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

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Indigenous people (i.e., First Nations, Métis and Inuit) are overrepresented in Canada’s criminal justice system, both as victims or survivors and people accused or convicted of crimes (Perreault, 2022; Burczycka & Cotter, 2023; Saghbini et al., 2021; Statistics Canada, 2022, April 20). Many inquiries, commissions, task forces and research studies point to the historic and ongoing consequences of colonialism as a root cause of overrepresentation (Royal Commission on Aboriginal Peoples, 1996; Chansonneuve, 2005; Truth and Reconciliation Commission, 2015; Clark, 2019; National Inquiry into Missing and Murdered Indigenous Women and Girls, 2019). These factors include socioeconomic marginalization, systemic discrimination and racism. Together, they limit Indigenous peoples’ opportunities and increase their risk of coming into contact with the criminal justice system (Royal Commission on Aboriginal Peoples, 1996; Clark, 2019).

Significant efforts have been made to better understand the extent of overrepresentation across all stages of the criminal justice system, including contacts with the police (Cotter, 2022; Moreau, 2022), criminal courts (Saghbini et al., 2021) and the correctional system (Office of the Correctional Investigator, 2023; Pedneault et al., 2024; Robinson et al., 2023). This research suggests that Indigenous people are overrepresented at all stages of the criminal justice system. Additionally, differential outcomes throughout the criminal justice process may be contributing to the overrepresentation of Indigenous people within the system.

Criminal courts are one area of the justice system where little data are available to quantify the overrepresentation and differential experiences of Indigenous people. However, a recent study found that Indigenous accused are more likely than White accused to experience a guilty decision and to be sentenced to custody upon conviction (Saghbini et al., 2021). This study was national in scope (excluding Quebec and Alberta) and spanned court cases completed from 2005/2006 to 2015/2016. Taken together, its findings provide evidence of differential justice outcomes for Indigenous accused relative to White accused.

The current Juristat article provides updated findings on the outcomes of Indigenous accused and White accused in adult criminal court from 2016/2017 to 2020/2021 across all 13 provinces and territories. Differential court outcomes were examined at the decision (e.g., guilty and acquitted) and sentencing (e.g., custody and probation) stages of the judicial process. Findings are also disaggregated by Indigenous identity group (i.e., First Nations, Métis and Inuit) and sociodemographic characteristics (including gender^Note , age, province or region, type of offence and criminal history).

Importantly, this study focuses on highlighting the extent to which differential criminal court outcomes are experienced by Indigenous accused^Note  and White accused. The data did not allow for the underlying causes of differential outcomes to be examined, such as the historical and ongoing consequences of colonialism, systemic discrimination and racism. Nevertheless, the findings are interpreted within this larger context.

This study used linked data from the Integrated Criminal Court Survey (ICCS) and the 2016 Census of Population long-form questionnaire (see Data sources and methodology section for more information). Identity information was drawn from the Census of Population to create the two study groups (i.e., Indigenous^Note  accused and White^Note  accused) as this information is not available in the ICCS. Indigenous accused are individuals with a completed case in adult criminal court between 2016/2017 and 2020/2021 and who self-identified as Indigenous in the 2016 Census. White accused are those with a completed case in adult criminal court over the same period who identified as neither Indigenous nor as being part of a racialized group^Note  in the 2016 Census.

Characteristics of the accused with a completed case in adult criminal court from 2016/2017 to 2020/2021

Indigenous people are overrepresented as accused in adult criminal courts

Consistent with previous research (Saghbini et al., 2021), recent data show that Indigenous people were overrepresented as accused in adult criminal court in Canada. Whereas Indigenous people represented 4% (Statistics Canada, 2017) of the adult population in 2016 they represented 23% of all accused in adult criminal court from 2016/2017 to 2020/2021. Of the Indigenous accused, 75% were First Nations, 18% Métis, 6% Inuit and 1% had multiple Indigenous identities (Chart 1). White accused were underrepresented in adult criminal courts during this timeframe, representing approximately 75% (Statistics Canada, 2017) of the adult population in Canada but only 59% of the accused in adult criminal court between 2016/2017 and 2020/2021. Together, Indigenous accused and White accused represented 82% of all accused in adult criminal court from 2016/2017 to 2020/2021.

