes interesting to understand that a system, which aims to provide justice for all Canadians, systemically discriminates against Aboriginal people, for simply being Indigenous.
The experiences faced by Aboriginal people by the justice system have been described as Canada’s national disgrace (McMaster, 2011).
Among the many factors that contribute to the overrepresentation of Aboriginals within the Criminal Justice System, such as the legacy of colonialism and low socio-economic capital, the entrenched systematic discrimination in the CJS will be examined. Police and courts discretion, all relay back to the high rates of incarceration of Aboriginals which result in overrepresentation of Indigenous people at all parts of the justice system.
Aboriginals face great challenges in the ways in which law enforcement is managed against them. There are currently eight commission of Inquiry’s that are directly dealing with Aboriginals, which is a clear indication of the seriousness of the problem (McMaster, 2011). Police play a huge role in relation to Aboriginals and their association with the CJS. They are the ones that patrol, make the arrests, and have the power to maintain arrests.
Results of overrepresentation are in part due to high level of police-reported crimes, what officers perceive as dangerous, threatening, or aggressive are all related back to the systemic discrimination entrenched within the police force (Gorelick, 2007). Their discretion in relationship with Indigenous individuals is astonishing, and research has proven that there is great systemic discrimination within the police force. For as long as we can remember, all sorts of stereotypes have emerged in relation to Indigenous people, and these stereotypes have been reinforced by the ‘canteen culture’ of police institutions (Melchers, 2003). The National Aboriginal and Torres Strait Islander (NATSIS) survey provided evidence that police harassment and discrimination against Aboriginals is evidently widespread (Tzay, 2007).
The understanding of over-policing and under policing plays a significant role in the ways in which discretion is used against Indigenous people. Members of the survey argued that the process of over policing, which is prevailing in many Indigenous communities, is a clear suggestion that Aboriginal people are in need for more enforcement and surveillance (Tzay, 2007). This understanding is a result of apparent discrimination and stereotyping by police forces. According to research, the impact of over-policing on Indigenous women have resulted in women being approximately 58 times more likely to be placed in prison (Stone, 2011). Many Aboriginals have complained about being stopped by a police officer on the street and questioned about their activities and whereabouts. On July 9, 2003, a police officer stopped Garry Mckay, while he was walking with his like-new bicycle.
Although there was no match in description of the bike that was reported missing and Garry’s, he was stilled placed under arrest by the officer (Edwards, 2011). In March of 2011, the Human Rights Tribunal Ontario stated that Mr. McKay was in fact a victim of racial profiling (Edwards, 2011). This case is a key example of the mistreatment and negative perceptions police services have on the Aboriginal community. An Aboriginal girl in Winnipeg told survey applicants, that the police stopped her boyfriend, merely because he was seen running down a street to meet her (Mildren, 2008). The sight of an Aboriginal youth running provided the police with ‘a cue for action’. Obviously the reaction and attitude by the police officer, was stereotypical and discriminatory.
Police services as well as the CJS as a whole; clearly fail to abide by the regulations, which are outlined within our Canadian Charter 1982 as well as the Ontario Human Rights Code. Section 8, 9, 10, and 15 of the Charter are all sections that are designed towards ensuring that everyone is entitled to fair and equal treatment in regards to search and seizure, interrogations, detentions and arrests (CCRF, 1982). Police discretion is the basis of Aboriginal involvement in the Criminal Justice System. If officers did not act in accordance to their stereotypical views and discriminatory practices, then many Aboriginals would never come into contact with the CJS (Gorelick, 2007). Their racist views and stereotypical notions put Aboriginals at risk, for simply being an Aboriginal. In Williams Lake, RCMP officers seriously assaulted a 17-year-old Aboriginal girl while she was handcuffed in a police vehicle.
She suffered serious facial wounds after being repeatedly punched (“Williams lake girl, 2011). This is direct evidence of the mistreatment and harassment Aboriginals have to face for simply being Indigenous. Even though, the government attempts to implement all rules and regulations that require police services, to not use discrimination as a factor to influence stops and arrests, there are many instances where the police remain to act through systemic discrimination.
