Indigenous peoples in Canada suffered from widespread colonizers’ harassment and discrimination, losing life and property, with their children being killed and subjected to torturous slavery for the new settlers’ comfort. Most notably, these include the residential school system in Canada, which took Indigenous children as young as four years old from their homes (Barnes et al., 2006). Although the residential schools have closed, the adverse impact caused by these schools continues to span generations and continue to leave a lasting scar on Indigenous communities across Canada. Moreover, Indigenous peoples still face stereotyping and racism that remain embedded in many facets of the Canadian culture and society.
One of the main facets of Canada that continue to be embedded in systemic racism and prejudice towards minorities, including Indigenous peoples, is the Canadian criminal justice system. Supposedly, the system treats everyone fairly under the law and ensures the safety and rights of all Canadian people are upheld (Barnes, 2006). That is, the Canadian government prosecutes those who commit crimes against others, maintains law and order, and educates people on their rights.
Of course, it would not be in the best interests of the Canadian government to prosecute itself over the criminal acts committed against Indigenous peoples in the residential schools. Nevertheless, the criminal justice system continues to act highly prejudicial way to Indigenous peoples in Canada, who are overrepresented in the criminal system. Against this backdrop, this study will examine the causes of the overrepresentation of Indigenous peoples in the Canadian criminal justice system. The specific causes examined include systemic racism and victimization, denial and loss of cultural beliefs, and lack of funds.
Systemic Racism and Victimization
Admittedly, it is nearly impossible and impractical to eradicate racism in society completely. Progress can be made, and there often is, but the unfortunate reality is that it will persist in some manner. That is, stereotypes about minorities and misinformation about cultures will likely still exist in certain aspects of our society.
This is most unfortunate, especially because racism has cost Indigenous people’s lives and separated families and led to the continued victimization of Indigenous peoples in the criminal justice system. Reasons et al. (2016) noted that race data had only been added recently into the criminal justice databases, which, among other things, they can collect and document “correctional data and other race-based data on Indigenous people.” The fact that the Canadian courts are collecting this information is troubling. This suggests that the Canadian government, which oversees the criminal system, has data on the overrepresentation of Indigenous people. Despite this, it seems the Canadian government seems disinclined to take steps to change this, thereby permitting the continued systemic racism and prejudices (Reasons et al., 2016).
Decisions rendered by the criminal courts are supposed to be done with a consideration of upholding the public trust and interest in their system (Reasons et al., 2016). Furthermore, it is supposed to set an example for the public, which in turn affects how the rest of society views Indigenous peoples. Thus, it seems as though the criminal courts, as permitted by the Canadian government, are implying that it is permissible to discriminate against Indigenous peoples indirectly.
Reasons et al. (2016) dug a little deeper into the court data and found that the criminal justice system more often victimizes indigenous peoples in striking ways. For example, it is far more likely for an Indigenous person to face jail time for traffic incidents (such as speeding) than a non-Indigenous person (Reasons et al., 2016). This shows the extent of victimization that Indigenous people endure because of systemic racism. Furthermore, Nielsen and Robin (2003) observed that Indigenous people only constituted about 3% of the Canadian population at the time of the study. However, Indigenous people also constituted approximately 18% of the federal prison population. Thus, researchers also seem to arrive at a consensus that Indigenous peoples are not inherently more predisposed to a life of crime than non-Indigenous peoples either (Neilson & Robin, 2003; Reasons et al., 2016).
At the core of the problem seems to be the presence of racial profiling, which is a problem in Canada just as much as it is in the United States. Reasons et al. (2016) posit that racial profiling is the primary form of racism committed by Canadian police officers. This contributes to a bias towards Indigenous peoples. While police carding protocols may have been useful to allow police officers to get to know the population, it has rapidly devolved into a tool for discrimination and mistreatment (Reasons et al., 2016). This is because police officers have become brutal and prejudicial to the Indigenous peoples. Carding and racial profiling are not simply innocent police strategies to familiarize themselves with the community; instead, it has become a racist weapon used to accuse minorities of crimes.
Finally, it ought to be mentioned that the actions of prosecutors and judges are also concerning. Reasons et al. (2016) found biases towards Indigenous peoples by prosecutors and judges alike, who are supposed to be respected by Canadians. Reasons et al. (2016) suggested that the main reason for harsher sentencing of Indigenous peoples is ‘ethnic threats,’ whereby judges sentence Indigenous people due to their increased prison population instead of cases. This, unfortunately, indicates that the Indigenous people still face severe punishment due to unfair stereotyping.
