over representation statistics

Udgivet den:11 januar 2021
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Five aspects will be addressed: first, changes to the Criminal Code regarding sentencing introduced by the Government of Canada and subsequently elaborated upon by the Supreme Court of Canada; second, the establishment of Gladue Courts; third, issues of bail and remand; fourth, a review of Gladue case law; and fifth, community initiatives and government relations with regard to addressing Indigenous justice issues. Further, it became apparent that many defence counsel were not aware of the availability and the importance of culturally appropriate diversion programs. Bail remand, and pre-trial detention have been particularly serious issues requiring attention, as noted in section 4.3.2, above. Admission rates for Aboriginal and Torres Strait Islander children have increased from 13 to 15 per 1,000 children between 2011–12 and 2015–16. We used a separate calculation (described further in Appendix A ) to determine the threshold at which the data represents either disproportionately high or disproportionately low incidences of admissions into care. Bail is not guaranteed, but it is a real possibility for those who qualify by the standards set by the court. It was again renewed in 2012, 2013, and 2014. The concept of culture clash suggests that Indigenous worldviews and approaches to justice are often significantly different from the principles and methods of the mainstream system. Similarly, Aboriginal youth continue to be involved in the corrections system at disproportionate and increasing rates. The authors of the evaluation admit the recidivism study had methodological limitations; however, for present purposes we can accept the study’s general findings. The Tsuu T’ina First Nation Court in Alberta is a good example. As Maurutto and Hannah-Moffat state, Incarceration statistics and relevant case law appear to confirm the statements made by Maurutto and Hannah-Moffat. In turn, this decreases a judge’s ability to hand down a non-incarceration sentence appropriate to the individual offender, thereby failing to follow the Supreme Court of Canada’s ruling in Gladue. This appears to be changing in the Toronto area thanks to the efforts at increasing awareness by the judges at the Aboriginal Youth Court, the Old City Hall Gladue Court, and Aboriginal Legal Services. However, for such claims to be valid, it is essential for funding bodies and their affiliates, such as the RCMP, to take very seriously the proposals developed by communities and community-based groups (Clark, 2007). Hopefully, the 2019 federal budget, which included substantial funding for Indigenous programs, will have positive effects. As the Supreme Court stated in Ipeelee. Judges may not be aware they can be influenced by the fact of pre-trial detention (assumes a greater risk of some form) and subsequently assume the offender deserves further prison time at sentencing. This product presents information from the Census of Population focusing on the Aboriginal identity population of various geographic areas. However, there is a slight over-representation of visible minority offenders serving time in the community on some form of conditional release. The sentence, which involved incarceration and probation, was appealed on the grounds the trial judge had not adequately considered the circumstances and heritage of the offender as an Indigenous person according to s. 718.2(e). It is not a probationary sentence, but a jail sentence of less than two years to be served in the community under certain conditions set by a judge. (Department of Justice Canada, 2018b). The estimate comes from The Australian Centre of Disability Law and is one of a number of concerning statistics highlighting an over-representation of people with a disability in the justice system. Thus, bail may be less likely to be granted to an Indigenous accused than to his/her non-Indigenous counterpart. Consequently, according to the Manitoba Commissioners, pre-trial detention is more frequent for Indigenous accused. The underlying social issues that result in the over-representation of Indigenous and Black children in care are multi-faceted and need a multi-pronged approach. In Ipeelee, the Court reaffirmed the importance of Gladue and confirmed that it applies in all contexts, including when sentencing a long-term Indigenous offender for breach of a Long-Term Supervision Order. Gladue Reports are not being requested in many cases and pre-sentence reports (PSRs) are used to fill the gap in knowledge of the individual offender. Pre-trial detention is an obstacle to applying s.718(2)(e) and R. v. Gladue because imprisonment occurs before the judge can fulfill her role of considering the unique circumstances of Aboriginal offenders” (2003: 11-12; 2009). They accept referrals of Indigenous individuals who have pled guilty and take on most bail and sentencing hearings. It remains a concern in other parts of Ontario and in other provinces and territories. Second, there continue to be gaps in successfully addressing fundamental social and economic factors underlying Indigenous