State of the Criminal Justice System Dashboard

Understanding the Experiences of Indigenous Youth Offenders with the Criminal Justice System

The overrepresentation of Indigenous youth and adults in Canada’s criminal justice system, both as victims/survivors and accused/offenders, has led the Supreme Court of Canada and many academics and organizations to describe the situation as a “crisis.”^Footnote89 While Indigenous youth represented 8% of Canada’s youth population, they accounted for one-half (50%) of youth admissions to correctional services in 2020/2021.^Footnote90 Systemic discrimination in various spheres of Canadian society, including the youth criminal justice system (e.g., police, courts and corrections), contribute to overrepresentation. For example, Indigenous youth are more likely to be denied bail, spend more time in custody while awaiting trial, and receive longer sentences regardless of other factors like the severity of the offence and criminal history.^Footnote91 Indigenous youth who have experienced custody are likely to view the criminal justice system as “a non-rehabilitative and counterproductive structure.”^Footnote92

The following sections of the Dashboard provide an overview of historic and ongoing systemic discrimination against Indigenous youth to better contextualize their experiences with the criminal justice system. This is done by looking at the effects of colonialism on Indigenous youth, their exposure to social determinants of crime, their specific experiences with the criminal justice system, as well as some ongoing gaps in services and supports for addressing their unique needs. These sections do not present an exhaustive review of the literature on the overrepresentation of Indigenous youth. For more information, please refer to Justice Canada’s Indigenous Youth Roundtables: Overrepresentation of Indigenous Youth in Canada’s Criminal Justice System or bibliography.

It is important to note that there is limited information available on Indigenous youth as victims and survivors. Therefore, the following sections focus primarily on research related to Indigenous youth experiences as accused and offenders in the criminal justice system. For more information about the experiences of Indigenous peoples in the Canadian criminal justice system as both accused/offenders as well as victims/survivors, please see the Indigenous Peoples theme and the section on Indigenous Women and Girls.

While information about First Nations, Inuit and Métis youth is combined in this section due to a lack of available distinction-based information, it is important to remember that Indigenous youth are members of distinct nations with different histories, cultures, languages, knowledge, worldviews and experiences.

• Effects of Colonialism on Indigenous Youth

  Colonial laws, policies and practices have caused profound harm to Indigenous peoples, including disrupting and dismantling Indigenous family, community, economic and governance structures. For example, the residential school system, the 60s scoop and forced relocation policies^Footnote93, removed Indigenous children from their families, in an attempt to assimilate them and strip them of their cultures, identities and traditions.^Footnote94 These practices remain embedded in Canadian systems today and continue to negatively impact Indigenous families. For instance, Indigenous children and youth continue to be removed from their families and placed into care at a disproportionate rate, leading to the overrepresentation of Indigenous children and youth in the child welfare system.^Footnote95 As a result of past and current practices, many Indigenous children have experienced and continue to experience trauma—including individual trauma and/or intergenerational trauma.^Footnote96 The impact of these traumas is further compounded by ongoing experiences of systemic discrimination, the loss of cultural identity and socio-economic marginalization. For more information about the impact of colonialism, please see the Indigenous Peoples theme and the section on Indigenous Women and Girls.

• Pathways and Involvement in Crime

  The overrepresentation of Indigenous youth in the criminal justice system is linked to many factors, including child welfare involvement, social determinants of crime, the loss of identity and social belonging, and the lack of community-based activities.^Footnote97 These factors are briefly summarized below. It is important to remember that the relationship between these factors and Indigenous youth involvement with the criminal justice system is complex. For more information about these factors and the overrepresentation of Indigenous youth in the criminal justice system, click on bibliography.

  The child welfare system

  Research has found a strong link between the overrepresentation of Indigenous people in custody and the overrepresentation of Indigenous children and youth in the child welfare system.^Footnote98 When involved in the child welfare system, these children and youth experience disproportionally higher rates of violence, abuse,^Footnote99 and other forms of trauma similar to those experienced by survivors of the residential school system.^Footnote100 These experiences have a direct impact on the involvement of Indigenous youth with the criminal justice system.^Footnote101 Such experiences are also associated with various subsequent issues, during their childhood and adulthood, such as a greater likelihood of experiencing mental health challenges, substance use and addiction problems and further victimization.^Footnote102

  Social determinants of crime

  Social determinants of crime, such as poverty^Footnote103 and a lack of access to education, health services, healthy food, housing and culturally appropriate supports and services, are linked to higher levels of contact with the criminal justice system for Indigenous youth.^Footnote104 For instance, many youth living in Inuit Nunangat face challenges related to housing shortages and food insecurity, which further exacerbate their mental and physical health.^Footnote105 Indigenous youth sometimes find themselves turning to criminal behaviour and gang involvement as a way to provide for themselves, and their families financially.^Footnote106 Not only can the social determinants of health lead to the criminalization of Indigenous youth, but they can also increase their likelihood of being victimized.^Footnote107

