Selective Criminalization of Aboriginals in Canada


By and large, the Canadian Criminal justice system is anchored on the legal doctrine. To be precise, the country’s democratic ideals are grounded on the rule of law that each individual is liable to the customary law of the Canadian territory (Aboriginal Justice Implementation Commission 10).

Since the patriation of the country’s constitution in the early 1980s, the legal doctrine is considered to mean two things: first, the law is preeminent over state officials and private persons, and subsequently preclusive of the impact of self-assertive force; second, the legal doctrine requires the formation and sustenance of a genuine order of affirmative laws, which maintains and typifies the more broad rule of normative order. In other words, law and order are basic components of edified life (Aboriginal Justice Implementation Commission 12).

The country’s criminal justice system has three fundamental constituents, namely: enforcement, prosecution, and punishment. Enforcement represents the law enforcing officers. Prosecution implies those institutions and persons that translate and apply the laws. Lastly, punishment is the prospective consequences of infringing the laws (Ball 12). But, before we explore the three components of the criminal justice system, it is important to take a look at the significance of this study.

One of the main questions that have always lingered in the mind of legal and political experts is whether the current justice system is working for aboriginals. Many would say that it is not working for them based partly on their philosophical and cultural difference between natives and the rest of the population. There is the truth that aboriginals have carried on for centuries as an exceptional cultural unit. They have never allowed their primary right to administer themselves as per their traditions and beliefs be taken away. This has persisted regardless of the way that, all through history, progressive central governments have attempted to meddle with, or reduce that privilege and to supplant it with their ideas.

Moreover, aboriginal individuals don’t hold fast to a solitary life theory, religious conviction or good code. Contrary to popular belief, an aboriginal is not just an aboriginal. A large number of the Aboriginal ways vary from conventional society (Royal Commission on Aboriginal Peoples 77). The significance of the word justice is comprehended differently by the aboriginals. The aboriginals consider justice to be the reclamation of peace and harmony in the society, as well as individual reconciliation. The accentuation is on discipline for the anomalous conduct as a way of making individuals toe the line (Royal Commission on Aboriginal Peoples 79).

Generally, the aboriginals originate from reserve communities where the rate of suicide is two times higher than the mainstream society, violent deaths are three times higher than whatever remains of Canada, nearly half of the population does to attend high school, average income is half of other Canadians, and where there is a high number of gender violence (Royal Commission on Aboriginal Peoples 77). Statistically, the number of incarcerated aboriginals has increased from 15349 to 17564, whereas the number of non-aboriginal individuals has decreased substantially from 65676 to 60654 since 2001. Given the above statistics, the victimization of the Aboriginals is based on the figurative aspect of controlling crime and perceptions created through the media (Mann 17).

Stereotypical perception of Aboriginals also exists in other aspects of social life, for instance, the majority of Canadians view welfare programs as programs targeting the natives. This is because the media has always misrepresented the Aboriginals as the sole beneficiaries of these programs. Consequently, any effort by the government to increase budgetary allocation for the social welfare programs has always been met with stiff opposition from the majority and the elite groups. As a result, there has always been a bad blood between the ethnic minorities and the white majority (Mann 19).

Why aboriginals are over-represented in the criminal justice system

At the moment, the criminalization of Aboriginals is the focus of correctional studies in Canada (Mann 21). In the past five years, two rulings by the highest court in the land have recognized the plight of the aboriginals and the presence of pervasive prejudice against them. The Supreme Court urged the aboriginals to challenge future court decisions when they are not fully satisfied because of the general prejudice against them. In addition, the number of aboriginals being imprisoned is increasing day by day. In fact, the proportion of aboriginal offenders is higher than the rest of the Canadian population taking into account their relative. Even though the aboriginals only constitute three percent of the Canada’s population, they account for twelve percent of the total convicts (Mann 22).