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Indigenous accused were younger with a higher proportion of women, compared with White accused

From 2016/2017 to 2020/2021, a larger proportion of Indigenous accused were women (30%) compared with the proportion of White accused (21%) (Table 1). Additionally, Indigenous accused were younger compared with White accused. For instance, 62% of the Indigenous accused were aged 18 to 34 in comparison to 50% of the White accused (Table 1). This finding is consistent with the Indigenous population in Canada being younger on average than the non-Indigenous population (Statistics Canada, 2017, October 25).

Administration of justice offences were more common for Indigenous accused than White accused

From 2016/2017 to 2020/2021, cases^Note  in which a crime against the person was the most serious offence were the most common among both Indigenous accused (30%) and White accused (26%) (Table 1). A smaller proportion of Indigenous accused (20%) and White accused (23%) were before the courts for a case in which a crime against property was the most serious offence (Table 1). Some differences emerged between Indigenous accused and White accused for other types of cases. Notably, compared with White accused (17%), Indigenous accused (27%) were more likely to be facing cases in which an administration of justice offence represented the most serious charge in the case (Table 1).

Administration of justice charges include failure to appear in court, breach of probation, failure to comply with a court order and being unlawfully at large. The charges can involve acts such as missing a court hearing or probation meeting, violating curfew, and using drugs or alcohol when prohibited. Evidence suggests that Indigenous people are more likely to be charged and convicted of administration of justice offences (Orsi & April, 2013; Pedneault et al., 2024). Available literature suggests that various factors may contribute to these disparities, including socioeconomic and psychological challenges—exacerbated by historical systemic discrimination (e.g., poverty and homelessness, lack of transportation and mental health)—as well as system-based challenges (e.g., lack of community resources, language barriers and unrealistic release conditions) (Orsi & April, 2013). Some have also suggested that these disparities may be caused by cultural differences and ambivalence towards the Western justice system, in particular regarding understanding the consequences of not appearing in court or pleading guilty to minor offences (Bressan & Coady, 2017; Orsi & April, 2013). Evidence also shows that most adult criminal court cases involving a charge for an administration of justice offence lead to a guilty verdict and a custodial sentence (Burczycka & Munch, 2015). Consequently, this could contribute to overrepresentation if one group is disproportionately charged with these types of offences (Department of Justice Canada, 2021).

Indigenous accused had more prior convictions than White accused

A higher proportion of Indigenous accused (48%) had five or more prior convictions than did White accused (25%) (Table 1). By contrast, a much smaller proportion of Indigenous accused (28%) than White accused (52%) had no prior convictions (Table 1). This finding is important, because evidence suggests that accused with more prior convictions are more likely to be reconvicted (e.g., Pedneault et al., 2024). Furthermore, a larger proportion of Indigenous accused (35%) had a previous conviction for a violent offence^Note  compared with White accused (28%) (Table 1). When examining criminal history, it is important to consider the long-standing context of systemic discrimination and bias faced by Indigenous people within and outside the criminal justice system (e.g., Truth and Reconciliation Commission, 2015). These factors increase the likelihood that Indigenous people will come into contact with the criminal justice system and experience worse outcomes than non-Indigenous people (e.g., Cotter, 2022; Saghbini et al., 2021). In other words, criminal history reflects the influence of various factors in addition to prior actions, including socioeconomic marginalization, racism and systemic discrimination.

The Prairies had the largest relative proportion of cases involving Indigenous accused

Over the five-year study period, adult criminal courts in the Prairies (i.e., Saskatchewan, Manitoba and Alberta) had the highest proportion of cases involving Indigenous accused (45%) compared with those involving White accused (44%) (Table 2). Provincially, this region has one of the largest shares of adult Indigenous populations in Canada (9% of the population of the Prairies) (Table 2); therefore, overrepresentation must be considered alongside the demographics of that region. Nevertheless, Indigenous accused were overrepresented in adult criminal court in all the provinces and regions examined in this study. These include the Atlantic region, Quebec, Ontario, the Prairies, and the region of British Columbia and the territories (the latter two had to be grouped because of small counts in the territories). For instance, even though Ontario had a relatively small proportion of cases involving Indigenous accused (10%) relative to White accused (61%), Indigenous accused were still overrepresented relative to their population share within the province of Ontario (3%) (Table 2).

