The lessons to be learned from what we know about Aboriginal offending and over-representation in the criminal justice system are unlikely to be very palatable to those who persist in attributing these problems to racial discrimination or cultural insensitivity on the part of the criminal justice system and its workforce. The oft-repeated mantra that “the criminal justice system has failed Aboriginal people” can be fairly regarded as no more than a specific reference to the more general truth that the criminal justice system is able to make a very limited contribution toward the reduction (let alone elimination) of problems of crime and victimization more generally in our society, no matter who is involved in them as offenders and victims. We can only term it a “failure” in this respect if we have unrealistic expectations of its potential to generate solutions to these problems in the first place. In fact, as many criminologists have argued for a long time, much of what is done in the name of criminal justice may actually exacerbate rather than alleviate such problems (MacNaughton-Smith, 1970). This is just as likely to be true for Aboriginal as for non-Aboriginal communities.
An honest answer to the question: “What can the criminal justice system do to reduce Aboriginal crime and victimization, and hence Aboriginal over-representation in the criminal justice system?” is, regrettably and probably, “not much,” since the underlying conditions that give rise to these problems are so far beyond the capacity (or qualifications) of the police and other criminal justice officials to respond to them. But this is just as true for non-Aboriginal as for Aboriginal crime and victimization. Exile on Main Street: Some Thoughts on Aboriginal Over-Representation in the Criminal Justice System
A good start would be a candid recognition that the circumstances and conditions that give rise to Aboriginal over-representation in the criminal justice system are not in any significant sense unique to Aboriginal people. Although Aboriginal people disproportionately experience these circumstances and conditions, they are not qualitatively different from the circumstances and conditions experienced by others (notably young, single, poorly educated, lower-class males with substance abuse problems, of almost any ethnicity) who are also seriously over-represented in the criminal justice system. Consequently, they are not circumstances or conditions that one needs to be either Aboriginal or particularly “culturally sensitive” to Aboriginal people to address. Not surprisingly, there is little evidence that “culturally based” criminal justice policy responses in this area have alone had any significant impact in reducing Aboriginal involvement in crime and victimization or over-representation in the criminal justice system, despite the program emphasis that has been placed on them over the last 30 years or so.
Of course, our argument that separate Aboriginal justice institutions, and provisions for differential treatment of Aboriginal offenders within the mainstream criminal justice system, are, by themselves, unlikely to provide effective solutions to the problem of Aboriginal over-involvement in the criminal justice system will be received as heresy by those who see the promotion of such institutions as a key plank in the campaign for Aboriginal self-government. An ideological commitment to Aboriginal self-government, however, cannot be accepted as a reason to disregard the overwhelming evidence about the genesis of Aboriginal involvement in crime and the criminal justice system which has accumulated in recent years. Those who believe that self-government could be a panacea for such problems would do well to reflect that this has so far not proved to be the case in non-Aboriginal society. Despite the capacity to govern their own affairs, there remain certain clearly identifiable non-Aboriginal groups which are still substantially “over-represented” in crime and the criminal justice system in much the same way that members of the Aboriginal population are. These groups are too often the non-Aboriginal poor and disadvantaged.
Exile on Main Street: Some Thoughts on Aboriginal Over-Representation in the Criminal Justice System
Notes
1 We use the term “over-representation” to refer simply to the situation in which the proportion of Aboriginal people involved in the criminal justice system, as offenders or victims, is greater than the proportion of Aboriginal people in the general population (i.e., a purely statistical over-representation). Use of the term in this sense does not involve any judgment as to whether such disproportionate representation may or may not be justified (or justifiable) (e.g., by disproportionate offending and/or victimization). 2 The Constitution Act, 1982 recognizes that Aboriginal peoples include North American
Indians, Métis, and Inuit. More specifically, Registered or Status Indians refers to those peoples who qualify for registration under the Indian Actof 1985.
3 For a recent review of these see Roberts and Stenning, 2001.
4 “Over-policing” refers to the proposition that police discriminately target Aboriginal suspects, leading to over-representation of Aboriginal people in arrest and charge statistics.
5 “Under-policing” refers to the proposition that Aboriginal crime victims do not receive equal attention from police as that received by non-Aboriginal victims, with the result that crimes committed against them are not processed through the criminal justice system.
6 [1999] 1 S.C.R. 688. 7 [2000] 1 S.C.R. 207.
8 R. v. Gladue[1999] 1 S.C.R. 688, paras. 37 and 77.
9 The data come from the 1999 Statistics Canada General Social Survey.
10 The data are from the 1999 Statistics Canada General Social Survey Aboriginal sample and include people who identify themselves as Aboriginal.
11 Aboriginal people living in inner city areas were contacted on the street, in social agencies and drop-in centres in each of the four cities. Another Aboriginal person, who was a part of the research and lived in and was familiar with the Aboriginal population in the particular inner city area, made the contacts.
12 Overall, people who self-identified as Aboriginal accounted for 17 percent of admissions to federal and provincial/territorial custody in 1998-99. This proportion varied greatly by jurisdiction, however, from a high of 76 percent in Saskatchewan to a low of two percent in Quebec. See CCJS (2001a: p. 10 and Table 1).
13 Offences are disproportionately against the person, and spouses, ex-spouses, and partners are often victims. Aboriginal victims also tend to be younger than non-Aboriginal victims and are more likely than non-Aboriginal victims to receive some kind of physical injury (CCJS, 2000).
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