overrepresentation in the criminal justice system. On the other hand, while the frequency of judges referencing Gladue increased from 2000 and 2010 to 2018, there were still many cases where Gladue received only a cursory mention. Their concern is that judges might choose to apply conditional sentences as an alternative to imprisonment in instances when a less serious sanction might have been ordered prior to the arrival of s. 718.2(e) and Gladue. Have the policies represented by the Criminal Code amendment in the form of s. 718.2(e) and the subsequent Supreme Court judgment in Gladue had their intended effects? The five-year program was administered by the Department of Justice Canada, although it was established as a cost-sharing program with provincial and territorial governments. It is essentially replicated in the final report on the Evaluation of the AJS 2016: Yet why are rates of Indigenous overrepresentation continuing to rise in spite of the work of the AJS/IJP, provinces and territories, legislators (s. 718.2(e)), and the Supreme Court (Gladue and Ipeelee)? Lack of success in these areas and others continues to be a major impediment to solving the problem of overrepresentation. Finally, and most importantly, the seriousness of the problem has been clearly expressed by the many Indigenous individuals, organizations and leaders who shared their views and experiences with the inquiries noted above and who intervened in Supreme Court cases such as Gladue. Footnote 22 As Roach and Rudin explain. The number of Gladue Courts is steadily increasing across Canada. Rudin points out that “[a]s with much legislation, the actual meaning of s. 718.2(e) remained somewhat vague until the Supreme Court of Canada released its decision interpreting the section in 1999 in the case of R. v. Gladue” (2007: 42). The final report of the summative evaluation of the AJS dedicates the following paragraph to conclusions on this question: “To what extent have community-based programs had an impact on crime rates in the communities where they are implemented?” The conclusion reads as follows: This finding is encouraging. Certainly, the scale of the problem of Indigenous over-incarceration was recognized and the relevant motivation was present. It is important to remember that community-based approaches that involve the court, such as circle sentencing, are not appropriate in all cases. 3.21The over-representation of Aboriginal and Torres Strait Islander people in prison has increased fr… The Court also recognized the roles played by poverty, marginalization, and systemic discrimination in the overrepresentation of Indigenous people. Those who favour granting bail, if reasonable, tend to agree that Gladue should apply to all Indigenous offenders because incarceration, whether as part of a sentence or pre-trial, is still incarceration and contradicts Gladue. In so doing, Justice Cohen was applying Section 38(2)(d) of the Youth Criminal Justice Act (YCJA), which states: Section 38(2)(d) of the YCJA corresponds directly to s. 718.2(e) of the Criminal Code and is expressly designed to lower the high incarceration rate among Indigenous youth. The cases ranged in severity and included drug trafficking, driving while under the influence, firearms trafficking, robbery, armed robbery, assault, aggravated assault, sexual interference, sexual assault, manslaughter, second degree murder, and first degree murder. As Rudin says, “[t]he importance of release on remand cannot be stressed [enough]” (Rudin, 2007: 53). This, as noted in section 4.1.2, above, is a form of systemic discrimination for Indigenous accused. Sentencing circles and healing circles are supported in other regions. Further, the community – not a researcher or government– is best able to identify its needs, aspirations, and appropriate approaches to addressing problems. They are subjective in the sense that the information required by the decision-maker contains a bias that often works against the accused Indigenous person. The first was at Old City Hall in Toronto in 2001 and others have followed. In British Columbia there are four First Nations (Gladue) Courts with more on the way. Under-policing and over-policing are really two sides of the same coin. The second question refers primarily to whether the accused would be likely or unlikely to adhere to bail conditions and to return to court on their hearing date. ALS Gladue writers provide report writing services to at least twenty Ontario courts upon request. This is a critical point for many reasons. The Aboriginal Youth Court hears cases in a more relaxed atmosphere than regular youth court and diverts youth to culturally relevant programs in Toronto, particularly to the Community Council Project at Aboriginal Legal Services.Footnote 27 The court monitors the youth’s progress in diversion programming and the result is typically the withdrawal of charges. A representative sample is used in statistical analysis and is a subset of a population that reflects the characteristics of the entire population. The Indigenous Liaison Program serves as a bridge between Statistics Canada and First Nations, Métis and Inuit communities and Indigenous