Comparing court decision outcomes between Indigenous accused and White accused

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Decision: Guilty

Indigenous accused were equally likely to experience a guilty decision as White accused 

From 2016/2017 to 2020/2021, Indigenous accused were equally likely to experience a guilty decision as White accused (Chart 2). However, differences emerged when broken down by Indigenous identity groups. Specifically, the relative likelihood of First Nations accused experiencing a guilty decision declined by approximately 9 percentage points from 2016/2017 (+4%) to 2020/2021 (-5%) (Appendix A, Chart A.1). Métis accused also saw a 6 percentage point decrease in the likelihood of receiving a guilty decision relative to White accused from 2016/2017 (-1%) to 2020/2021 (-7%) (Appendix A, Chart A.1). By contrast, Inuit were 17% to 20% more likely than White accused to experience a guilty decision across the five-year period (Appendix A, Chart A.1). The results for Métis and Inuit should be interpreted with caution because of low counts.

Here, a guilty decision includes both findings of guilt by the court and guilty pleas. Previous research has suggested that Indigenous accused may be more likely to plead guilty, even when they are not guilty. Potential factors contributing to these disparities include cultural differences in understanding the criminal justice system, pressure to expedite proceedings, challenges with pretrial detention, pursuit of favourable plea bargains and socioeconomic vulnerabilities (Bressan & Coady, 2017).

Nevertheless, the disparity in guilty decision between Indigenous accused and White accused appears to be decreasing when compared with an earlier national study. From 2005/2006 to 2015/2016, Indigenous accused were on average 14% more likely than White accused to experience a guilty decision (Saghbini et al., 2021). By contrast, the current study found no disparity in guilty decisions from 2016/2017 to 2020/2021. Although both studies used slightly different methodologies (e.g., the current study controlled for crime severity), these findings point to a potential decrease in disparity between Indigenous accused and White accused. Although further research is needed, these findings may be indicative of a greater awareness among court actors of the systemic issues that may disproportionately lead Indigenous people to plead or to be found guilty. For instance, initiatives such as the Indigenous Courtwork Program, the use of Gladue reports, and the incorporation of Indigenous culture and worldviews in court proceedings have aimed to increase awareness and understanding of Indigenous perspectives and to promote more equitable treatment of Indigenous accused (e.g., Department of Justice Canada, n.d.; Ndegwa et al., 2023). More research is needed to assess the impact of these initiatives.

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Relative rate of guilty decisions was consistent across gender, age and province or region

Results were averaged across all cases completed from 2016/2017 and 2020/2021 to allow analyses to be further broken down by sociodemographic characteristics. The data did not allow for most breakdowns to be explored on an annual basis because of small counts. A limitation of these analyses is that, by averaging ARRIs across the five-year period, they mask the differences observed over time. Nevertheless, they can help to shed light on potential sociodemographic factors that might affect the relative rate at which Indigenous accused and White accused experience criminal court outcomes.

When results were averaged from 2016/2017 to 2020/2021, the relative rates of experiencing a guilty decision did not differ across gender, age or province or region (Table 4). For example, the relative rate of Indigenous accused compared with White accused experiencing a guilty decision was similar for women (+2%) and men (-1%), indicating no meaningful influence of gender on the relative rates for this outcome. For First Nations, Métis and Inuit accused, data only allowed for a breakdown by gender and age because of small counts. Age and gender did not influence relative rates of experiencing a guilty decision for these groups either (Table 5).

Higher likelihood of Indigenous accused experiencing a guilty decision when the most serious offence in the case is for a crime against the person

Differences emerged when the averaged results were disaggregated by the most serious offence in the case. Specifically, Indigenous accused were on average more likely than White accused to receive a guilty decision when the most serious offence in the case was for a crime against the person (+9%), a crime against property (+6%), an administration of justice offence (+6%) or another Criminal Code offence (+6%) (Table 4). By contrast, there was no difference between Indigenous accused and White accused when the most serious offence in the case was another federal statute (-2%) or Criminal Code traffic (+4%) offence.

Decision: Acquitted

Indigenous accused were relatively less likely to be acquitted, and the gap is increasing

Indigenous accused were relatively less likely than White accused to be acquitted over the five-year period. Moreover, this gap increased by 8 percentage points from 2016/2017 (-55%) to 2020/2021 (-63%) (Chart 2). When further broken down by Indigenous identity groups, the relative rate of First Nations accused and White accused of being acquitted was the same in 2016/2017 (-64%) and in 2020/2021 (-65%) (Appendix A, Chart A.2). However, there were fluctuations over this period with the largest gap being observed in 2019/2020 (-72%). The relative rate of Métis being acquitted compared with White accused also fluctuated over time, but ultimately declined by 11 percentage points from 2016/2017 (-59%) to 2020/2021 (-70%) (Appendix A, Chart A.2). Similarly, the relative rate of Inuit accused being acquitted fluctuated from 2016/2017 to 2020/2021. Inuit accused were substantially more likely than White accused to be acquitted in 2016/2017 (+44%), but no meaningful gap remained between Inuit accused and White accused by 2020/2021 (+2%) (Appendix A, Chart A.2). Results for Métis and Inuit accused should be interpreted with caution because of low counts.

