The incarceration of Aboriginal offenders: trends from 1978 to 2001.

• Author: Roberts, Julian V.

Visible minorities generally account for disproportionate numbers of admissions to custody in all Western nations, including Canada (see Tonry 1997; Roberts and Doob 1997). Aboriginal peoples in particular are over-represented in the prison populations of most Western nations, including Australia, Canada, and New Zealand. For example, in Australia in 2001, Aboriginal offenders accounted for 20% of the total custodial population, a percentage significantly higher than that for Aboriginals (2.2%) in the general population (Australian Bureau of Statistics 2001). In New Zealand, although approximately 14% of the population is Maori, this group accounted in 1999 for fully 38% of prison admissions (Rich 2000).

In Canada, according to the 2001 census, Aboriginal peoples represented 3.3% of the general population yet a much higher percentage of admissions to custody. In the most recent year for which data are available (2000-2001), Aboriginal Canadians represented 19% of provincial admissions to custody and 17% of admissions to federal penitentiaries (Hendrick and Farmer 2002). The problem in Canada of Aboriginal over-representation has been noted in all principal correctional texts for years now (e.g., Goff 1999; Winterdyk 2000). In addition, although members of the public subscribe to a number of misperceptions about the sentencing and correctional systems (see Roberts and Stalans 1997 for a review), they do seem to be aware of the extent of this particular problem. A nationwide survey found that although most people believed (erroneously) that the incarceration rate was lower in Canada than in most other Western nations, the majority of respondents was aware of the disproportionate number of Aboriginal Canadians in prison (Roberts, Nuffield, and Hann 2000).

Recognition of the problem has led to a number of remedial policy innovations in recent years. How has the problem changed over the past few decades, especially in light of the interventions designed to ameliorate the problem of high rates of Aboriginal sentenced admissions to prison? Although the ethnicity of offenders admitted to custody has been recorded by Statistics Canada for some time and is reported annually in cross-sectional analyses, no analysis of historical trends has been conducted, and that is one of the goals of this article.

Purpose of article

This research addresses a number of important questions with respect to the use of imprisonment for Aboriginal offenders, including the following: How has the volume of Aboriginal admissions to custody changed since Aboriginal status was first recorded in national correctional statistics? Has the number of Aboriginal admissions declined at a faster rate than the number of non-Aboriginal sentenced admissions (as a result of policy changes and appellate decisions designed to address the issue of high rates of incarceration among Aboriginal peoples)?

Any attempt to interpret trends with respect to admissions to custody must consider the effect of three important influences: demographics, crime rates, and criminal justice policy changes. Demographics may influence admissions to custody through influencing the number of offenders entering the justice system. An increase in the proportion of people in the high-crime age category inflates the number of accused persons entering the system and subsequently, the number of offenders sentenced to custody. Similarly, changes in the crime rate affect the number of charges, convictions, and hence custodial admissions. Finally, any policy changes--whether statutory or jurisprudential--may influence the number of convicted offenders being committed to custody rather than having a community-based sanction imposed.

In this paper we grapple with all three influences, although the nature of the data available does not permit a comprehensive examination. For example, although official (UCR) crime data are available going back to 1962, for Canada and the provinces and territories, these data are not broken down by ethnicity. This means that they can shed light on overall changes in admissions to custody patterns but cannot speak to any differences in trends for Aboriginal versus non-Aboriginal offenders. Similarly, demographic data are available through the census, but it is impossible to track changes in the size of the Aboriginal population reliably over the entire period covered by this analysis (1978 to 2001) because of definitional changes over time in the measurement instruments used to ascertain Aboriginal identity. Finally, policy changes with respect to the use of incarceration pertain only to the last few years; sentencing reforms were introduced in 1996. Let us begin, therefore, by describing the nature and likely impact of those reforms on the volume of Aboriginal admissions to custody.

