Indigenous Peoples Are Sentenced More Harshly In Canada
According to Alberton et al. (2021), Indigenous peoples were 35% more likely to be recommended for maximum security compared to non-indigenous peoples. Alberton et al. clarify that despite this longstanding recognition, the problem not only persists but continues to get worse.
What is Systemic Racism?
Monchalin (2016) describes Systemic Racism as laws and standards that are found in our social system which result in an unequal distribution of economic, political, and social resources among various racial groups. In short, Monchalin adds that systemic racism rejects the idea of certain racial groups having equity.
Historically, Indigenous peoples were colonized and treated as inferior to the settlers. Laws, such as the "Indian Act of 1876," were put in place to ensure that Indigenous peoples did not have the ability to live their traditional life (Monchalin, 2016).
Monchalin explains that currently Indigenous peoples still struggle from the consequences of these laws. These struggles do not stop at substance abuse or poverty, they follow them into our Justice System where they are continuing to be marginalized and systemically brought down.
Finding Systemic Racism in Sentencing
Alberton et al. (2021) states that for individuals above the age of eighteen, the Criminal Code of Canada (s.718.2) sets the fundamental purpose for sentencing. This purpose is concentrated on the maintenance of a safe, peaceful, and just society by imposing just sanctions (Criminal Code of Canada, s718.2 as cited in Alberton et al, 2021). For youth offenders, section 38 of the Youth Criminal Justice Act states that the purpose is to hold the young person accountable through impositions of sanctions, which are meaningful consequences that promote rehabilitation (Alberton et al., 2021).
Alberton et al. (2021) explains that racism have and continue to play an important role in the Canadian legal system. According to researchers, for decades it has been acknowledged that there is serious bias in the criminal sentencing process. This bias creates systemic racism that ultimately leads to numerous unjust sentences against Indigenous peoples.
Numbers Don't Lie
The following are statistics found that demonstrate the shocking truth of systemic racism in Canada's sentencing system.
Executions from 1926 to 1957, Indigenous females were sentenced to death and executed at a rate almost three times that of non Indigenous women (66.5% vs 25%) for similar crimes.
(Avio, 1987 as cited in Alberton et al., 2021).
Executions from 1926 to 1957, Indigenous men were sentenced to death and executed at a rate of 97.5%, versus 85% for similar crimes.
(Avio, 1987 as cited in Alberton et al., 2021).
From 2008-2010, Indigenous women were almost three times as likely as non-Indigenous women to recieve an indeterminant prison sentence.
(Gobeil, 2015 as cited in Alberton et al., 2021).
Indigenous peoples were 35% more likely to be recommended for maximum security.
(Moore, 2003 as cited in Alberton et al., 2021).
Overall, Indigenous youth are more likely to receive a sanction over sixty days or longer than non-Indigienous youth (60% vs. 43%)
(Alberton et al., 2021)
Despite only representing 4% of Canadian population, as of January 2020, 23% of individuals in federal correctional facilities were Indigenous
(Statistics Canada, 2025)
Indigenous youth only represent 8% of Canadian youth population, yet represent 43% of youths admited to correctional services
(McConnell, 2020)
Table 1: Number of Indigenous accused and white accused in adult criminal courts by select sociodemograpic charecteristics, Canada, 2016/2017 to 2020/2021. (Statistics Canada, 2025)
Legal Precedents that Shape Indigenous Sentencing
According to Jeffries and Stenning (2014), In 1999 and 200, the matter of interpreting section 718.2(e) of the Criminal Code Canada for Indigenous peoples came to the Supreme Court of Canada in the cases of R v. Gladue and R v. Wells. The decision of these cases provided the first legal basis for sentencing Indigenous offenders in Canada. This was coined as the "Gladue Principles," the nine principles can be summarized as (Jeffries & Stenning, 2014);
1. Systematic discrimination/bias results in over-incarceration of Aboriginal offenders and systemic background factors, for example poverty.
2. Section 718.2(e) is a remedial provision designed to address the over-incarceration of Indigenous offenders.
3. Section 718.2(e) requires judges to use a different sentencing approach for Indigenous offenders, though this does not necessarily change the final outcome.
4. Indigenous offenders face unique circumstances compared to non-Indigenous offenders.
5. When sentencing Indigenous offenders, judges must consider both the systemic and background factors. Indigenous legal traditions emphasize restorative justice, judges must uphold this.
6. Section 718.2(e) does not mean Indigenous offenders must always be sentenced in a matter that gives greatest weight to restorative justice. Deterence and denunciation might have to be applied.
7. The application of section 718.2(e) does not result in automatically reduced sentences for Indigenous offenders.
8. Violent and serious offences will still result in imprisonment for Indigenous offenders.
9. Section 718.2(e) applies to Indigenous peoples in general, not just those who live in Indigenous communities.
As Jeffries and Stenning states, this legal basis lasted for a decade until a controversial case came before the Supreme Court of Canada, concerning the proper use of the Gladue principles. Ipeelee v. The Queen (2012) lead to the reaffirmation from Supreme Court of Canada Justices that the Gladue principles must be used in any case involving an Indigenous offender, regardless of the seriousness of the crime (Jeffries & Stenning, 2014).
Call To Action: Toward Fair Sentencing for Indigenous Peoples
Systemic racism has long overstayed it's welcome in our Canadian Justice System. This call to action requires individuals like you, students, to create public awareness that can be the starting point for change.
YOU CAN HELP!
Educate Yourself
Learn the shocking history of Indigenous peoples, and understand how the systemic racism continues to be prominent in Canada. Not only in sentencing, but in the entire Justice System.
Share The Information
Share websites online to spread awareness. discuss with peers to ensure the people in your circle are aware of the faults of our system.
Support Indigenous-Led Justice Organizations
By going to meetings, signing petitions, or donating. Some examples are Assembly of First Nations, or Native Women's Association of Canada.
Contact you MP or MLA
After educating yourself and creating awareness, contact the people that can make a change. Motivate your peers to contact them as well!
References
Alberton, A., Gorey, K., Angell, B., & McCue, H. (2021). Structural violence perpetrated against Indigenous peoples in Canadian Criminal Courts: Meta-Analytic Evidence of Longstanding Sentencing Inequities. Critical Social Work, 2–4. https://ojs.scholarsportal.info/windsor/index.php/csw
Jeffries, S., & Stenning, P. (2014). Sentencing Aboriginal Offenders: law, policy, and practice in three countries [Article]. Canadian Journal of Criminology and Criminal Justice, 56(4), 447–494. https://muse.jhu.edu/article/550111
McConnell, G. (2020). Indigenous people and sentencing in Canada. https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/202046E#a1-1-1
Monchalin, L. (2016). The Colonial Problem: An Indigenous perspective on crime and injustice in Canada. University of Toronto Press
Statistics Canada. (2025). Disparities in decision and sentencing outcomes between Indigenous accused and White accused in adult criminal court, 2016/2017 to 2020/2021. https://www150.statcan.gc.ca/n1/pub/85-002-x/2025001/article/00001-eng.htm
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