When averaged over the five-year period, relative rates of experiencing an acquittal were consistent across gender, age, province or region, most serious offence in the case and criminal history (Table 4). This relative rate was also consistent across gender and age for First Nations people, Métis and Inuit (Table 5).

Decision: Stay of proceedings

Likelihood of Indigenous accused encountering a stay of proceeding increased substantially

In 2016/2017, Indigenous accused were 54% more likely to encounter a stay of proceedings relative to White accused (Chart 2). This gap increased by 42 percentage points over five years, reaching a high of 96% in 2020/2021. This means that, in 2020/2021, Indigenous accused were almost 100% more likely to encounter a stay of proceedings relative to White accused. Consistent with this overall trend, First Nations people, Métis and Inuit all saw an increase in the relative rate of encountering stays of proceedings from 2016/2017 to 2020/2021 (Appendix A, Chart A.3). Notably, Inuit were less likely than White accused to encounter a stay of proceeding in 2016/2017 (‑66%), but the relative use of stays increased by 106 percentage points over the five-year period (Appendix A, Chart A.3). Ultimately, Inuit accused were 40% more likely to experience a stay of proceedings relative to White accused by 2020/2021 (Appendix A, Chart A.3). First Nations people and Métis were more likely than White accused to encounter a stay of proceeding throughout the five-year period.

Given the various reasons for which a case may be stayed (e.g., abuse of process, infringement on the rights of accused or use of diversion measures), the implications of these findings are unclear. For instance, if Indigenous accused are more likely to encounter stays related to infringements of rights, this could point to systematic bias within the criminal justice system. Conversely, if Indigenous accused are more likely to encounter stays for diversion purposes, this could be indicative of efforts to divert Indigenous people away from the criminal justice system and to more appropriate services. Addressing gaps in data related to stay of proceedings will be important for disentangling the potential implications of these findings.  

Indigenous accused and White accused encountering a stay of proceedings differed by gender

When results were averaged from 2016/2017 to 2020/2021, a smaller gap between Indigenous accused and White accused was observed for women (+63%) than for men (+75%) (Table 4). This pattern of findings was primarily driven by differences in average relative rates for First Nations women (+71%) and First Nations men (+83%) (Table 5), given that First Nations people represented the largest proportion of Indigenous accused. Inuit accused also showed a similar pattern such that Inuit women (-24%) were on average even less likely than Inuit men (-14%) to encounter a stay of proceedings relative to White women and men, respectively (Table 5). No gender differences were observed when comparing Métis and White accused.

Relative rate of Indigenous accused encountering a stay of proceedings differed by provinces and regions

When relative rates were averaged over the five-year period, Quebec had the highest average relative rate of Indigenous accused encountering a stay relative to White accused (+79%) (Table 4). By contrast, Ontario (+64%) and the Prairies (+65%) had the lowest average relative rates.

Additionally, cases in which the most serious offence was for a federal statute other than the Criminal Code had the highest average relative rate of Indigenous accused experiencing a stay of proceedings (+81%) (Table 4). Cases with the lowest average relative rate involved crimes against the person (+56%), crimes against property (+56%) and administration of justice offences (+56%) as the most serious offence.

Criminal history also appeared to have an impact on the relative rate of encountering a stay. Specifically, Indigenous accused were on average most likely to encounter a stay of proceedings compared with White accused when they had no prior convictions (+73%) (Table 4). This relative difference declined as the number of prior convictions increased. For instance, the smallest relative difference between Indigenous accused and White accused was observed for those who had five or more prior convictions (+59%).

