aboriginal overrepresentation in the canadian criminal justice system essay

Indigenous Peoples in the Canadian Criminal Justice System:

Over-representation & systemic discrimination.

• Ally Sandulescu University of Alberta

Indigenous peoples are significantly over-represented in the Canadian Criminal Justice System. The over-criminalization and over-incarceration of Indigenous men and women is a major issue in Canadian justice. This article explores the systemic discrimination, stemming from colonial processes and socioeconomic marginalization of Indigenous peoples, which has impacted their representation and experiences in the criminal justice system as offenders. The article also explores some of the strategies and initiatives implemented by the justice system to address Indigenous over-representation, and the possible downfalls of such strategies which have impacted their effectiveness.

How to Cite

• Endnote/Zotero/Mendeley (RIS)

Developed By

Information.

• For Readers
• For Authors
• For Librarians

ISSN 2371-6258

Language selection

• Français

Notice to readers:

There have been recent reports of fraudulent phone calls that appear to be from the Department of Justice. Learn more .

Research at a Glance

Indigenous overrepresentation in the criminal justice system (cjs).

PDF Version

What we also found Footnote 1

• Most youth noted that preconceived notions of Indigenous people, for example that they are inherently criminal or addicted to substances, could lead police, courts, and judges to assume guilt or assign harsher punishments.
• Youth participants believed that personal experiences of Indigenous people should be taken into consideration by the CJS at all stages, specifically poverty, trauma, intergenerational trauma, mental health challenges, and substance use/abuse/addiction.
• To decrease Indigenous overrepresentation in the CJS, youth overwhelmingly supported addressing root causes of crime, increasing the number of Indigenous persons involved in policy-making, diversifying juries and increasing the use of community-based sentencing that focuses on healing and building connections within the community.
• The majority of youth felt that a multi-pronged approach is required to reduce Indigenous overrepresentation such as recruiting more Indigenous professionals in the CJS (including policy-makers), providing better training for non-Indigenous professionals in the CJS and using alternative justice measures.

In more depth

Youth noted that many Indigenous people, especially those on reserve, experience poverty. With fewer financial resources, Indigenous people may find it difficult to meet basic needs, access the services and supports they need, and navigate the legal system, which may lead to more Indigenous people in the CJS at all stages.

Youth agreed that Indigenous have experienced intergenerational trauma. Youth noted that Indigenous people may feel disconnected from their culture and beliefs, which could lead to unhealthy behaviours, such as substance abuse or violence as a means of problem-solving, and that this could be a reason that more Indigenous people are in the CJS.

Most youth agreed that Canadians require better awareness on the past and current circumstances that Indigenous people face in their communities and their overrepresentation in the CJS, including education in schools but also greater exposure to, and engagement with, Indigenous culture.

Youth believed a greater focus on and investing in Indigenous communities’ financial and economic success, including education and career opportunities on reserve, could decrease Indigenous overrepresentation in the CJS. They also believed increasing the use of Indigenous justice programs which focus on healing and building connections between Indigenous and their communities could decrease Indigenous overrepresentation in the CJS.

Youth supported diversifying juries to ensure that they include Indigenous and other marginalized persons.

Most youth supported increased advocacy by Indigenous people using social media to educate the public on their current living conditions, the inequities and other challenges they may face. Young people stated that the governments should listen and take action on the overrepresentation of Indigenous people in the CJS.

In their own words,

“The Justice system does “justice” in a very western way. I think if Indigenous people were able to control how justice works over their own people, and were allowed to provide rehabilitation systems and have other cultural systems in place, there would be a decrease in their representation in prisons.”  “Other socio-economic factors, for example the conditions that Indigenous people live in/ are raised in as children [increase their chances of ending up in the CJS]. Moreover, if a community burdens a minority group with negative stereotypes, those stereotypes and stigma can in turn cause the police to respond more violently or unrealistically accuse that minority group.”

Justice Canada, in partnership with the Students Commission of Canada (SCC) Footnote 2 , conducted youth engagement projects in both 2016 and 2017. Each project explored youth’s views and perceptions of and expectations of the criminal justice system. Each project explored youths’ views, perceptions and expectations of the criminal justice system. This was done through developing and hosting a Justice Youth Action Committee (YAC) Footnote 3 , gathering opinions through youth-led Community Action Projects (CAPs) Footnote 4 , and hosting a 5-day Canada We Want Conference Footnote 5 .