organizations. The incarceration rate for Indigenous offenders has continued to rise since the Gladue decision in 1999. Pre-trial detention is almost inevitably the result in many courts. Australian crime: … Since 1989, eleven Royal Commissions or Commissions of Inquiry have addressed the issue of Indigenous justice either directly or as one among many questions regarding Indigenous people in Canada. In the Toronto Gladue Court as in some other Gladue Courts, however, every effort is made to accommodate individuals who cannot cover bail or provide a surety by assessing the individual’s risk and by developing a pre-trial release plan. The Supreme Court noted two errors being made regularly by the lower courts when sentencing Indigenous offenders. Is this approach effective? The Toronto Bail Program agreed to adapt its guidelines so that Indigenous persons without a surety, including those with histories of failing to appear in court, can be considered for supervision. Despite the research and policy recommendations resulting from these inquiries, academia, and other sources, the problem of Indigenous overrepresentation continues and, in some ways, continues to worsen. Black people are over-represented across different parts of the justice system. 3.20Figure 3.3 below shows that the imprisonment rate for Aboriginal and Torres Strait Islander people has increased 41% over 10 years, from 1,438 per 100,000 in 2006 to 2,039 per 100,000 persons in 2016. In the case of the Gladue ruling, this is precisely what happened in Toronto on the initiative of the Ontario Court of Justice, as described later in this report. Research output: Contribution to journal › Journal article › Research › peer-review It appears that a Gladue Report was neither requested nor provided in this case. Rudin notes that the court stated that s. 718.2(e) did not automatically mean an Indigenous person would receive a lesser sentence, and said further that when convicted for a serious violent offence, an Indigenous person would likely receive the same sentence as a non-Indigenous offender.Footnote 20 As Rudin points out, “[i]n the subsequent case of R. v. Wells – a conditional sentencing case – the court continued to send some mixed messages as to the impact of s. 718.2(e) in cases of violence” (Rudin, 2007: 43). A common aim of the approaches discussed in the following sections has been to reduce the overrepresentation of Indigenous people in the criminal justice system, particularly in custodial facilities. Female representation on IOC commissions has also risen to 45.5 per cent, a historic high that equates to a 124% per cent increase since 2013. A value greater than 1.0 indicates over-representation; a value equal to 1.0 represents proportionality; and a value less than 1.0 indicates under-representation. In fact, according to the Court, “statistics indicate that the overrepresentation and alienation of Aboriginal peoples in the criminal justice system has only worsened”. It demonstrated that judges in 2018 were more aware of Gladue principles and the significance of their application than they were in 2010 and, especially, in 2000. In addition to courts specifically established to apply Gladue principles, certain other specialized courts also operate effectively. Similarly, Yukon and the Northwest Territories have established Wellness Courts, designed to provide rehabilitative support for offenders with issues of mental health, addiction or cognitive impairment (see Hornick, Kluz and Bertrand, 2011). Second, the absence of a Gladue Report, written by a trained Gladue writer, denies a judge the opportunity to fully understand the individual offender’s background and the life factors that led them to commit a crime. In the Aboriginal Youth Court, this responsibility is taken on more directly by the Crown prosecutor, with the judge’s approval. This is especially concerning in light of the fact that Indigenous offenders, especially in the western provinces, are disproportionately likely to breach their conditions. Section 718.2 reads: “A court that imposes a sentence shall also take into consideration the following principles: (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders” (emphasis added). The judge therefore concluded that Ms. Gladue was not subject to s. 718.2(e) whereby all reasonable and available sanctions other than imprisonment should be considered for all offenders, especially Indigenous offenders. The court is welcoming and takes the time necessary to ensure the youth and everyone else around the table are heard and that the youth is diverted to culturally relevant programming. An analysis undertaken for this report involved a limited review of case law in which the court referenced Gladue in sentencing. For example, the following formed part of a judge’s ruling in a bail application in the Provincial Court of Saskatchewan (R. v. Heathen, 2018 SKPC 29): Nonetheless, as Justice Knazan says, “[a]ll the same, the Toronto Gladue Court addresses the particular circumstances of Aboriginal offenders at the bail hearing as an important part of considering ‘all available sanctions other than imprisonment that are reasonable in the