The Overrepresentation of First Nations and Blacks in the Criminal Justice System

In a special analysis piece published in the Star entitled “Analysis:  Why we should worry about who we’re jailing”, University of Toronto doctoral student Akwasi Owusu-Bempah, explores incarceration statistics and addresses reasons and solutions for the overrepresentation of First Nation and black Canadians in the criminal justice system.  Owusu-Bempah explains early in the article:

As the situation in many American states has made apparent, using incarceration as a means of controlling populations that are viewed as problematic in an effort to reduce crime is a costly endeavour that further intensifies the problems facing these communities rather than making them better. A smarter approach would be to deal with the causes of crime rather than the consequences. This is particularly true in the face of Prime Minister Stephen Harper’s tough-on-crime agenda.

If Canadians are concerned about daylight shootings in public places or the proliferation of gangs in urban centres and rural reserves, we need to rethink how we deal with one of the consequences of the social exclusion that many aboriginal and black Canadians experience.

When looking at the statistics, Owusu-Bempah explains that white Canadians make up a plurality of those involved in the corrections system (which makes sense given that this group makes up the majority of the population) but goes on to explain that, based on population averages, white Canadians are under-represented whereby natives and blacks are over-represented.  These conclusions, based on statistics obtained by Owusu-Bempah, are accurate for both adults and youth.

It is explained that the statistics also show that non-white Canadians are held in pre-trial detention more often than white Canadians.  Those held in pre-trial detention are then more likely to plead guilty, be found guilty at trial, and/or receive a harsher sentence after a plea or trial.  I agree with this conclusion.  As much as we’d like to think that being in pre-trial detention should not affect the ultimate result of the case, my observations suggest otherwise.  Often times it is possible to “plead out” a lot quicker then it is to wait for a trial.  Similarly, sentencing “deals” are often much lower for those who are out of custody than for those who are in custody.

Several reasons for this problem are explored.  One reason is the historical marginalization of both native and black populations:

There are, of course, historical factors that have contributed to the current situation, such as those highlighted by the Idle No More movement (broken treaty promises, residential schools and the system of reserves) and those often reserved for discussion during Black History Month (including often forgotten slavery in some of the territories that would become Canada and legalized segregation), for example.

Another reason is that both these groups tend to have a much higher rate of poverty than white Canadians.  It is a well known fact that there is a clear link between poverty and crime.  While poverty does affect the commission of crime, another reality for the poor is that they do not have the same access to legal counsel as those who can afford to hire a lawyer.  I would assume this has an affect on the overall statistics as well.

Owusu-Bempah concludes by making three suggestions to help solve this problem:

  1. Education.  By making school more relevant and engaging, and offering different types of programs (such as co-operative education and volunteer opportunities), those from communities where crime has become a problem will “pave the way to success”.
  2. Acknowledge and come to terms with the difficult parts of our nation’s history.  Owusu-Bempah is quite clear that “our country was founded on beliefs about racial superiority and inferiority” and that it is necessary to “understand how the remnants of these ideas continue to influence our society”.
  3. Encourage aboriginal and black Canadians to take a leadership role in identifying and solving the problems facing their communities.  There are various examples given by Owusu-Bempah, one being recent public action surrounding racial profiling and police “carding” practices which have become somewhat commonplace in certain Toronto neighbourhoods.

The ideas presented in the article seem quite simple, but also make a lot of sense.  Unfortunately the federal government seems to be more focused on new sentencing legislation, and often Crown Attorneys offices seem to be too focused on punishment, that we lose sight of what can be done to actually prevent crime in the long-term.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at

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