Youth Engagement on the Criminal Justice System (CJS) Project 2016

Fourteen Justice YAC members representing Indigenous, non-Indigenous, rural, urban, and other diverse populations participated in monthly video calls from September 2016 to February 2017. The calls focused on youth perceptions of crime and the CJS, guiding principles and values of the CJS, and the connection between vulnerability, marginalization, and criminalization. YAC members engaged over 350 youth from across Canada in CAPs to gather opinions and perspectives on the CJS. Committee members utilized surveys (hard copy and digital), interviews, and discussion groups to gather youth voice and reported back to the committee facilitators and during committee calls. Following each call, the youth went back to their communities to solicit feedback from other young people on the issues discussed in the calls. Four CAPs were completed. The engagement continued at the Canada We Want Conference, where the Justice System We Want theme team , a group of seventeen youth, from six provinces, one territory, representing Indigenous and non-Indigenous, Northern, and a number of other diverse populations, engaged in five days of discussion on the values and objectives that they hope the CJS would uphold in the future.

Youth Engagement on the Criminal Justice System (CJS) Project 2017

Eight Justice Youth Action Committee members representing Indigenous, non-Indigenous, rural, urban, and other diverse populations joined bi-weekly calls from June 2017 to March 2018. This project had an issue-based focus relevant to the work of Justice Canada. Issues covered included: bail and AOJOs, restorative justice, problem-solving justice, overrepresentation of Indigenous persons in the CJS, overrepresentation of persons with mental health and cognitive issues in the CJS, performance measurement of the CJS, and the perspectives of victims of crime. During the 2018 Canada We Want Conference the CJS theme team , a group of 11 youth and 2 youth facilitators from 2 territories and 5 provinces, representing Indigenous and non-Indigenous, Northern, and a number of other diverse populations, engaged in discussion around justice issues.

For the issue of overrepresentation of Indigenous people in the CJS, Justice Canada and the SCC provided the young people with data that demonstrated Indigenous overrepresentation in Canada’s CJS, both as offenders and victims of crime. Justice Canada and the SCC provided youth with some suggestions as to why this was the case, including the impact of colonialism, as well as suggestions for decreasing Indigenous representation in the CJS, such as more Indigenous courts. The SCC provided a questionnaire and a glossary of terms. Young people shared the survey in-person and online, collecting voice from 73 young people. The 2018 Canada We Want conference was very helpful in growing and diversifying the geographical reach and engagement of Indigenous youth; the theme team represented all regions of Canada with 8 of 11 members identifying as Indigenous, 6 of whom reside in the North (Nunavik, Nunavut, Yukon). This ensured we captured diverse voices, including Indigenous voices. The theme team members were acutely aware of the lived realities Indigenous people faced, (e.g., poverty, lack of basic needs, lack of support services), and the team’s discussion provided context that validated survey findings.

For further information on the findings and/or surveys mentioned in this document please contact the Department of Justice’s Research and Statistics Division ( [email protected] )

Thank you for your help!

You will not receive a reply. For enquiries, please contact us .

Language selection

• Français fr

Addressing the overrepresentation of Indigenous people in the criminal justice system in Québec

From: Department of Justice Canada

News release

Advancing reconciliation requires supporting culturally appropriate, Indigenous-led and community-based justice services. This is key to achieving systemic change in our justice system.

November 2, 2022 – La Tuque, Québec – Department of Justice Canada

Today, the Honourable David Lametti, Minister of Justice and Attorney General of Canada, the Honourable François-Philippe Champagne, Minister of Innovation , Science and Industry, and Member of Parliament for Saint-Maurice–Champlain, and Grand Chief Constant Awashish of the Conseil de la Nation Atikamekw announced funding to address the overrepresentation of Indigenous peoples in the criminal justice system and provide community-based justice services to Indigenous peoples in Québec.

The Programme de justice communautaire Atikamekw (PJCA) delivers a variety of justice services to meet the specific needs of the Atikamekw Nation in Wemotaci and Manawan, Québec. These include services in the areas of family mediation, victim support, prevention, diversion and reintegration. By providing culturally appropriate, community-based justice services, including Gladue Aftercare services, the PJCA contributes to lowering the risk of recidivism in the community as well as the overrepresentation of Indigenous people in the criminal justice system in Québec.