A number of researchers have attempted to explain the reasons why aboriginals are over-represented in the criminal justice system. According to LaPrairie, there are three probable reasons for aboriginal overrepresentation : first, differential criminal justice system dispensation, which is highly attributed to racial prejudice; second, the increasing number of aboriginal offenders ; last but not least, the type of offences committed by aboriginals have a high probability of leading to a prison sentence (12). She emphasizes that overrepresentation of the aboriginals cannot be pegged on racial prejudice alone (13).

A huge number of authors have pointed to the fact that poor standards of living, poverty, and wide-ranging cultural and economic dispossession are the main factors that have led to the overrepresentation of aboriginals in the criminal justice system. Rugge explains that most Aboriginals, just like individuals born in the informal settlement, are exposed to so many risks (33). These risks factors have played a significant role in their overrepresentation in the criminal justice system. The risk factors include poverty, low socioeconomic status, peer pressure, drug abuse, and low self-esteem.

As mentioned above, the country’s criminal justice system has three fundamental constituents, namely: enforcement (the police), prosecution (courts) and punishment (correctional facilities). Numerous studies have reported the existence of prejudice against them at all the three levels of the criminal justice system. For example, Achtenberg admits that differential treatments of natives and non-natives may take place at different levels of the criminal justice system (15). For this reason, it is important to take a look at the three constituents of the criminal justice system in order to understand their role in the criminalization of the aboriginal people.

Enforcement (police contact and detention)

There are numerous reports on the differential treatment of aboriginals by law enforcement officers. For instance, Cawsey conducted a survey to establish the impact of the criminal justice system on Indian and Metis people in Alberta. More than 70 percent of the respondents felt that the law enforcing officers were treating the natives differently (Cawsey 99). On the other hand, Aboriginal Justice Implementation Commission revealed that the native communities are over-policed, hence higher charge rate on reserves (14). Possibly seconding the idea that native communities are over-policed, Ball found that law enforcing officers in Alberta held a negative attitude towards the native people than the rest of the Canadian population.

Given the significance of optional choices in police work, the questions emerge whether the adverse generalization deciphers into the unfair treatment of native communities. Other studies have also shown that aboriginals are more frequently charged with minor offenses than the rest of the population (Achtenberg 22). An investigation of detention pattern in Winnipeg shows that aboriginals are unduly arrested by the law enforcement officers. However, the differential treatment of natives and non-natives is very minimal in the Western cities. Evaluation of these studies is not easy owing to the use of different variables, for instance, detention or charge rate. Hence, it remains indistinct whether the discretionary decisions of law enforcement officers are correlated to the disparate presence of aboriginals.

Prosecution (Courts)

The affinity of aboriginal forced to plea-bargain is frequently very high and absence of genuine representation is often viewed as the key factor leading to aboriginal overrepresentation in the criminal justice system. However, there is limited information to back this claim. Nonetheless, recent studies have shown a considerable difference in the number of plea bargains for natives and non-natives. The absence of sufficient lawful representation for Aboriginal lawbreakers has been raised in a number of reports dating back to the early 1990s, for instance, the Manitoba Aboriginal Inquiry Report of 1991.

The general reproach of legal assistance in these reports includes lack of public awareness on the accessibility of lawful representation, popular belief, and cultural differences between the legal representative and the client. On the other hand, some studies suggest that native communities do get sufficient legal assistance. For example, Cawsey noticed that funded legal representatives were readily available for those who were qualified for legal assistance. However, experts argue that the terms and conditions set by the government are the obstacle.

Punishment (Corrections)

It has been contended that the differential effect of the criminal justice system on aboriginals might be more evident at this stage. In an extensively researched paper, Rugge concluded that one of the main factors that have led to the disproportionate representation of the aboriginals in correctional facilities is that many of them are being awarded unreasonable terms (58). She adds that many aboriginals are being imprisoned compared to non-aboriginals.

