Overrepresentation of Indigenous People in the Criminal Justice System


Regarding criminal justice, Indigenous Peoples were overrepresented among those imprisoned for criminal charges. There are two ways to demonstrate this: by looking at the percentage of Indigenous people detained in the overall prison population and comparing the levels of Indigenous persons incarcerated and the variations in those levels over time (Daniel, 2020). While the total number of adults held in jails grew by less than one percent between March 2009 and March 2018, the number of indigenous detainees rose by 42.8%, according to the Correctional Services Detective (Monchalin, 2016). Only 4.3% of Canadians were indigenous as of March 31, 2018, but they accounted for 28% of all state inmates.

The plight of indigenous women continues to worsen. There was a 60% increase in the number of Native American women sentenced to prison from March 2009 to March 2018. (McNally, 2017). The percentage of Canadian women in jail with a lineage traceable to their indigenous heritage reached 40% by the end of the study period. It’s sad to see these numbers. There were 61 people in attendance (Fast, 2019). The Canadian Department of Justice (2018c) analyzed data on adult child custody based on census data from the prior three years.

Reasons for Overrepresentation

Native Americans are often depicted as either abusers or victims. In the criminal justice system, indigenous people are subjected to systematic discrimination. Both of these factors have been linked for a considerable amount of time now (Daniel, 2020). The RCAP’s three functional criteria, colonialism, socioeconomic decline, and cultural conflict, are validated by government and academic research (Daniel, 2020).


The RCAP best defines the Native American criminal justice system’s over-representation. A hallmark of colonial knowledge of Indigenous peoples is the attempt to acquire control of Indigenous territories and natural resources (Cesaroni, 2019). ‘Colonialism’ A range of colonial-era control measures, including violence, have been used in the evacuation of detention centers and other designated communities. Indian law was and is a racist piece of legislation (Cesaroni, 2019). A ban on ceremonial activities such as potlatch in British Columbia and Sundance on the plain. This led to automatic accreditation loss of Indian status for men who receive a certain level of education (Monchalin, 2016). Some of the previous amendments were an attempt to prevent indigenous groups or communities from having their interests represented by lawyers before the United States government.

In 1996, the Report of the Royal Commission on Aboriginal Peoples was released. It showed that the main features of over-representation were colonial views under Canadian criminal laws, policies and procedures that had a negative impact on Indigenous peoples (Canada, 2020). As a result of Canadian colonial history, Indigenous peoples have been confronted with conflicting policies and procedures that have led to collective and individual abuse that has had a detrimental effect on many public health services (McNally, 2017). Their experiences, often associated with substandard housing and limited education and job prospects, have been cited in the literature as providing Indigenous people to connect with the criminal justice system more often and longer than non-Indigenous people.

These difficulties are not the only ones that affect indigenous women and their children. There have been failed attempts to reconsider various sections of the legislation, such as restrictions on the status of Indians. According to RCAP, another form of colonialism is the government’s unwillingness to adhere to conditions of agreements signed by Indigenous peoples. and coalition governments (Fast, 2019). Several unresolved direct claims against the coalition government include property claims and other promised benefits.

It’s a big worry for First Nations, governments, and regional organizations. Indigenous people’s decline in the coalition government has been widely acknowledged due to this. Colonization has a direct impact on the Aboriginal people’s perceptions and history (Fast, 2019). A historical link marked by “certain different historical and political processes that have made Aboriginal people poorer than poverty” is known as colonialism. This link between colonialism and extremism was made clear in an article written in 1988 by Michael Jackson of the Canadian Bar Association (McNally, 2017).

Some writers believe that colonialism and postcolonialism are two sides of the same coin. Jackson’s study described colonial interactions in which Indigenous people were split by cultural differences, land acquisition, and social and economic inequity, which means that Indigenous peoples’ high rate of involvement in the criminal justice system can be attributed to colonialism (Canada, 2020). This could be an intriguing tidbit of knowledge on Canada’s long history of residential schools (Daniel, 2020). The Truth and Reconciliation Commission (TRC) asserts that religiously sponsored schools supported by the federal government were established across Canada to minimize parental involvement in Indigenous children’s spiritual, cultural, and intellectual development.

Socioeconomic Marginalization

The long-term effects of various forms of colonization on Indigenous peoples are apparent. As a direct result of historical and current colonialism, Native Americans face racial and economic discrimination in the legal system (Cesaroni, 2019). According to the most superficial surveys, Canada’s Indigenous peoples and their whole communities face persistent prejudice (Cesaroni, 2019). An average non-Indigenous Canadian earns $46,449, while an average indigenous person made $36,748 in 2015 (McNally, 2017). The employment rate of Indigenous people was significantly lower than that of non-Indigenous people during the same period, at 61.8%, compared to 81.6% for the entire Indigenous population (Daniel, 2020). Employment in remote and isolated Indigenous communities is significantly lower than the total employment of Indigenous people, regardless of where they live.