Justice Canada is providing $908,750 over five years through the Indigenous Justice Program to the Conseil de la Nation Atikamekw to support their efforts to address the overrepresentation of Indigenous people in the criminal justice system. This includes:

• Community-based justice program (PJCA): $537,500 over five years for the continued delivery of community-based justice services under the PJCA, and an additional $181,250 over three years in program integrity funding to support the increased demand for these services in the community
• Gladue Aftercare services delivered through the PJCA: $190,000 over three years to support the delivery of Gladue Aftercare services, to assist individuals in reintegrating into their communities in a safe and culturally appropriate way

Addressing the systemic factors that contribute to the overrepresentation of Indigenous people, as well as systemic racism in the justice system, is part of the Government of Canada’s commitments outlined in the  Federal Pathway to Address Missing and Murdered Indigenous Women, Girls, and 2SLGBTQQIA+ People . Today’s announcement also supports Canada’s efforts to advance reconciliation in Canada and respond to the Truth and Reconciliation Commission’s (TRC) Calls to Action.

Additional multimedia

“Thanks to its efforts over a number of years in the context of the Programme de justice réparatrice Atikamekw , the Atikamekw Nation is seen as a model in the field of restorative justice. Our methods aim not only to bring about justice for victims but also to ensure that offenders do not reoffend and to limit involvement of the criminal justice system. The work is not easy and, for this reason, I am pleased to see the Conseil de la Nation Atikamekw’s expertise being recognized, along with the high quality of Atikamekw Onikam social services providers. Let’s keep going on the right track.” Grand Chief and President Constant Awashish Conseil de la Nation Atikamekw

“Indigenous peoples are alarmingly overrepresented in Canada’s criminal justice system. By providing support for Indigenous justice services, such as Gladue Aftercare, we are helping bring systemic change to address this unacceptable reality. These investments will support our efforts to address systemic discrimination against Indigenous peoples, and improve access to justice and fairness in our justice system.” The Honourable David Lametti, P.C., Q.C., M.P. Minister of Justice and Attorney General of Canada

“Collaboration and partnership with Indigenous organisations is critical to advancing reconciliation and transforming the relationship between Indigenous peoples and the justice system. The Conseil de la Nation Atikamekw is a vital partner in these efforts and in creating healthier, vibrant and safer communities in Québec.” The Honourable François-Philippe Champagne Minister of Innovation, Science and Industry, and Member of Parliament for Saint-Maurice–Champlain

Quick facts

The Conseil de la Nation Atikamekw (C.N.A.) is the official representative of the Atikamekw Nation on the regional, national, and international stage. The C.N.A. defends and promotes the social, economic and cultural rights’ and interests of the Atikamekw Nation, and ensures the delivery of programs and services at the community level.

To help reduce the overrepresentation of Indigenous peoples in the criminal justice system, the Government of Canada’s 2020 Fall Economic Statement invested $49.3 million to support the implementation of Gladue Principles in the justice system across Canada, as well as Indigenous-led responses. Support to the Conseil de la Nation Atikamekw for the delivery Gladue Aftercare services through the PJCA is part of this investment.

The implementation of Gladue Principles in the justice system responds to the TRC’s Calls to Action 30, 31 and 38, and to the National Inquiry into Missing and Murdered Indigenous Women and Girls’ Calls for Justice 5.11, 5.15 and 5.16.

Justice Canada’s Indigenous Justice Program (IJP) supports Indigenous community-based justice programs that offer alternatives to conventional justice processes in appropriate circumstances. The program’s objectives are:

• to assist Indigenous people in assuming greater responsibility for the administration of justice in their communities;
• to reflect and include Indigenous values within the justice system; and,
• to contribute to a decrease in the rate of victimization, crime and incarceration among Indigenous people in communities with community-based justice programs funded by the IJP.

Associated links

• Conseil de la Nation Atikamekw – Atikamekw Sipi (in French only)
• Federal Pathway to Address Missing and Murdered Indigenous Women, Girls and 2SLGBTQQIA+ People
• 2021 Missing and Murdered Indigenous Women, Girls and 2SLGBTQQIA+ People National Action Plan: Ending Violence Against Indigenous Women, Girls and 2SLGBTQQIA+ People
• Fall Economic Statement 2020: Supporting Canadians and Fighting COVID-19
• Indigenous Justice, Recognition and Reconciliation

For more information, media may contact:

Chantalle Aubertin Press Secretary Office of the Minister of Justice and Attorney General of Canada (613) 992-6568 [email protected]

Media Relations Department of Justice Canada 613-957-4207 [email protected]

Rejean Nequado Communications coordinator Conseil de la Nation Atikamekw 819-676-7139 [email protected]

Stay connected

• Follow the Department of Justice Canada on Twitter , Facebook , YouTube and LinkedIn .
• Follow Minister Lametti on Twitter: @MinJusticeEn
• Subscribe to receive our news releases and more via RSS feeds. For more information or to subscribe, visit https://www.justice.gc.ca/eng/news-nouv/rss.html .