Decision: Withdrawal, dismissal or discharge

Indigenous accused consistently less likely to experience a withdrawal, dismissal or discharge

Compared with White accused, Indigenous accused were less likely to experience a withdrawal, dismissal or discharge in 2016/2017 (-27%) (Chart 2). This was followed by a slight increase in the relative rate of Indigenous accused experiencing these decisions by 2020/2021 (-22%). This trend was primarily driven by an increase in the relative rate of First Nations accused experiencing a withdrawal, dismissal or discharge compared with White accused between 2016/2017 (-29%) and 2020/2021 (-22%) (Appendix A, Chart A.4). The relative rate between Métis and White accused fluctuated over time but was essentially the same in 2016/2017 (-17%) and 2020/2021 (-15%) (Appendix A, Chart A.4). By contrast, Inuit saw a 15 percentage points decrease in the relative rate of experiencing a withdrawal, dismissal or discharge from 2016/2017 (-35%) to 2020/2021 (-50%) (Appendix A, Chart A.4).

Similar to stays of proceedings, withdrawals, dismissals and discharges are at the discretion of the Crown prosecutor or the judge. Given that these dispositions are commonly associated with charges that do not have sufficient evidence, a lower relative rate of experiencing these outcomes may not be indicative of a problem. It is possible that accused are diverted from the system before these types of charges are filed, or that charges are being diverted to alternative measures. The latter would be captured under a stay of proceedings in the current study. Nevertheless, obtaining a withdrawal, dismissal or discharge ends all criminal court proceedings, whereas a stay of proceedings allows for the case to be reopened within the following year.

Relative rates of withdrawals, dismissals and discharges were consistent across gender, age, and province or region

After averaging relative rates of experiencing a withdrawal, dismissal or discharge over the five-year period from 2016/2017 to 2020/2021, results were consistent across gender, age, and province or region (Table 4). This consistency was also generally found in results for First Nations, Métis and Inuit accused (Table 5). The difference between the relative rate of Indigenous accused and White accused experiencing a withdrawal, dismissal or discharge was the largest for cases involving a Criminal Code offence as the most serious offence (-27% to -33%) (Table 4). The difference was smaller for cases in which the most serious offence was against another federal statute (-15%).

Comparing sentencing outcomes between Indigenous accused and White accused

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Sentence: Custody

Indigenous accused were more likely to receive a custody sentence

Among the accused who experienced a guilty decision, Indigenous accused were more likely to receive a custodial sentence than White accused from 2016/2017 to 2020/2021. The relative rate of receiving a custodial sentence followed a decreasing trend for Indigenous accused from 2016/2017 to 2019/2020, with the sharpest decline (12 percentage points) observed from 2018/2019 to 2019/2020 (Chart 3). The latter coincides with the COVID-19 pandemic, when measures were implemented to reduce the custodial population to mitigate the risks of COVID-19, while balancing public safety considerations (Department of Justice Canada, 2022). The closing of the disparity in custodial sentences during this time may indicate that the reduction in the custodial population may have had a greater impact on Indigenous accused than White accused. However, the gap in custodial sentences between Indigenous accused and White accused returned to pre-pandemic levels by 2020/2021 (+46%) (Chart 3).

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The overall trend in custodial sentences was primarily driven by First Nations accused, whereas Métis and Inuit showed distinct patterns over the five-year period. Specifically, the relative rate of receiving a custodial sentence increased by 17 percentage points for Métis accused relative to White accused from 2016/2017 (+17%) to 2020/2021 (+34%) (Appendix B, Chart B.1). Only a minor break in this trend was observed in 2019/2020 (+25%). By contrast, Inuit accused experienced a decrease in the relative rate of receiving a custodial sentence from 2016/2017 (+73%) to 2020/2021 (+50%) (Appendix B, Chart B.1).

Despite attempts to address the overrepresentation of Indigenous people in custody in Canada (see Text Box 1), Indigenous accused continue to be relatively more likely than White accused to be sentenced to custody upon conviction. These findings are in line with the increasingly disproportionate number of Indigenous people serving custodial sentences in Canada (Office of the Correctional Investigator, 2022; Robinson et al., 2023). By 2020/2021, Indigenous adults accounted for about one-third of all adult admissions to provincial and territorial (31%) and federal (33%) custody, while representing approximately 4% (Statistics Canada, 2017) of the Canadian adult population.

Atlantic and Prairie regions had the highest relative rate of Indigenous accused receiving a custodial sentence following a guilty decision

When results were averaged from 2016/2017 to 2020/2021, the disparities between Indigenous accused and White accused receiving custodial sentences were generally consistent across gender and age (Table 6). The only exception was for Indigenous accused over the age of 55 who experienced the most disparity relative to White accused. The same pattern of results was observed when data were disaggregated for First Nations people, Métis and Inuit (Table 7). Of the Indigenous groups, Métis accused experienced the least disparity in custodial sentences relative to White accused.