Additionally, indigenous people, particularly those living in remote and isolated areas, confront many other undesirable social and living conditions. Several authors, agencies, and investigations have revealed low indigenous populations’ housing, education, and health care rates (McNally, 2017). As of 2016, 29% of non-Aboriginal Canadians aged 25 to 64 held a university degree, compared to just 11% of Aborigines, according to Statistics Canada (Monchalin, 2016). 19% of Indigenous communities required major improvements in 2016, compared to just 6% of non-Indigenous towns.

Systemic Discrimination

Indigenous people comprise a sizable portion of the criminal justice system’s clientele. The Supreme Court of Appeal of Canada made this statement in its ruling in R. V. Gladue (Daniel, 2020). The overcrowding of indigenous peoples in the Canadian criminal justice system is simply the tip of the iceberg regarding the systematic exclusion of indigenous peoples. Native American over-representation penetrates the entire system (McNally, 2017). As stated by the Supreme Court of Canada, “there is evidence that widespread discrimination translates into systemic discrimination in the criminal justice system” in Canada’s criminal justice system, as outlined in the book R. vs. Williams (Monchalin, 2016). 14 Police, courts, and corrections suffer formal discrimination daily. According to the Aboriginal Justice Inquiry in Manitoba, ‘systematic discrimination’ occurs when a norm or condition, or the application of “common practice,” has an unintended harmful impact on a target group.


several commissions and probes addressed the police custody of indigenous peoples and communities. According to these experts, police work in indigenous communities needs improvement. According to Hylton’s study, a collaboration between the police and the community is what the RCMP means by community policing (McNally, 2017). Other institutions have also championed the community-based paradigm. Indigenous communities desiring to retain foreign police services should promote “community policing,” according to the Law Reform Commission’s recommendations in 1991. While community policing looks to be a successful model for Indigenous communities, the organizations differ in the ways they use to police themselves (Fast, 2019). There are places where locals want the RCMP to continue providing law enforcement and where residents want to conduct their law enforcement. “definitions suited to the particular stage of public administration and administration” must be used in policing (Monchalin, 2016). Police involvement should instead be concentrated on teaching and safeguarding the people, according to all inquiries into the issue. Systematic racism and discrimination have led to the criminalization of many Indigenous people, resulting in their incarceration, prosecution, and punishment (McNally, 2017). Increasing the number of community officers is one way to deal with the problem of excessive and insufficient policing in Indigenous communities.


Indigenous offenders are more likely than non-indigenous offenders to receive life sentences. People in local and district correctional services (adults and kids) are particularly prone to this. Of those charged with crimes against humanity between 2016 and 2017, indigenous people accounted for 30 percent of those detained (Monchalin, 2016). According to data from the Department of Justice Canada 2018a, up to 55% of Indigenous youth were in safe custody, and 60% were in open control (Cesaroni, 2019). Compared to non-Indigenous offenders, Indigenous suspects face a higher rate of bail rejection, which means they are held in prison for longer. Top Indigenous defendants have been arrested more frequently in recent years (McNally, 2017). The compensation obtained by Native adult detainees in 2016-2017 was 29% of the total. Adolescents from indigenous communities account for 48% of all those held before trial Department of Justice Canada, 2018a (Fast, 2019). However, the contrasts can be even more striking in Nunavut and other northern regions.

Culture Clash

Cultural antagonism is the fourth reason for extremism. According to Rodin’s perspective, Aboriginal and Western notions of justice are incomparably different. When Indigenous peoples are compelled into a system that does not recognize their values, it follows that over-representation occurs (McNally, 2017). Indigenous peoples in many countries see the world in a different light. In light of its cultural and societal background, this is a challenging topic (there are significant differences between Indigenous cultures throughout Canada).

Misbehavior can be tackled in a variety of ways. According to Indigenous worldviews, rehabilitation, social rehabilitation, and treatment are more important than the current Euro-Canadian legal system. This may cause information overload (Daniel, 2020). Programs like special courts and other initiatives have helped transform Canada’s attitude, which used to be heavily focused on vengeance and punishment. The subject of worldview divergence can be approached positively and negatively (Monchalin, 2016). Another way to learn about Native American culture is by looking at the simple things many Native people do uniquely.

Strategies to Solve This Issue

Sentencing Policy: Section 718.2(e) and Gladue

In June 1995, Parliament passed a law called C-41, which revised the Criminal Code’s punishments section. When the Criminal Code Section 718.2 (e) went into force in 1996, it aimed to reduce the high percentage of imprisonment for Indigenous people (Cesaroni, 2019). Section 718.2 of the Code of Criminal Procedure mandates that all available sanctions, including indigenous circumstances, be considered (Daniel, 2020). As the standard of sentence increased, it became clear to the authorities that Indigenous peoples were also being imprisoned. For example, judges had a specific policy of looking at the principles of restraint and criticism, incompetence, and rehabilitation before the adjustments; as Rudin reveals, Stipulations in Pt. was not according to the norms (Monchalin, 2016).