The famous documentary, Two Worlds Colliding, directed by Tasha Hubbard exposes the problems and definite acts of discrimination and negative attitudes between Aboriginal Canadians and the Saskatoon Police force (2005). Even as the legislation and rules have been enforced and taught to all police services and people associated with the criminal justice system, there are still disturbing and ubiquitous cases that are correlated to systemic discrimination and overrepresentation. Aboriginals are treated as though they are not human, their rights are violated, and their lifestyles are strictly associated with stereotypical views in the eyes of the police forces (Tzay, 2007).
The police also have the discretion to give notice of appear or maintain the arrest. Research has indicated that Aboriginal people have been treated more harshly than non-Aboriginals for the same offence and conditions (Tzay, 2007). Systemic discrimination is a root factor that contributes to these attitudes. The famous case of Donald Marshall Jr. who was a 17-year-old Aboriginal boy from Nova Scotia, was charged with murder that he did not commit. He was sentenced to 11 years in a federal penitentiary, where he was finally released (Mildren, 2008). The commission concluded, that there was racism in the police system and in the Crown prosecution, as neither did their job properly, and the police services were simply looking to tag a murder on somebody (Mildren, 2008).
Through this mistreatment, and transparent discrimination, the police officers used their discretion and stereotypical judgment to put an innocent youth behind bars, simply for being a good ‘match’ as an offender. Many discriminatory beliefs against Aboriginals have constituted for their experience before a judge, and the deciding factor if they are granted bail or not (Mildren, 2008). It is also important to note that a report was written based on the Canadian Race Relations Foundation, which provided seven factors that may have to racial profiling in the police force (“Canadian race relations”).
Overall what was stated in this report was that, police tend to abuse their authority, they have a feeling of power which may be executed inappropriately, the “blue wall” has made officers become very protective over one another, there is inadequate training on how to deal with minorities and how to treat people equally, there is a perceived existence of the social, cultural and economic gap between the police and minorities, a lack of operative strategies to identify racist behavior, attitudes and actions, and lastly, a lack of appropriate sanctions when racial profiling has occurred (“Canadian race relations”). These elements are definitely associated with the occurrence of systemic discrimination, and be identifying them show that there is recognition of the existence of these acts.
The policing aspect is not the only area of the Criminal Justice System where there is evident systemic discrimination, the courts of Canada relay many areas where discrimination is put forth against Aboriginals which leads to overrepresentation. Upon the arrest, if the potential jail time is up to five years, the individual would stand before a judge and either be granted Judicial Interim Release, and if denied, the accused would have to wait in pre-trial detention (Mildren, 2008). The judge, who makes this decision, has to weigh in several factors that will assist in making the decision. Whether the accused is released prior to trial depends on two major factors, 1. If the accused is going to show up to the hearing or 2. Will he/she be perceived as a danger to the public or oneself? In order for the judge to get a sense as to how to answer these questions, there are certain inquiries that the court looks at (LaPrairie, 2002).
Does the accused have permanent residence, are they employed, do they have community support, stable income (if needed to pay a fine). This procedure alone is a classic example of systemic discrimination against Aboriginals, because it all relates to poverty and the socio-economic conditions of Aboriginals. The Criminal Justice System has set up this certain criteria, which evidently happens to discriminate more against Indigenous peoples just by the virtue of the questions they have asked (LaPraire, 2002). Canada has a very high remand rate; there is blatant discrimination against Aboriginals because their rate is significantly higher in comparison to their counterparts (Mildren, 2008). When Indigenous people are in remand, research has proven they are in, for up to seven times longer (Mildren, 2008).
This results in overcrowding, since judges are systemically discriminatory, many Aboriginals have to wait in jail for months until their trial date, even if they are innocent. Approximately 66% of Aboriginals are in remand, which evidently contravenes the international agreements, which states that the general populations, the persons who have been convicted of a charge, are not supposed to be mixed with the remand population, however this is done (LaPrairie, 2002). There have been many instances where the courts have put Aboriginal accused in remand for many years, which closely ties with the belief that Indigenous people are less than equal, and their freedom and rights are simply ignored. The dismissal of the Askov case resulted in the courts creating the Askov rule, where those who are in pre-trial detention must have a trial within two years (Perreault, 2009).