Denial of Culture and Beliefs
Colonization denied Indigenous people their basic human rights under the Canadian Charter of Rights and Freedoms when they were subjected to marginalization and discrimination. For those who did attend residential schools, their lone source of joy was commonly their beliefs and culture. Engaging in their cultural practices gave them a small semblance of joy and peace of mind while they gathered together to celebrate, albeit secretively (Cunneen & Tauri, 2019). Nevertheless, the colonizing Canadian government viewed the removal of their culture as a means of punishing them and forcing them to assimilate into ‘Canadians’ (Cunneen & Tauri, 2019). Consequently, spiritual gatherings and cultural celebrations were abolished with the aim of ensuring future generations had no Indigenous culture or beliefs (Cunneen & Tauri, 2019). In other words, a cultural genocide occurred.
These events contributed to the mass incarceration, and criminal proceedings commenced against Indigenous peoples in Canada. As a result, they faced lengthy jail terms, in many instances contributing to their deaths in prisons (Cunneen & Tauri, 2019). This was especially true for Indigenous elders, whose primary purpose was storytelling and conducting the cultural services (Barnes et al., 2006; Cunneen & Tauri, 2019). Also, Cunneen et al. (2019) found that every stage of the criminal justice system has an overrepresentation of the indigenous people, with a high number of female inmates compared to males. This dates back to colonization, when women and girls were separated from their families to control births. That is, residential schools were used to control the culture of the Indigenous people in a way that was tantamount to cultural genocide (Barnes et al., 2006).
Separating children from their families was a way of torturing their parents and the Indigenous community (Barnes et al., 2006). Furthermore, it gave the Canadian government a form of power that they used to enslave men and women, accusing the Indigenous people of aggression and disobedience as they tried to fight back, which was punishable by incarceration (Barnes et al., 2006). The psychological burden has transferred from generation to generation, explaining the continued mistrust of the Canadian government by many Indigenous people. Furthermore, it increases police brutality and profiling, causing arrests leading to the overrepresentation of indigenous people in the Canadian criminal justice system (Barnes et al., 2006).
Lack of Funds
A third main issue afflicting Indigenous peoples is inadequate funds to afford a lawyer to represent them. This means the court appoints lawyers for them, who may not necessarily have the accused’s best interests at heart nor be viewed as a priority case for them. Also, these attorneys are often busy and may be more willing to give more inadequate advice to have their cases dealt with expeditiously (Reasons et al., 2016). Therefore, it is more likely for an Indigenous person to face unfair pre-trial and may even get undeserved jail time for a simple case or for crimes they may not have committed (Reasons et al., 2016).
Additionally, it is more likely for Indigenous peoples to be in custody through the hearing because they cannot afford bail. Therefore, they might have to spend time in custody pre-trial, even if they will be declared innocent (Reasons et al., 2016). Being in custody is challenging for any family because separating parents from their children can be a psychological turmoil. The delay of court dates that often occurs in Canadian courts contributes to this time away, an impact magnified by the fact that Indigenous peoples rely on community and family to get through tough times (Reasons et al., 2016). That is challenging to do when a defendant is in pre-trial custody.
The Canadian government and criminal courts tried to alleviate this by introducing unique considerations for Indigenous people (Cuneen & Turi, 2019). However, due to universalism, these ‘special treatments’ are often disregarded (Cuneen & Turi, 2019). This is due mainly to the negative perceptions of Indigenous peoples and their culture. According to Cunneen & Tauri (2019), many epistemologists of Indigenous culture are not Indigenous people, who inaccurately represent them as chaotic that cause criminal cases. These epistemologists claim that the Indigenous people’s teachings, art, and spirituality are a concern, affecting readers’ perceptions who have not interacted with the Indigenous peoples directly (Cunneen & Turi, 2019). Such accusations cause stereotyping, resulting in racism, as people will not want to interact with them, causing aggression that could result in the police case, and the Indigenous people end up locked up in jail.
Personal Reflection: Recommendations & Thoughts
First and foremost, it is imperative for the Canadian government to recognize the myriad injustices and atrocities committed against Indigenous peoples. A serious commitment to reconciliation is mandatory for any progress to be made, even if it means having some incredibly difficult conversations and exposing some uncomfortable truths about Canada’s history of colonial practices. In some respects, the pathway to these conversations has been opened over recent months by discovering over a thousand graves of Indigenous children at the residential schools. However, just how much actual reconciliation will be made in the weeks and months ahead on this remains to be seen.