The Establishment of Gladue Courts

The Gladue Tribunals, courts for appeals and solutions, have a diversion option. Gladue, the case before it, saw the Supreme Court of Canada find that sentencing is essential to the criminal justice process. As a condition of starting the trial in Gladue, the accused must confess their crimes (Monchalin, 2016). There will be an actual hearing in court if there is an acquittal. Canada has seen an increase in Gladue courts during the last few years. The first one was held at Toronto’s Old City Hall in 2001. In the Canadian provinces of Ontario and British Columbia, Gladue courts are particularly prevalent (McNally, 2017). There should be caution when designating an institution as a “Court of Justice.” Native American rights cases are frequently brought to the Gladue Court, which is generally known as such. Certain qualities that align with the clause’s stated goal distinguish the Court of Appeals of Truth. If we were to sum up these elements or objectives, we’d say: To limit Indigenous imprisonment, use the Criminal Code section 718.2 (e).

Bail and Remand Issues

Concerns about pre-trial detention and bail postponement should be addressed. In a 2003 paper, Ontario’s Court of Justice Kazan wrote that people who are granted bail and imprisoned before their trial are more likely to end up behind bars (Fast, 2019). Indigenous defendants are more likely to be sentenced to prison since there aren’t enough pre-trial community services. In sentencing, judges may decide that the perpetrator deserves prison time even when unaware of the serious risk posed by pre-trial confinement.


In Canada, the criminal justice system is still dealing with several challenges. Indigenous peoples’ underrepresentation in the system is dangerously high and is only likely to worsen. Discrimination against indigenous people is still widespread. Progress has been achieved, but much work still needs to be done. The introduction of other penalties in the Criminal Code and the recognition of the role of unequal living conditions in Indigenous harassment and abuse were significant developments in state policy. Even more important was the Supreme Court of Canada’s increased recognition of the identical conditions in Gladue and Ipeelee. Success in Toronto and elsewhere shows that Gladue sentence reforms are crucial to reducing the congestion and the overpopulation of Indigenous peoples in Canada.

Several programs supported by Canada’s Indigenous justice program have been effective, and the general success of the Canadian Government’s Indigenous justice approach is also noteworthy. According to Department of Justice officials, Indigenous communities must be included in formulating and implementing the strategy. Finally, there is concern about how the justice system is seen. Separation of social processes from common institutions, police, courts, and corrections is essential as long as the system remains in place. Simple structures have important obligations that they must work hard to achieve. A key component of such an effort should be close cooperation with indigenous communities.


Canada, G. o. (2020). Truth and Reconciliation Commission of Canada.

Cesaroni, C. G. (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.

Daniel, R. (2020). Since you asked: what data exists about Native American people in the criminal justice system? Prison Policy Initiative.

Fast, E. &.-V. (2019). Historical trauma, race-based trauma, and resilience of indigenous peoples: A literature review. First Peoples Child & Family Review:. An Interdisciplinary Journal Honoring the Voices, Perspectives, and Knowledges of First Peoples through Research, Critical Analyses, Stories, Standpoints and Media Reviews,, 14(1), 166-181.

McNally, M. &. (2017). First Nations, Inuit and Métis health: considerations for Canadian health leaders in the wake of the Truth and Reconciliation Commission of Canada report. In Healthcare management forum, 30(2), 117-122.

Monchalin, L. (2016). The colonial problem: An Indigenous perspective on crime and injustice in Canada. Toronto: University of Toronto Press.

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"Overrepresentation of Indigenous People in the Criminal Justice System." LawBirdie, 6 June 2023, lawbirdie.com/overrepresentation-of-indigenous-people-in-the-criminal-justice-system/.


LawBirdie. (2023) 'Overrepresentation of Indigenous People in the Criminal Justice System'. 6 June.


LawBirdie. 2023. "Overrepresentation of Indigenous People in the Criminal Justice System." June 6, 2023. https://lawbirdie.com/overrepresentation-of-indigenous-people-in-the-criminal-justice-system/.

1. LawBirdie. "Overrepresentation of Indigenous People in the Criminal Justice System." June 6, 2023. https://lawbirdie.com/overrepresentation-of-indigenous-people-in-the-criminal-justice-system/.


LawBirdie. "Overrepresentation of Indigenous People in the Criminal Justice System." June 6, 2023. https://lawbirdie.com/overrepresentation-of-indigenous-people-in-the-criminal-justice-system/.