  Loss of identity and social belonging

  A longstanding consequence of colonialism is its negative effect on Indigenous peoples’ sense of identity.^Footnote108 The loss of individual, familial and cultural identity, as well as meaningful purpose can create a sense of isolation among many Indigenous youth.^Footnote109 This can make them more likely to engage in high-risk behaviours, such as drug and alcohol use and illegal activity.^Footnote110 Feelings of isolation and lack of social belonging can make the sense of connection and familial relations offered by gang associations seem more attractive.^Footnote111

  Lack of culturally appropriate community-based supports and activities

  Research shows that a lack of access to adequate and culturally appropriate supports and community-based activities is related to Indigenous youth involvement in the criminal justice system.^Footnote112 For example, Inuit youth reported that the lack of local activities can create a sense of isolation, boredom and overall loss of individual purpose and belonging, and they identified that these factors can contribute to participation in risky behaviours, such as minor level offences.^Footnote113 Conversely, sport-related activities, for instance, can help create a supportive environment and a sense of belonging for Indigenous youth.^Footnote114

• The Under- and Over-Policing of Indigenous Youth and Communities

  Indigenous peoples, including youth, are both over- and under-policed.^Footnote115 Indigenous youth are over-policed in that they are more likely to be singled out, stereotyped as being criminals or gang members, and charged by police, compared to non-Indigenous youth.^Footnote116 Due to a high level of police presence in Indigenous communities, Indigenous youth are more likely to come into contact with the police, which may further contribute to their overrepresentation in the criminal justice system.^Footnote117 The interactions between Indigenous peoples and the police have caused Indigenous youth to mistrust police and the criminal justice system more broadly, even before they personally come into contact with the system.^Footnote118 When in contact with the police, Indigenous youth are more likely to defy or refuse to cooperate due to their mistrust, making them more likely to be arrested.^Footnote119 Over-policing can also lead to negative police attitudes towards Indigenous youth, which may influence police practices and responses.^Footnote120 For example, research shows that police are more likely to respond informally when dealing with non-Indigenous youth,^Footnote121 whereas Indigenous youth are more likely to receive a formal response and be denied extrajudicial measures.^Footnote122

  Indigenous youth are also under-policed, a phenomenon where Indigenous youth lack adequate assistance from law enforcement in responding to victimization or potential victimization.^Footnote123 When they bring forward a legitimate claim of their rights being violated or of being victimized, they are often ignored by police and their claims are generally not advanced as quickly as claims made by non-Indigenous people.^Footnote124 For instance, in the context of missing and murdered Indigenous women and girls, research has found that police ignored and in some instances continue to not action concerns from Indigenous families about a missing loved one.^Footnote125 For more information about missing and murdered Indigenous women and girls, please see the page on Understanding Indigenous Women and Girls’ Experiences with Victimization and Violence.

• Use of Gladue Reports in Practice

  In an effort to address the overrepresentation of Indigenous youth in custody, the Youth Criminal Justice Act (YCJA) requires judges to consider alternatives to custody with specific consideration of to the unique circumstances of Indigenous youth—known as the Gladue factors.^Footnote126 Consideration of Gladue factors can be presented throughout the criminal justice process, including at bail decisions, sentencing and parole hearings. Gladue reports can be particularly helpful in presenting the full detailed background of the Indigenous accused, based on interviews with the accused, their Elders and their community, as well as relevant research.^Footnote127

  However, Gladue reports are infrequently used^Footnote128 in the youth context for a number of reasons, the most common one being the lack of trained and available Gladue caseworkers.^Footnote129 While Gladue reports are intended to inform the judge about the unique circumstances of the individual, there are concerns they may also have the unintended consequence of labelling Indigenous youth as a result of their experiences with, for example, poverty, mental health challenges, and family violence. This ultimately impacts how they are treated and perceived within the criminal justice system.^Footnote130 In addition, if left without any supports, some Indigenous youth explained that being interviewed for the report can be re-traumatizing.^Footnote131 According to some youth justice professionals, the potential benefits of Gladue reports must also be weighed against the fact that the reports take additional time to be prepared, which could increase the time spent in remand.^Footnote132

• Use of Extrajudicial Measures and Culturally Appropriate Programming

  Extrajudicial measures and diversion^Footnote133 are often seen by justice professionals, academics and Indigenous youth themselves as a promising approach to addressing the overrepresentation of Indigenous youth in the criminal justice system.^Footnote134 However, there are inequities in how extrajudicial measures are used, especially for overrepresented groups like Indigenous youth.^Footnote135 This may be due to a variety of reasons, such as the lack of culturally appropriate supports and services available to Indigenous youth, as well as a lack of cultural awareness and sensitivity among criminal justice system professionals, which can lead to a failure to address the needs of Indigenous youth victims/survivors and offenders/accused. Where programming does exist however, it is usually not distinctions-based, which often fails to take into consideration the unique needs of First Nations, Inuit and Métis youth offenders.^Footnote136

  Without culturally relevant and appropriate programming, the criminal justice system is not able to heal and/or rehabilitate Indigenous youth offenders. This, coupled with the ongoing individual, familial and community effects of systemic discrimination and intergenerational trauma, make it more challenging for Indigenous youth in the system to build resilience and make them more likely to re-offend.^Footnote137