Policy interventions to reduce the number of Aboriginal offenders admitted to custody

During the 1990s several important publications, including two reports from Royal Commissions of Inquiry (e.g., Royal Commission on Aboriginal Peoples 1996) focused attention on the problem of the over-representation of Aboriginal offenders in prison. In addition, a wealth of academic commentary urged the federal government to act on this pressing criminal justice problem. Judges are not entirely impervious to the tides of popular and professional opinion, and these forces alone may have influenced the extent to which judges use imprisonment as a sanction for Aboriginal offenders, with the result that Aboriginal incarceration rates dropped.

Whatever their effect on the judiciary, these forces, as well as others, moved Parliament to include an Aboriginal reference in one of the sentencing principles in its sentencing reform Act (Bill C-41), which was proclaimed in 1996. In that year Parliament created a new era in sentencing, when it codified the purpose and principles of sentencing and introduced a number of other reforms to the sentencing system (see Roberts and Cole 1999). One of the codified principles pertains to the principle of restraint as it relates to the sentencing of Aboriginal offenders.

Section 718.2(e)

There is general agreement among researchers and scholars that the causes of the high rates of Aboriginal admissions to custody are complex. Some of these reflect the influences of age, length of offence history, unemployment, substance abuse, and the violent nature of offending, as well as the impacts of personal and family problems (Trevethan, Tremblay, and Carter 2000). However, overt discrimination by judges at sentencing does not appear to be one of the causes. Nevertheless, recognition of the pressing problem of Aboriginal admissions led the federal government to add a qualification to a general principle of restraint in the use of incarceration as a sanction. Section 718.2(e) of the Criminal Code states that "all available sanctions other than imprisonment should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders" (emphasis added).

This provision was subsequently the focus of important guideline judgments from the Supreme Court of Canada. In a 1996 appeal (R. v. Gladue) the Court provided a robust interpretation of section 718.2(e), affirming its remedial purpose regarding high rates of Aboriginal incarceration (see discussion in Roach and Rudin 2000). The Court stated that the purpose of this provision "is to ameliorate the serious problem of over-representation of aboriginal people in prisons" (at para. 93). The Court further concluded that "the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non-Aboriginal offender for the same offence" (at para. 93).

The Supreme Court did make it clear, however, that for the most serious crimes, which would result in the imposition of a penitentiary term, there should be no difference in sentencing outcome between Aboriginal and non-Aboriginal offenders. (2) This message was reiterated a year later in R. v. Wells, where the court noted that "the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between Aboriginal and non-Aboriginal offenders" (at para. 42). (3)

These judgments from the Court have provided the impetus for the creation of the so-called "Gladue court" in Toronto, a dedicated court that processes Aboriginal offenders. In this way, the court has a greater ability to impose sentences that take into account Aboriginal community resources in Toronto. Services are provided by the Aboriginal Legal Services organization in Toronto, one of the interveners in the Gladue appeal in the Supreme Court. By sensitizing the court both to section 718.2(e) and to the alternative programs that can give life to the provision's intention, the Gladue court may have resulted in fewer Aboriginal admissions to custody in the Toronto area. (4)

Section 718.2(e) has provoked a lively debate among commentators (e.g., Pelletier 2001; Stenning and Roberts 2001; Rudin and Roach 2002; Daubney 2002; Roberts and Stenning 2002; Haslip 2003). Whatever the merits of the respective sides of that debate, judges have received a clear message from both Parliament and the highest court in the land. Accordingly, it would be reasonable to expect two trends to be discernible in the custodial sentenced admissions statistics: first, a general decline in sentenced admissions to custody for both non-Aboriginal and Aboriginal offenders, as a result of the codified principle of restraint; and second, a disproportionate decline in the volume of Aboriginal sentenced admissions, as judges implement the statutory direction from Parliament and the appellate guidance from the Supreme Court to pay particular attention to the circumstances of Aboriginal offenders.

Conditional sentence of imprisonment

Another reform introduced in 1996 is relevant to any analysis of imprisonment trends and in...