This indicates that the system has an extreme amount of burden placed on the courts, where they cannot handle what needs to be done. Since the likelihood of being denied bail is very common, not only does the accused have to face the consequences of systemic discrimination, but this process also has severe implications on the entire family (Perreault, 2009). In many cases, the accused is typically the breadwinner of the family, which means they would often lose their job because they are unable to go to work since they are denied bail. A major study conducted in Queens, concluded that discrimination against Aboriginals is more prevalent when they are more likely to be sent to jail before trial in comparison to someone who has money or is more respectable (Fitzgerald & Weatherburn, 2008). This built-in bias contributes to the overrepresentation in the Criminal Justice System. By acting more harshly against Indigenous persons on systemic factors such as income, status or stereotypes, evidently paves way for an increase of Aboriginals that come into contact with the system (Fitzgerald & Weatherburn, 2008).
Another major part of the Court system that contributes to the high overrepresentation rate of Aboriginals, is the sentencing aspect. In 1996, the sentencing provisions of the Criminal Code were significantly amended, after RCAP made distinct recommendations in 1995 (Proulx, 2000). Among the amendments was section 718.2(e), which instructed judges to look for alternatives to imprisonment that are reasonable to the circumstance, “…with particular attention to the circumstance of Aboriginal offenders”. The governments began to realize that overrepresentation was a major problem, and the reality that Indigenous people were being incarcerated at an extremely disproportionate rate. This new law gave the Criminal Justice System more sentencing options for Aboriginals, and attempted to eradicate the ‘one-justice-fits-all’ approach (Proulx, 2000).
This, however, did not mean that Aboriginal offenders would receive a shorter sentence, or a ‘get out of a jail free card’; rather, judges could now consider two important factors. The first thing judges were asked to consider was what background and systemic factors that has brought the individual to court, and second, what available sanctions including community options are available and best suitable for the accused (LaPrairie, 2002). Although this was implemented in the late 1990’s, research has proven that 10 years later, overrepresentation has actually increased as opposed to decreased (LaPrairie, 2002). Judges are not given all the necessary information they need to apply these two factors that are entrenched within the Gladue (LaPraire, 2002). The built-in systemic discrimination by the judges makes it easy for them to ignore these considerations, and automatically sentence the offenders to prison.
The aim of this section was to keep Aboriginals out of jail, and seek other alternatives that support the idea of restorative justice (Perreault, 2009). Our current legal system tends to be adversarial, however in Aboriginal culture, individuals look at the process as a problem solving exercise, where support and rehabilitation is offered to the individual, and work to help the accused reintegrate properly into society (Perreault, 2009). It is sad to note that Aboriginals remain a target of systemic discrimination, and judges and the court environment fail to implement section 718.2(2), for the purposes of reducing this apparent overrepresentation.
The court setting itself, disadvantages Aboriginal people which in turn increases the rates of individuals who are ultimately charged and sentenced. Many Aboriginal offenders have a language barrier, and although section 14 of the Charter gives right for an interpreter, this often does not happen (Mildren, 2008). This places Aboriginal people at a hindrance, and puts them at a greater risk of being convicted, due to the fact that there is a communication barrier. Legal aid is also a problem for many Aboriginal offenders. Since many Indigenous people are associated with socio-economic marginalization, legal aid becomes their only option in terms of representation.
As a result, very few lawyers become available to represent those Aboriginals who were in need, and if they happened to get a lawyer, they would spend very little time with their client because of the overload of cases they have to deal with (MIldren, 2008). The fundamental lack of resources that are essential in any case, evidently result in the conviction and overrepresentation of Aboriginals in both the courts and corrections of the Criminal Justice System. The situation of the court alone makes this process extremely difficult and intimidating for the accused at trial, especially in circumstances where the Aboriginal individual is in a foreign setting. Since the public is free to attend, and the accused is likely to not be familiar with the court context, the individual tends to feel overwhelmed and placed in a nerve-racking position (Mildren, 2008).
In circumstances like such, the accused tends to plead guilty, even though they may be innocent. Research has indicated, that this is done because they have little to no support, are unaware of what is happening, intimidated by the people in the court room, and thus just ‘want to get it over with’ (Mildren, 2008). This example is a clear indication of the reasons why the Criminal Justice System is full of Aboriginals. The lack of resources and essential components of a case are often denied to Aboriginal individuals, and because of the lack of education, legal advice, and support, more and more people are filtered right through into penitentiaries, even though they do not belong (Fitzgerald & Weatherburn, 2003).