Recognizing the importance of Indigenous peoples in Canada and to Canadian society and acknowledging their rights ought to be the purpose of the criminal justice system. Doing so would figure to begin to improve the interaction and trust between the police and Indigenous peoples, therefore decreasing criminal convictions and giving Indigenous people an opportunity to improve their lives. Nielsen & Robyn (2003) stated that rehabilitation of Indigenous people through community services, although challenging to implement, helped improve the interaction between these convicts and the members of the society. Therefore, instead of pushing them to jails, the government should apply restorative justice to address the problem and ensure the mistake does not happen again.
Furthermore, making a concerted effort towards eradicating stereotyping and victimization, such as through education, would likely be immensely beneficial. Therefore, it would be wise if the Canadian government, and the provincial/territorial governments, let the Indigenous people practice their beliefs before others so that they get to witness the beauty of their traditions and culture, which will help to eliminate the stereotyping read in books. Furthermore, these interactions are likely to create improved relationships between the Indigenous people in Canada and the general public so that the number of crimes and aggression decreases, leading to decreased arrests. Also, including Indigenous elders in the Canadian criminal justice system will help the young people to see that they can achieve greatness despite what happened to their forefathers, which will create the spirit of hard work in them, therefore staying away from criminal activities and curb overrepresentation in the Canadian criminal justice system.
Many Indigenous cultural beliefs and practices involving Indigenous leaders and youth revolve around instilling leadership skills that are often grounded in respect (Barnes et al., 2006). It is important for the Canadian government to acknowledge these practices and their importance in Indigenous culture. Non-Indigenous youth are given opportunities to learn socialization and proper behaviour, such as in school. When youth are accused of a crime, community service or mentorship/leadership initiatives are often offered to reduce recidivism rates among youth (Public Safety Canada, 2021). Therefore, it makes sense to offer similar initiatives to Indigenous youth who might encounter challenges with Canadian law. It seems likely that the aforementioned Indigenous teachings would decrease the number of Indigenous youth in jails and restore the relationship between the Canadian government and the Indigenous peoples’ young generation.
In conclusion, Indigenous people in Canada have faced countless political, social, and economic challenges and discrimination due to systemic racism. Extant literature on the relationship between Indigenous peoples and the Canadian criminal justice system indicates that Indigenous people are mistreated and prejudicial. The criminal justice system in itself is structured in such a way that is inherently unfavourable to minority populations, such as through the implementation of carding and racial profiling. Furthermore, it is apparent that there is an inadequacy of representation in the judiciary and legislative counsel, further increasing their victimization. It leaves a strong impression that, even though initial colonization occurred long ago, their effects remain ever-present and traumatizing to the present generations of Indigenous people. It seems that Canada still very much has a long way to go towards treating Indigenous people fairly in a broader sense. Education of the traditions and culture of Indigenous people in Canada is a must. Through increased knowledge and interaction with Indigenous people, it will likely go a long way towards reconciliation and ensuring that they are treated fairly in all aspects of Canadian society – including the criminal justice system.
Barnes, R., Josefowitz, N., & Cole, E. (2006). Residential schools: Impact on Aboriginal students’ academic and cognitive development. Canadian Journal of School Psychology, 21(1-2), 18-32.
Cesaroni, C., Grol, C., & Fredericks, K. (2019). Overrepresentation of indigenous youth in Canada’s criminal justice system: Perspectives of indigenous young people. Australian & New Zealand Journal of Criminology, 52(1), 111-128.
Cunneen, C., & Tauri, J. M. (2019). Indigenous peoples, criminology, and criminal justice. Annual Review of Criminology, 2, 359-381.
Hall, M. M., Wehi, P. M., Whaanga, H., Walker, E. T., Koia, J. H., & Wallace, K. J. (2021). Promoting social and environmental justice to support Indigenous partnerships in urban ecosystem restoration. Restoration Ecology, 29(1), e13305.
Nielsen, M. O., & Robyn, L. (2003). Colonialism and criminal justice for Indigenous peoples in Australia, Canada, New Zealand and the United States of America.
Public Safety Canada. (2021). YMCA plusone mentoring. Government of Canada. https://www.publicsafety.gc.ca/cnt/cntrng-crm/crm-prvntn/nvntr/dtls-en.aspx?i=10180
Reasons, C. E., Hassan, S., Bige, M., Paras, C., & Arora, S. (2016). Race and criminal justice in Canada. International Journal of Criminal Justice Sciences.
Silverman, R. A., & Nielsen, M. (Eds.). (1994). Aboriginal peoples and Canadian criminal justice. Harcourt Brace, Canada.