Page details

• Skip to main content
• Skip to "About this site"
• Accessibility
• Departments

Language selection

• Français
• Search and menus

State of the Criminal Justice System Dashboard

Understanding the overrepresentation of indigenous people in the criminal justice system.

Indigenous people are overrepresented in the Canadian criminal justice system as both victims/survivors Footnote 8 and accused/convicted individuals. For example, in 2014, a significantly higher proportion of Indigenous than non-Indigenous people in Canada (aged 15+) reported being victimized in the previous year (28% vs. 18%). Footnote 9 In 2016/2017, Indigenous adults accounted for 30% of provincial/territorial custody admissions, 27% of federal custody admissions, and 27% of the federal in-custody population, while representing 4.1% of the Canadian adult population. Footnote 10 At the same time, Indigenous youth accounted for 50% of custody admissions, while representing 8% of the Canadian youth population. Footnote 11 These proportions have been trending upwards for over 10 years.

To understand fully the overrepresentation of Indigenous people in the criminal justice system, it is necessary to consider the context in which it is occurring. In the spirit of truth and reconciliation , the following information provides an overview of some of the literature on factors contributing to such overrepresentation. It includes references to numerous studies, inquiries and commissions undertaken since the 1980s, as well as judicial and program responses implemented to address overrepresentation. Additional information about the experience of Indigenous peoples' interaction with the criminal justice system can be found in the Studies section of the Dashboard.

In 1996, the Report of the Royal Commission on Aboriginal Peoples was released. It found that the greatest contributor to overrepresentation were the colonial values underlying Canadian criminal laws, policies and practices that have had negative impacts on Indigenous peoples. Footnote 12 As a result of Canada’s colonial history, Indigenous peoples have been subjected to assimilation policies and practices that have created collective and individual intergenerational trauma resulting in negative impacts on social determinants of health for many. Their experiences, often compounded by inadequate housing as well as limited education and employment opportunities, have been identified in the literature as contributing to Indigenous people being in contact with the criminal justice system more often and for longer periods than non-Indigenous people.

Canada’s Colonial History

Colonialism has led to cultural alienation , territorial dispossession , intergenerational trauma , systemic discrimination , and socio-economic marginalization , which together continue to have profoundly negative impacts on the lives of many Indigenous people today. Footnote 13 Cultural alienation and intergenerational trauma caused by policies such as the residential school system, removal of Indigenous children from their families during the 60s scoop and ongoing child welfare practices, have affected relationships and contributed to the erosion of familial and community ties. This has had complex and tragic results, with ongoing consequences for many, such as high rates of serious physical health problems, issues with mental health and cognitive impairment, suicide, physical and sexual abuse, alcohol and drug abuse, interpersonal violence, family breakdown, and involvement both as victims/survivors and accused/convicted persons in the criminal justice system. Footnote 14

Colonialism was identified by the Truth and Reconciliation Commission in 2015 also leading to the disempowerment of Indigenous women by replacing existing forms of Indigenous government, in which women held significant influence and powerful roles in many First Nations. Footnote 15 The National Inquiry into Missing and Murdered Indigenous Women and Girls Interim Report in 2017 and other studies also indicate that Indigenous women are often devalued in Canadian society, leading to alarming rates of violence and increased interaction with the criminal justice system as both victims/survivors and accused/convicted persons. Footnote 16

Systemic Discrimination

Systemic discrimination throughout the criminal justice system, including policing, the courts and in corrections has been identified as a serious issue by the Supreme Court (e.g., R v Gladue, Footnote 17 R v Wells, Footnote 18 and R v Ipeelee Footnote 19 ) and by several commissions of inquiry for well over 30 years. Information on the specific governmental, legislative and judicial inquiries and responses to this issue can be found in the links available on the Learn more page.

Within the literature, the issues of Indigenous people being both over-policed and under-policed has been identified as an example of systemic discrimination. Footnote 20 Although there is currently no data that is available, Indigenous people are believed to be more often targeted by police, which leads to more contact with courts than non-Indigenous people. At the same time, studies have found that biases have led to Indigenous people being seen as less worthy victims by the police, having their credibility questioned, and their requests for assistance ignored or not adequately supported. Footnote 21

Of the adults admitted to custodial facilities, the proportion who are Indigenous has been trending upwards for over 10 years. Footnote 22 Even with the addition of section 718.2(e) to the Criminal Code Footnote 23 that requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of Indigenous people convicted of an offence, Footnote 24 alternative sentencing options are believed to still not be regularly used outside specialized courts such as Gladue Courts . Footnote 25