The shortcomings of the Criminal Justice System towards Aboriginal people are most clearly illustrated in the overrepresentation of Aboriginal people in Canadian penitentiaries. People are undoubtedly mistaken if they believe that systemic discrimination ends in the courtroom, because prisons are the homes to many Aboriginal people. Corrections are understood as the last step of the legal process, after the police have arrested an individual, and convicted by the courts, they are now imprisoned. In the annual 2008/2009 report of the Office of the Correctional Investigator, it was publically announced that Aboriginal corrections is clearly a big problem, and the extended overrepresentation is getting worse and worse by year (McMaster, 2011). In 2007/2008, Aboriginal adults were constituted as 22% of admissions to federal/territorial correctional institutions, and Aboriginal women made up of 32% of women in federal penitentiaries, while only constituting merely 3% of the women in Canada (Proulx, 2000).
In Saskatchewan, Indigenous adults are 11% of the adult population; however make up 8% of the jail population. Incarceration rates for Aboriginal people are approximately 5 to 6 times higher than the national average (Proulx, 2000). These figures are astounding when recognizing the disproportionate representation. These numbers are in part due to the systemic discrimination that has rooted from police services to the courts; the main reason why these rates are extremely high is because of the unbalanced and discriminatory approach used when dealing with Aboriginals and the justice system. Statistics provided from Correctional Services show that Aboriginal inmates are generally younger according to the 2005/2006 study. First Nations youth were accounted for 31% of admissions to sentenced custody, however only represented 6% of the entire youth population (Sprott & Doob, 2007).
The sad reality is that systemic discrimination puts them at an extreme disadvantage, portraying them as more disobedient, dangerous, troublesome and thus a greater risk to the general public. The challenges they have faced through the police and courts process is ongoing and transfers directly to the sentencing and conditions of the jail. The 2005/2006, Annual Report of the Office of Correctional Investigator found that the Correctional Services Canada, commonly classified Aboriginal offenders at higher security levels than other inmates, who have committed the same crime under the same conditions (Brown, 2006). This evidently concludes the perception that these individuals have lower reintegration potential, and thus are placed in segregation more often, limiting their access to appropriate programming.
Their denial of rehabilitation and educational programs makes it much more difficult to be granted parole (Brown, 2006). In Howard Sapers Annual Report he stated that Aboriginals are more likely to be overlooked for early parole and thus end up serving more time behind bars than suitable (Brown, 2006). Sapers argues that because of the lack of programming, when Aboriginal inmates are finally released, they are more likely to reoffend because they have not addressed their problems and are not rehabilitated properly to reintegrate into society. “…The correctional service must do a better job of preparing aboriginal offenders while in custody…” (Brown, 2006). There are also many evident problems with the idea of conditional sentencing.
Although section 718.2(e) supports the idea of different approaches to incarceration, many times the resources are unavailable to seek these alternatives through (Proulx, 2000). In many areas there is a lack of facilities to monitor the conditions imposed on the accused; there is no probation officer, social worker etc. It thus evidently becomes difficult for Aboriginal communities to support the idea of alternatives, and often times many people are sent to jail when they should not be (Proulx, 2000). This contributes to the overcrowding of jails, and ultimately the process results in the revolving door syndrome, because those who are not supposed to be in jail become exposed to these institutions and the interactions made tend to increase potential misconduct.
Doob and Sprott (2007) concluded that sentence lengths and likelihood vary depending on jurisdictions, while some areas sentencing is tougher and others not as tough. Their research indicated that although decisions vary, sentencing for Aboriginal offenders were more likely to go to jail in comparison to their white counterparts, regardless of location. Results have indicated that 50% of prisoners in Prairie Provinces are Aboriginals, where disproportionality is highest, and least in Quebec and Maritimes (Doob & Sprott, 2007). These decisions evidently have serious implications for individuals and their families. Not only does imprisonment lead to struggles of the family, but also incarceration itself has many negative repercussions. Until recently in Nunavut, there was only one jail, which was a huge problem. Since there was clearly overcrowding, and jail cells were designed for only two people, the prison had nowhere to put this excessive amount of offenders (Proulz, 2000).
Correctional facilitators had to put 4-5 people per room, where individuals ended up sleeping in hallways on mats because of the overcrowding. This resulted in contravening international regulations where prisons were not allowed to do “double bunking”. This is evidently a major problem; the implementation of section 718.2(2) where judges are directed to impose alternatives to sentencing is clearly not being applied. Evidence has indicated that prison fails to rehabilitate offenders, and offers very little programming that can be used to ensure the individual is improving, and reforming through the imprisonment process (Stone, 2011).