After disaggregating relative rates by province or region, British Columbia and the territories (combined because of small counts) had on average the smallest disparity between Indigenous accused and White accused receiving a custodial sentence (+34%), whereas the largest disparities were observed in the Atlantic provinces (+51%) and the Prairies (+50%) (Table 6).

Indigenous accused with no prior convictions were more likely than White accused to receive a custodial sentence

Key differences were also observed when results were disaggregated by criminal history characteristics. The relative rate of Indigenous accused receiving a custodial sentence was the highest among those with no prior convictions (+46%) and the lowest among those with five or more prior convictions (+20%) (Table 6). These findings suggest that disparities between Indigenous accused and White accused are the most pronounced when considering those without a prior criminal history. A similar trend was also observed for Indigenous accused without any prior convictions for a violent offence (+50%) and those with at least one prior conviction for a violent offence (+27%) (Table 6).

Relative gap in length of custodial sentences received by Indigenous accused and White accused is closing

In 2016/2017, Indigenous accused who received a custodial sentence were relatively more likely than White accused to receive a short-term custodial sentence (+14%) and relatively less likely to receive a medium-term custodial sentence (-23%). However, these relative differences disappeared by 2020/2021 (+3% and +2% respectively) (Chart 4). Indigenous accused were less likely than White accused to receive a long-term custodial sentence throughout the five-year period (Chart 4). Although, the likelihood of Indigenous accused receiving a long-term custodial sentence relative to White accused increased by 29 percentage points from 2016/2017 (-54%) to 2020/2021 (-25%). These data could not be broken down for First Nations people, Métis, and Inuit because of small counts.

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Relative rates for short-, medium- and long-term custodial sentences varied by age and province or region

When results were averaged across the five-year period from 2016/2017 to 2020/2021, disparities in the length of custodial sentences were consistent across gender but varied according to age. For instance, Indigenous accused aged 35 to 44 (-43%) and 45 to 54 (-42%) were the least likely to receive a long-term custodial sentence relative to White accused when compared with those aged 18 to 24 (-23%) (Table 8). Additionally, average relative differences in custodial sentence lengths between Indigenous accused and White accused differed across the province or region. When compared with other provinces or regions, Indigenous accused in Ontario and the Prairies were the least likely to receive medium-term (-11% and -13%, respectively) and long-term (-26% and -33%, respectively) custodial sentences and the most likely to receive a short-term (+7% and +8%, respectively) custodial sentence (Table 8).

Sentence: Conditional sentence

Disparity in rate of Indigenous accused receiving a conditional sentence relative to White accused is narrowing

From 2016/2017 (+35%) to 2020/2021 (+25%), Indigenous accused were relatively more likely than White accused to receive a conditional sentence following a guilty decision (Chart 3). However, the relative difference decreased by 10 percentage points over this five-year period. With the exception of a sharp decrease in the relative difference in 2019/2020—when the COVID-19 pandemic began in Canada— followed by a slight increase in 2020/2021, the gap in the likelihood of receiving a conditional sentence between Indigenous accused and White accused seems to be narrowing over time. However, this trend is uniquely explained by the experiences of First Nations accused, as both Métis and Inuit saw an increase in the relative rate with which they received conditional sentences compared with White accused between 2016/2017 (+16% and -6%, respectively) and 2020/2021 (+54% and +16%, respectively) (Appendix B, Chart B.2). The results for Métis and Inuit should be interpreted with caution because of low counts.

The narrowing of the gap between First Nations accused and White accused suggests that the use of conditional sentences as an alternative to incarceration for First Nations people specifically may be decreasing. Nevertheless, the potential impacts of this trend are unclear, because critics have noted that these sentences may inadvertently increase the number of Indigenous people in custody attributable to breaches of the conditions imposed (Clark, 2019). This is particularly concerning given research showing that Indigenous people serving a correctional sentence are more likely to be reconvicted of administration of justice offences (e.g., breaches) than non-Indigenous people (Pedneault et al., 2024). It will also be important to monitor future trends in the use of conditional sentences following the passing of Bill C-5 in 2022, An Act to Amend the Criminal Code and the Controlled Drugs and Substances Act, which increased the availability of conditional sentences in Canada.

