Disparities in decision and sentencing outcomes between Indigenous accused and White accused in adult criminal court, 2016/2017 to 2020/2021

From 2016/2017 to 2020/2021, 23% of accused persons in adult criminal court cases were Indigenous (First Nations people, Métis and Inuit), despite accounting for 4% of the adult population in Canada. Indigenous people are overrepresented at all stages of the Canadian criminal justice system, both as victims and as accused.

The Juristat article "Disparities in decision and sentencing outcomes between Indigenous accused and White accused in adult criminal court, 2016/2017 to 2020/2021," released today, examines the extent to which adult criminal court outcomes differ between Indigenous people and White people accused of criminal offences in Canada. While the factors associated with overrepresentation are multifaceted and complex, this study focuses on differences in crime severity. Results are broken down by key characteristics that may be associated with different outcomes, such as gender, age, region, type of offence and criminal history.

Indigenous people are overrepresented as accused persons in adult criminal court

Indigenous people represented 23% of all accused persons in adult criminal court from 2016/2017 to 2020/2021, which is well above the proportion of the adult population who are Indigenous (4%). In contrast, White people accounted for 59% of accused persons in adult criminal court and make up about 75% of the adult population.

In total 3 in 10 Indigenous accused (30%) were women, compared with 21% of White accused. In addition, the proportion of persons aged 18 to 34 years was higher among Indigenous accused (62%) compared with White accused (50%).

Indigenous accused had more prior criminal convictions than White accused. Nearly three-quarters (72%) of Indigenous accused in adult criminal court had a prior conviction for a criminal offence, compared with 48% of White accused. Additionally, almost half (48%) of Indigenous accused had five or more prior convictions, compared with 25% of White accused. Notably, Indigenous accused (27%) were more frequently before the courts than White accused (17%) for cases in which the most serious charge was for an administration of justice offence.

Administration of justice charges can include, but are not limited to, failure to appear in court, breach of probation, failure to comply with a court order, and being unlawfully at large. Previous research shows that most adult criminal court cases involving a charge for an administration of justice offence lead to a guilty verdict.

Colonialism, displacement, socio-economic and cultural marginalization, and systemic discrimination are a few of the factors that are frequently mentioned in public discourse and research as possible explanations for the overrepresentation of Indigenous people in the criminal justice system overall. While this is an important context to be considered, the data in this study do not lend themselves to consider these factors or the impacts of relevant programs and legislative changes over time.

Indigenous accused as likely as White accused to receive a guilty decision

Indigenous accused and White accused were equally likely to receive a guilty decision across the entirety of the study period, from 2016/2017 to 2020/2021. In this study, a guilty decision includes both findings of guilt by the court and guilty pleas. This is the case across age, gender and province or region (i.e., the Atlantic region, Quebec, Ontario, the Prairies and British Columbia with the territories).

The type of offence appeared to influence court decisions. Guilty decisions were more common among Indigenous accused than among White accused when the most serious offence in the case was a violent offence, a property offence, an administration of justice offence or another Criminal Code offence. In contrast, there was no difference between Indigenous accused and White accused when the most serious offence in the case was a Criminal Code traffic offence or another Federal Statute offence.

An accused is acquitted when a judge or jury returns a judgment of "not guilty." Cases with an Indigenous accused were 62% less likely to end in an acquittal than those with a White accused.

Indigenous accused far more likely to have a case result in a stay of proceedings

From 2016/2017 to 2020/2021, cases involving an Indigenous accused were 72% more likely to result in a stay of proceedings than those involving a White accused. A stay of proceedings is an order by the judge or the Crown prosecutor that prevents any further action on a prosecution, either permanently or temporarily. Importantly, data on stay of proceedings in this study include instances in which charges are stayed or withdrawn due to alternative measures, extrajudicial measures or other diversion programs. It is currently not possible to distinguish between the various reasons for these decisions.

Over the same period, cases with an Indigenous accused were 21% less likely to result in a withdrawal, dismissal or discharge than cases with a White accused. These outcomes all put an end to criminal court proceedings and reflect discretionary decisions on the part of prosecutors or judges.

Indigenous accused more likely to receive a custody sentence

From 2016/2017 to 2020/2021, Indigenous accused were 45% more likely to be sentenced to custody upon being convicted than White accused. These findings were generally consistent when further broken down by gender and age. Among accused with no prior convictions, the likelihood of being sentenced to custody was 46% higher for Indigenous accused than White accused; however, the gap narrowed for accused with five or more prior convictions (20%).

Indigenous accused more likely to receive a conditional sentence

From 2016/2017 to 2020/2021, Indigenous accused were 30% more likely than White accused to receive a conditional sentence following a guilty decision. A conditional sentence is a term of imprisonment of less than two years that may be served in the community under strict conditions. Conditional sentences were introduced by Parliament in 1996 as part of sentencing reforms in an attempt to lessen the use of custodial sentences in Canada. Courts must be satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing.

Indigenous accused less likely to receive probation or a fine

From 2016/2017 to 2020/2021, following a guilty decision, Indigenous accused were 16% less likely than White accused to receive probation as their most serious sentence. A probation order, which can be for up to three years, allows the individual to serve their sentence in the community under conditions prescribed in the order.

Similarly, from 2016/2017 to 2020/2021, Indigenous accused were 24% less likely to receive a fine as the most serious sentence in a case relative to White accused.