Some studies suggest that one of the factors contributing to the high number of custodial sentences is that Indigenous people are denied bail more frequently, resulting in longer periods of pre-trial detention or remand than non-Indigenous accused. Footnote 26 No data are currently available to confirm or deny this notion. For bail to be granted, a number of conditions are often placed on an individual. These can include the need to identify someone willing and able to make a payment to the court if the accused breaks a condition of their release. This can be difficult for those involved in the criminal justice system given they are likely to be living in poverty, homeless, or struggling with addictions or mental health issues. Footnote 27

Further, a 2012 special report by the Federal Correctional Investigator Footnote 28 highlighted that in comparison to non-Indigenous people, Indigenous people serve disproportionately more of their sentence behind bars. They are underrepresented in community supervision populations and overrepresented in maximum security institutions. They are also disproportionately more involved in institutional security incidents, use of force interventions, segregation placements and self-injurious behaviour. Footnote 29

The literature has demonstrated that the impacts of colonialism and systemic discrimination have resulted in disproportionate rates of incarceration of Indigenous people. Even when economic risk factors (such as employment, poverty, severe family conflict, and alcohol and substance use issues) are taken into consideration, Indigenous ancestry still appears to be highly associated with incarceration. Footnote 30

Socio-economic Marginalization

Many people coming into contact with the criminal justice system face challenges such as mental health and substance use issues, poverty, homelessness, and past experiences of violence, trauma, and victimization. However, it is the loss of culture and language, social and political inequalities, intergenerational trauma, and economic barriers that have led to different experiences for Indigenous peoples from other groups, including overrepresentation, in the criminal justice system. Footnote 31

The impact of socio-economic marginalization on the overrepresentation of Indigenous people in the Canadian criminal justice system has been identified as significant within the literature. Footnote 32 Indigenous people in Canada have a higher unemployment rate, and lower levels of educational attainment than non-Indigenous people. Footnote 33 They have disproportionately more inadequate housing Footnote 34 and poorer health outcomes. Footnote 35 These conditions, as well as poverty, limit the opportunities and life chances for Indigenous people, forming the basis for the vulnerability of some and increasing their likelihood of involvement with the criminal justice system. Footnote 36

Once in the criminal justice system, socio-economic marginalization continues to affect some Indigenous people. A recent study by Correctional Service Canada that examined individual needs of offenders in federal custody found that Indigenous people continue to present higher needs than non-Indigenous people in areas such as employment, education, health and housing. Footnote 37 Risk assessment tools used in sentencing and correctional plans are built using these same factors to establish risk (education level, employment, financial situation and housing). As a result, Indigenous people convicted of an offence are more likely to be assessed as high risk. Footnote 38

Cultural Differences

There are many different Indigenous cultures within Canada, yet overall Indigenous worldviews on justice and addressing harm have many similarities. Although both Indigenous and Western forms of justice include the principles of deterrence, denunciation, incapacitation (for public safety), and rehabilitation, it is in the application of these principles and in the approaches used to address the wrong-doing or harm that differ. For example, for Indigenous peoples, justice as reflected in Indigenous legal traditions is relational in nature and based on kinship. The focus is on relationships, on restoring peace and balance within the community, and on addressing harm through healing and reintegration. Footnote 40 In comparison, Western approaches to justice, outside of the inclusion of restorative justice principles , tend to be less relational given that crimes are considered to be against the State rather than those that received the harm. These fundamental differences can lead to further trauma and overrepresentation of Indigenous people in the criminal justice system. Footnote 41

In addition to different worldviews, the normative behaviours that are part of Indigenous cultures can be misinterpreted by Western justice system officials. Footnote 42 For example, Indigenous witnesses avoiding eye contact in court is a sign of respect but may be interpreted as a sign of guilt, or another example is the court interpreting a legal plea of guilty as the same as taking responsibility or blame of a harm caused. Footnote 43

The implementation of culturally relevant community-based justice programs helps to address the impact of cultural differences within the criminal justice system. The development of justice-related programs and services by Indigenous communities based on local needs and tailored to local cultures and traditions have had positive results. For example, Indigenous accused/convicted persons who have participated in community-based justice programs have lower rates of reoffending when compared to Indigenous accused/convicted persons in the mainstream Western criminal justice system. Footnote 44 Indigenous approaches often reflect restorative justice principles and healing. They are relational in that they directly involve those involved in the harm that was done including the community. They are seen as effective approaches to problem-solving, addressing harm by offering support and opportunities for healing that have long lasting remedies. Footnote 45

For related studies and resources, please click on the link above.

Share your study

Click on the link above to learn how to share your study on Indigenous people’s experiences interacting with the criminal justice system