Relative rate of receiving a conditional sentence was the largest for Criminal Code traffic offences

When results were averaged over the five-year period, gender and age had only a minor influence on the results. In contrast, key differences were observed between the most serious types of offences in the case. Indigenous accused who were convicted for a Criminal Code traffic offence (+80%) had the highest relative rate of receiving a conditional sentence compared with White accused (Table 6). Indigenous accused who were convicted for a crime against property (+7%) had the lowest relative rate. Differences were also found between the provinces and regions. Specifically, Quebec had the highest relative rate of Indigenous accused receiving a conditional sentence (+40%) and British Columbia with the territories (combined because of low counts) had the lowest (+15%) (Table 6).

Sentence: Probation

Indigenous accused were less likely than White accused to receive probation, but the gap is closing

Indigenous accused were relatively less likely than White accused to receive probation following a guilty decision, but this disparity narrowed by seven percentage points from 2016/2017 (-24%) to 2020/2021 (-17%) (Chart 3). However, when further broken down by Indigenous identity group, this trend was only observed for First Nations and Métis accused (Appendix B, Chart B.3). By contrast, Inuit were increasingly more likely than White accused to receive probation from 2016/2017 (+17%) to 2020/2021 (+24%) (Appendix B, Chart B.3). When relative differences were averaged over the five-year period, results were generally consistent across gender, age, province or region, and criminal history characteristics (Table 6).

Sentence: Fine

Indigenous accused were less likely to receive a fine as their most serious sentence

Indigenous accused were relatively less likely to receive a fine as the most serious sentence in a case relative to White accused over the five-year study period (Chart 3). However, the relative difference between Indigenous and White accused became slightly smaller from 2016/2017 (-27%) to 2020/2021 (-22%). There was also a notable increase in the relative rate of Indigenous accused receiving a fine as the most serious sentence in the case relative to White accused in 2019/2020 (-16%). The latter represents the smallest relative difference between Indigenous and White accused over the five-year period (Chart 3). These findings are consistent with the relatively large changes in trends observed for other types of sentences in 2019/2020 when the COVID-19 pandemic had the largest impact on the criminal justice system (Department of Justice Canada, 2022). First Nations accused generally followed the overall trend observed for all Indigenous accused. However, the relative difference for both Inuit accused and Métis accused increased from 2016/2017 to 2020/2021 (Appendix B, Chart B.4). The results for Métis and Inuit should be interpreted with caution because of low counts.

Summary

This study examined the overrepresentation and outcomes of Indigenous people in adult criminal courts in Canada. Using the adjusted relative rate index (ARRI), the study analyzed various court outcomes for Indigenous accused and White accused, including guilty decisions, stays of proceedings, acquittals and sentencing over a five-year period (2016/2017 to 2020/2021).

Persistent disparities in decision and sentencing outcomes were found for Indigenous accused. For example, they were less likely to be acquitted and more likely to receive custodial sentences compared with White accused. These disparities highlight the systemic challenges faced by Indigenous people within the criminal court system.

Further, despite finding no difference in the relative rate of guilty decisions, the overrepresentation of Indigenous people in correctional institutions persists. The current findings potentially suggest that factors beyond guilty decisions, such as sentencing disparities and access to diversion programs, may contribute to this disparity.

Distinction-based analyses revealed some notable differences in outcomes for First Nations people, Métis and Inuit. This underscores the importance of a distinctions-based approach to understanding and addressing the overrepresentation of Indigenous people in the criminal justice system.

It is important to note that data limitations prevent a comprehensive understanding of the underlying reasons for the disparities in criminal court outcomes for Indigenous accused and White accused. Further research is needed to explore factors such as systemic biases, levels of access to culturally appropriate court services, and the impacts of historical trauma and socioeconomic marginalization on Indigenous communities.

Detailed data tables

Table 1 Number of Indigenous accused and White accused in adult criminal court, by select sociodemographic characteristics, Canada, 2016/2017 to 2020/2021

Table 2 Identity of accused in adult criminal court compared with their representation in the adult population by select provinces and regions, Canada, 2016/2017 to 2020/2021

Table 3 Comparison of average adjusted relative rate index to average relative rate index, Canada, 2016/2017 to 2020/2021

Table 4 Court decisions for Indigenous accused relative to White accused in adult criminal court, Canada, 2016/2017 to 2020/2021

Table 5 Court decisions for First Nations, Métis and Inuit accused relative to White accused in adult criminal court, Canada, 2016/2017 to 2020/2021