Although there have been slight steps towards the reduction of overrepresentation in the Criminal Justice System, there still remains great improvements that can be made to amend the current state and recover Canada into the equal and fair nation they claim to be so proud of. After years of realizing the severity of the overrepresentation of Indigenous persons in the CJS, Canada has begun to understand that they needed to develop new systems and procedures to make steps in favor of eradicating systemic discrimination, which evidently leads to overrepresentation. In 1999, Gladue Courts stated that overrepresentation of Aboriginal people in the CJS is clearly a crisis (Knazan, 2003).
The implementation of the Gladue Court is a front-runner in specializing in Aboriginal courts. This was a huge step in favor of Indigenous people. The judges, lawyers, and crown are specially trained, and are very committed to Aboriginal issues, which ensures that those who are brought before the court are adequately investigated and penalized appropriately to the circumstances in which they are placed in. There are now three Aboriginal Persons court in Toronto, which has resulted in the incorporation of traditional programs, and culturally relevant alternatives to assist the accused. The expansion of Gladue courts across the province provides greater hope for the reduction of Aboriginals within the system (Knazan, 2003). The courts can identify discriminatory influences that have contributed to the accused before the court, as well as look at the factors in their life that have potentially played a role in their behavior. Gladue court workers can provide alternative sentencing and offer various programs that can assist the individual recover from any lifestyle or family problems.
Another important aspect to the sentencing provision was the presence of a Gladue caseworker. These workers write Gladue reports, which contain extensive amount of information, and provide the sentencing judge with valuable information on the life circumstances of the offender as well as possible recommendations for sentences. These suggestions are incorporated to help assist the problems that have brought the individual to court. This innovation is crucial; as outside judges do not generally get information they require in order to make proper sentencing alternatives. One of the key innovations that were associated with Aboriginal persons courts, was applied to bail decisions. If Canada begins to adopt more Gladue courts, or the attributes that these courts possess, then it will become evident that these courts provide a hopeful opportunity to turn these high numbers that are in justice system around.
Court officials have to be trained adequately and should be completely forced to abide by the provision of section 718.2(e). By doing so, this can eliminate systemic discrimination and comprehend factors that have associated the accused with the behavior conducted. This will allow the court to get a better sense of what problems need to be addressed, and thus order an applicable alternative where the offender can learn, and heal. Although it is currently mandatory for judges to take this section into consideration when dealing with Aboriginal individuals, the sad reality is, the section is not being applied as intended. Judges should be given all the necessary background information, to ensure that all evidence and material regarding the individual is assessed. Many times, judges sentence the offender to jail without knowing the difficulties and problems faced by this individual.
This in fact promotes to the problem instead of addressing it, which is what section 718.2(e) aims to accomplish, along with preventing people from going to jail when possible. Since restorative justice is a crucial component in the criminal justice system, courts have to ensure that there are available programs that are culturally relevant, and will seek to rehabilitate the individual. Aboriginals often see justice as a healing process, therefore resources and facilities should be allocated to communities to ensure that there are community justice committees that work together to heal all the people involved, and provide counseling, and for the youth, programs on the land.
It is important to tie justice back to the cultural roots, and create programs that teach children abut traditional values and skills. By doing so, alternatives to sentencing are supported, and keeping individuals out of jail when reasonable is accomplished. The idea of restorative justice should be supported and encouraged by court officials and the overall justice system to ensure that the appropriate treatment is provided and culturally suitable programs are geared to not only the offender, but also all the members involved.
Overall systemic discrimination is one of the major reasons that contribute to the overrepresentation of Aboriginals within our Criminal Justice System. Systemic discrimination is rooted at all parts of the CJS, and has disadvantaged the Aboriginal population because of this bias and negative perception to those of Indigenous decent. The Canadian law promotes the fact that everyone is entitled to equal treatment and fair policies administered towards him or her. Evidence and research has proven that First Nations people experience harsher treatment, are more readily deprived of their rights, and are sentenced to jail at extremely high rates.
It becomes clear to see that Canada has a long history of incidents influenced by systemic discrimination, however as we progress in time, the government and criminal justice system as a whole is working towards improving the current state. With the proper implementation of Gladue courts, section 718.2(e) and the support of restorative justice, systemic discrimination can become non-existent, and the astounding numbers of Aboriginals in the CJS can start to turn around.
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