However, Cawsey claims that the harsh sentencing of aboriginal offenders had nothing to do with race (102). She adds that there is no tangible proof to link harsher sentences to ethnicity. As a matter of fact, the differential sentencing is largely attributed to the severity of offenses and criminal history. She claims that the government has always been lenient with most aboriginal offenders, especially those accused of first- or second-degree murder (Cawsey 105). Royal Commission on Aboriginal Peoples also established no critical contrasts between normal sentence lengths awarded to aboriginals and the rest of the Canadian population (5).

Intervention programs

The state and the judiciary have taken a number of steps to tackle the problem of over-representation of the aboriginals in the criminal justice system, for instance, the amendment of the penal code. One of the amendments includes the insertion of section 718.2, which requires the bench to search for other alternatives to jail sentence that are rational for all lawbreakers. This section mainly targets ethnic minorities (Mann 34).

The government has also funded a number of programs aimed at tackling the overrepresentation and related issues. Examples of such programs include the provision of free legal assistance, public awareness, hiring aboriginals to serve in the criminal justice system and the appointment of the Gladue Caseworkers. The Gladue Caseworkers provide the judges with crucial information on the life conditions of the guilty party and conceivable proposals for sentences that can address the issues that have brought the person under the watchful eye of the court (Mann 36).


The over-representation of the aboriginals in the Canadian criminal justice system has been referred by the highest court in the country as a major crisis. This has always been regarded as the problem of the reservation areas. On the contrary, major towns such as Ontario have the highest number of over-presentation. While the government and courts have attempted to reverse the situation, the number of aboriginals in the criminal justice system is still higher than that of non-aboriginals.

This implies that the war is yet to be won. For this war to be won, it is important to understand its main cause. Numerous authors attribute it to poor standards of living, poverty, and wide-ranging cultural and economic dispossession.

Even though this problem seems obvious, many researchers have found it very hard to prove it statistically. This is because the affinity of aboriginal forced to plea-bargain is frequently very high, especially when denied bail. The situation is made even worse by the absence of sufficient lawful representation for Aboriginal lawbreakers. While a number of intervention programs have the potential of reversing the situation, many of them are new and may take considerably long time before their impact is felt.

Works Cited

Aboriginal Justice Implementation Commission. Report of the Aboriginal Justice Inquiry of Manitoba, Winnipeg: Government of Manitoba, 1999. Print.

Achtenberg, Melanie. “Understanding restorative justice practice within the Aboriginal context.” Forum on Corrections Research, 12.1 (2000): 10-45. Print.

Ball, Jessica. “Policies and Practice Reforms to Promote Positive Transitions to Fatherhood among Aboriginal Young Men.” Horizons, 10.1 (2008): 1-20. Print.

Cawsey, Alberta. Justice on trial: Task force on the criminal justice system and its impact on the Indian and Metis people in Alberta, Edmonton: Province of Alberta, 1991. Print.

Fujioka, Yuki. “Television portrayals and African-American stereotypes: Examination of television effects when direct contact is lacking.” Journalism and Mass Communication Quarterly, 76 (1999): 52–75. Print.

Hogg, Michael and Deborah Terry. Social identity and self-categorization processes in organizational contexts. Academy of Management Review, 25. 1(2000): 121–140.Print.

LaPraine, Carol. Examining Aboriginal corrections in Canada, Ottawa, Ontario: Ministry of the Solicitor General, 1996. Print.

Mann, Michelle. Incarceration Aboriginal offenders: Potential Impacts of the Tackling Violence Crime Act and the Corrections Review Panel Recommendations, Toronto, Canada: Thompson Educational Publishing, Inc., 2013. Print.

Royal Commission on Aboriginal Peoples. Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada, Ottawa: Supply and Services, 1996. Print.

Rugge, Tanya. Risk Assessment of Male Aboriginal Offenders: A 2006 Perspective, Ottawa: Public Safety and Emergency Preparedness Canada, 2006. Print.

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