Table 6 Sentencing outcomes upon conviction for Indigenous accused relative to White accused in adult criminal court, Canada, 2016/2017 to 2020/2021

Table 7 Sentencing outcomes upon conviction for First Nations, Métis and Inuit accused relative to White accused in adult criminal court, Canada, 2016/2017 to 2020/2021

Table 8 Length of custody sentences for Indigenous accused relative to White accused in adult criminal court, Canada, 2016/2017 to 2020/2021

Data sources and methodology

Integrated Criminal Court Survey

The Integrated Criminal Courts Survey (ICCS) is an administrative survey conducted by the Canadian Centre for Justice and Community Safety Statistics. It collects and maintains data from administrative courts records on cases involving Criminal Code and other federal statute offences in Canadian courts on an annual basis. It contains information on appearances and both characteristics of the case and the accused person. 

2016 Census of Population long-form questionnaire

The Census of Population is a mandatory survey conducted every five years. It provides statistical information on the demographic characteristics, socioeconomic characteristics and racialized identity of the Canadian population. The 2016 Census long-form questionnaire was sent to one in four households in 2016. The census long-form sampling frame includes 100% coverage of most reserves.

Social Data Linkage Environment

The Social Data linkage Environment (SDLE) is a secure platform that enables the linkage of population data files for social analysis. At the core of the SDLE is the Derived Record Depository (DRD), which is a national database of individuals derived from several Statistics Canada data files and contains only basic personal identifiers. All datasets being linked within the SDLE are linked to the DRD, which ultimately allows them to be integrated using a unique key.

Linkage file: Integrated Criminal Courts Survey and 2016 Census

A critical component of this study is a linkage between the ICCS and the 2016 Census of Population long-form questionnaire. The purpose of this linkage was to obtain information from the census on the Indigenous identity of the criminal court population as this information is not available on the ICCS. The linkage rates between the annual ICCS cohorts (i.e., 2016/2017, 2017/2018, 2018/2019, 2019/2020 and 2020/2021) and the 2016 Census of Population long-form questionnaire ranged from 14% to 16%. 

Linkage weights

Linkage weights were developed to consider the rate of non-linkage between the ICCS cohort files and the 2016 Census of Population long-form questionnaire. Not all individuals in the ICCS cohort files were linked to the 2016 Census as the 2016 Census covers 25% of the population. Only a fraction of records in the ICCS will match a corresponding record in the 2016 Census, which raises concerns about coverage and sampling. As a result, it is likely that the distributions of key demographic and socioeconomic factors will be different between the linked ICCS and census file and the original ICCS cohort files. This issue can lead to bias in estimating the rates at which accused individuals experience court outcomes unless additional corrective steps are taken. Therefore, to help minimize such bias and enable generalization of the findings from the linked samples to the original ICCS cohort files, weights are produced to ensure that the distribution of background characteristics for accused in the ICCS that linked to the 2016 Census of Population long-form questionnaire reflect the distribution of characteristics in the full population of accused in criminal court. All results are weighted using these weights.

Furthermore, to ensure better linkage rate, multiple imputation^Note  (Mayer, 2024) was used to fill in the missing values on age and sex in ICCS data. Simply dropping the cases with missing values was not defensible given that the missing values were concentrated primarily in regions with a higher Indigenous population. Additionally, the calibration of the linked ICCS to census file was not possible in the presence of missing data. Details on the weight development strategy are available upon request.

Accounting for crime severity using the adjusted relative rate index

The ARRI goes beyond the RRI by factoring in crime severity in addition to the accused person’s Indigenous identity when analyzing court outcomes. To achieve this, the first step involves calculating the probability of an accused experiencing a specific court outcome, such as a guilty verdict.

In this study, the calculation is performed using a statistical method called a vector generalized additive model (VGAM) (Yee, 2015). The VGAM^Note  employs logistic regression to estimate the probability of an event (court outcome) based on the following inputs: (1) a crime severity weight (based on the crime severity weights used in computing the Crime Severity Index) that accounts for the seriousness of the crime in question and (2) an Indigenous identity (or group) indicator variable.

Once the predicted probabilities of a guilty verdict are estimated through the VGAM, the ARRIs can be computed. Here, the average predicted probability of an Indigenous accused receiving a guilty verdict is divided by the average predicted probability of a White accused receiving a guilty verdict for the same crime severity. This ratio helps us understand how Indigenous accused fare relative to White accused in terms of guilty verdicts, after accounting for both crime severity and Indigenous identity.

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