Law, Ideology, and the Overincarceration of Indigenous Offenders in Canada

• In Event: Examining Legal Dynamics in the Criminal Legal System

Abstract

Indigenous overrepresentation in the Canadian criminal justice system is glaring. Indigenous adults who make up less than 5% of the adult population, account for 31% of inmates in provincial/territorial jails and 29% in federal custody (Statistics Canada, 2020).

Efforts to address this issue have spanned three decades. In 1996, Bill C-41 was enacted to reduce custody rates for Indigenous offenders. It expanded judges' sanction options and reformed judicial procedures under section 718.2(e) of the Criminal Code, with a focus on restorative sentencing and combating over-incarceration. This section guides judges to consider the circumstances, heritage, and connections of Indigenous offenders when determining sentencing procedures and sanctions. Three years later, in R. v. Gladue (1999), the Supreme Court of Canada addressed this concern. The Court recognized systemic discrimination and overrepresentation of Indigenous people in prisons, extending section 718.2(e) to guide judges (R. v. Gladue, 1999). It calls on judges to examine systemic factors contributing to an offender's presence in court and consider alternative sanctions for Indigenous offenders.

In essence, Gladue mandates judges to apply section 718.2(e) to all Indigenous offenders across Canada, unless the offender waives Gladue factors. It provides a framework to address and reduce Indigenous overrepresentation. Despite developments, Indigenous overrepresentation in Canadian prisons persists and has worsened over the past two decades. In 2001, Indigenous persons accounted for about 18% of federal inmates, compared to nearly 30% today. Since 2010, the Indigenous inmate population has risen by over 40%, while the non-Indigenous inmate population has fallen by almost 14% (OCI, 2020). Meanwhile, overall crime rates in Canada have generally declined since the early 1990s (Moreau, 2022). These trends indicate an Indigenization of the correctional system, as noted by the Correctional Investigator (OCI, 2020).

The following paper explores the persisting growth of incarcerated Indigenous individuals in Canada, despite amendments to sentencing guidelines and case law. It seeks to answer the primary question of why this issue endures. The existing literature identifies a range of interconnected factors that contribute to this persistence, including the seriousness of offenses, insufficient resources during the sentencing process, judicial biases and stereotypes, as well as the enduring impact of colonialism.

This paper proposes a different angle of investigation. Existing explanations for the problem of Indigenous overrepresentation in incarceration often overlook the role of sentencing judges' decision-making behavior in contributing to this issue. This omission is particularly significant, given the Supreme Court’s decision in Gladue. Judges play a pivotal role in sentencing determinations, having the sole authority to decide how offenders are sanctioned. Gladue empowers them with the discretion to consider the unique experiences of Indigenous individuals that may have led to their offenses and to base sentencing decisions on this understanding. The persistent increase in incarcerated Indigenous individuals suggests that judges may not consistently apply these principles.

Therefore, this study aims to investigate whether and the extent to which judges’ decision-making behaviour is related to the likelihood of carceral sentencing for Indigenous offenders. To do so, it applies theories of judicial behaviour prevalent within the American judicial politics literature. Relying on a novel dataset of all decisions involving Indigenous offenders before sentencing courts across Canada since the Gladue decision in 1999, preliminary results demonstrate the relevance of case-level stimuli as well as attitudinal factors in such decisions, although to a lesser extent. First, aggravating and mitigating factors, namely offense seriousness, are associated with the likelihood of receiving a carceral sentence. That is, the more serious the offense, the less likely that a sentencing judge will administer non-carceral sanctions and consider sentences other than incarceration. Second, ideologically conservative sentencing judges are more likely to deem offenses to be serious in nature and thus less likely to administer non-carceral sanctions and consider sentences other than incarceration.

Altogether, these results suggest that law reforms placing significant emphasis on the role of sentencing judges to scale down Indigenous over-incarceration must account for how judges might be constrained by the nature of the offense and their subsequent ability to administer alternative sentences. Nevertheless, reforms that leave much to the discretion of sentencing judges might also cause them to turn to their personal ideological or policy preference to determine if an Indigenous offender should receive a non-carceral sentence, thus leading to uneven results across courts.

Author

• Daniel Mosannef, Western University