The Overrepresentation Of Indigenous Youth Within The Justice System

The relationship between Indigenous communities and the Canadian government has been plagued with turmoil and conflict. The Canadian justice system is no outlier in this occurrence. Indigenous communities are vastly overrepresented within the justice system as a whole, specifically within incarceration. In 2018 Indigenous peoples accounted for 30% of the population in provincial custody and 29% within federal custody. This number is especially relevant in consideration of the fact that Indigenous adults make up only 4% of the Canadian adult population.


Indigenous youth are especially affected by this phenomenon as Indigenous youth make up 43% of incarcerated youth population while only accounting for 8% of the overall Canadian youth population. This is a staggering percentage that is directly linked to overrepresentation within the justice system as a whole. Many factors impact these numbers; a significant influencer is the role of policy within the justice system. Youth and their presence within the justice system have long been debated and challenged to account for youth criminality. Historically, the Canadian government has made attempts to control and manage youth crime through a series of policies that directly target youth. The Youth Criminal Justice Act (YCJA) is the third and current policy that has been enacted to address youth crime. Its predecessors, The Juvenile Delinquents Act (JDA), and The Young Offenders Act (YOA), directly influenced and impacted the current policy that governs youth criminality. The YCJA was enacted with the goal of “Preventing crime by addressing the circumstances underlying a young person’s offending behaviour, rehabilitate young persons who commit offences and reintegrate them back into society, and ensure that a young person is subject to meaningful consequences for his or her offences, in order to promote the long- term protection of the public.”


The policy explicitly mandates that the justice system consider alternative measures such as diversion and contain prison sentences for violent and serious offences. While adequate to address youth criminality in general, these goals do not account for the overrepresentation of Indigenous youth. In fact, since its inception, the presence of Indigenous youth within incarceration has remained the same or increased while the population of white youth has drastically decreased. While the YCJA has goals of addressing youth within the justice system, the policy directly harms Indigenous youth by continuing historically racist ideologies and overrepresentation within the justice system.


The YCJA declares a set of principles that outline how young offenders should move through the justice system. Some of these principles directly pertain to the specific treatment and consideration of “gender, ethnic, cultural and linguistic differences and respond to the needs of Aboriginal young persons and of young persons with special requirements.” This principle was enacted to address the inequities found within the justice system and account for Indigenous youth’s marginalization. However, while the YCJA has achieved its goals of reducing youth incarceration, the number of Indigenous youth incarceration has decreased at a vastly slower rate. While offenders of more serious crimes have been given custody sentencing, few youths have been incarcerated for less serious crimes.


This is not relevant for Indigenous youth, however. In a study conducted by Corrado, Raymond and Kuehn, the risk factors such as family history, education, delinquency, and substance use, were compared between Indigenous and white youth. The study concluded that these factors did not solely account for the disproportionate representation within the justice system. Thus, these risk factors used by the YCJA to determine sentencing are harming the perspective placed on Indigenous youth. The predominantly white-middle class nature of the justice system isolates Indigeneity as a deviation from the ‘norm’, thus marginalizing Indigenous youth further. A significant aspect of the YCJA is mandated principles that indicate diversionary methods rather than custody. However, this principle is challenged since while the YCJA encouraged police and prosecutors to use diversionary programs, it is also clear that each case is left to the discretion of the police and prosecutors. Colonialism has created a series of norms and ideals that govern marginalized communities, especially in Canada. The ambiguous language of the provisions allows for a greater risk of discrimination. Further, Indigenous youth are more likely to be labelled as high risk for reoffending due to the assumption of limited community-based support. This issue of risk-based discrimination is a product of colonialism and bias within the justice system itself.


A significant aspect of the YCJA is community-based diversion methods to move youth away from custody and instead focus on rehabilitation and reintegration. This is a substantial challenge when coupled with the overrepresentation of Indigenous communities. The presence of ulterior methods allows judges and prosecutors to justify diversionary methods. A new method within the Canadian context is sentencing circles that allow young Indigenous offenders to interact with the victim(s) of their offence, the community surrounding both offender and victim, and a collection of Elders from the community. These sentencing circles provide both offenders and victims with a sense of community rather than the isolation provided by incarceration. Sentencing circles also allow communities to navigate the punitive measures necessary for the crime. This provides both the individual and the community with a significant opportunity to explore alternative measures of correction that do not inherently harm to the offender and, rather, allow for significant reintegration back into the community.


Using this method as a formal diversionary tactic will allow Indigenous youth and Elders to gain a deeper perspective of their own communities and challenge the need for more traditional punitive methods. This will also ease the financial and special burden that over-incarceration places on the justice system. A policy adopted by the Australian federal government places emphasis on increasing self-governance and decision-making within Indigenous communities. In doing so, these communities will be given the opportunity to govern their own communities and thus, youth offenders will have limited to no contact with the current formal justice system. This will also allow the opportunity to hold offenders accountable while limiting historical colonial discrimination and assimilation. This methodology will also allow for increased consultation with Indigenous governments and organizations with limited structural or fiscal change. Thus, the traditional formal means of justice can be challenged by those whom it affects the most.



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