circumstances’ as s.718(2)(e) requires” (2003: 11). According to Roach and Rudin. What is the difference between "statistical overrepresentation test" and "statistical enrichment test" in PANTHER GO enrichment analysis tools? In proposing this legislation, the government recognized that the rate of sentencing involving custody for Indigenous people was unacceptable and action was needed. This part includes new data on Aboriginal and Torres Strait Islander children’s entry into OOHC. An evaluation of the Aboriginal Youth Court concluded the court was achieving positive results with respect to several measures, including re-offending (Clark, 2016a). For instance, if the population of interest consists of 75% females, and 25% males, and the sample consists of 40% females and 60% males, females are under represented while males are overrepresented. Walker ... Offenders, Statistics, Courts, Corrections, Trends, Criminal justice system, Comparisons, Victims. This presents a challenge for many Canadian courts as restorative programs, especially those designed for Indigenous people, are still lacking in much of the country. The use of a conditional sentence is more serious than commonly understood. For example, information regarding education, employment, income, and permanent residency, which is typically sought from the accused, generally favours non-Indigenous individuals who are significantly more likely than Indigenous accused to have completed a certain level of education, have a job, earn a steady income, and have a permanent residence where the alleged offence was committed. Dickson-Gilmore and La Prairie (2005) raise questions about how funding agencies have, in the past, at least, employed “top-down” approaches to defining community and community needs that often do not serve the interests of the community itself. As the first example, I have witnessed occasions where a long-standing and effective Community Justice Committee has been shut out of the business of rehabilitating young offenders simply because a newly arrived RCMP Detachment Commander did not agree with the concept of restorative justice and therefore would not divert pre-charge cases to the local committee (although restorative justice was claimed to be a fundamental aspect of RCMP policy). In comparison, the rates for non-Indigenous c… The case law review material was provided by the Research and Statistics Division, Department of Justice Canada. From 2006 to 2016, the number of Indigenous people living in a centre of this size increased by 59.7 percent (Statistics Canada 2017a). Following the lack of clarity expressed by the Supreme Court in Gladue, the ruling in a more recent case was intended to rectify the situation (R. v. Ipeelee, 2012 SCC 13). Resources Community Project, 1998: 3 quoted in Dickson-Gilmore and La Prairie, 2005: 8). Judges who assume the negative position are often concerned primarily with public security and the perceived need to keep the offender in pre-trial detention. Again, such problems can be explained by systemic discrimination in the criminal justice system. In fact, as the case law material used in this report demonstrates, many judges remain unconvinced of the applicability of Gladue to bail applications. As we noted earlier, Aboriginal people constitute approximately 12% of the Manitoba population. The imposition of a conditional sentence by a judge is restricted in several ways, including the fact that the period of imprisonment is less than two years, that the offender has not been convicted of a serious personal injury offence, and that the judge is satisfied the offender would not threaten community safety if a conditional sentence were imposed. While there have been positive changes in judicial approaches between 2000 and 2018, it appears that Gladue principles are still not being applied universally in sentencing or in bail decisions. Adequate resources must accompany positive policies and consultations with Indigenous communities and organizations must be open and in-depth. In fact, a true Gladue Court is characterized by certain specific factors relevant to the intent of s. 718.2(e) and the Supreme Court decision in Gladue. Government and judicial support for the concept of alternatives to incarceration – community-based justice – was strongly indicated. These data describe and measure the flow of persons through correctional services over time. The Cree-speaking Gladue Court based in Prince Albert, Saskatchewan is run by Cree justice professionals, including Cree judges and Crown prosecutors. The assumption behind an over-representation statistics is that functional TFBSs will be over-represented in the set of co-regulated genes as compared to a background set (by the term co-regulated we refer to a set of genes hypothesized to be co-regulated either based on expression data or some other information). While the focus of the review was on Gladue citations, in some cases other rulings, such as Ipeelee, were also brought to bear on sentencing.Footnote 28, The case law review indicated certain trends. The IJP supports Indigenous community-based justice programs that offer alternatives to mainstream justice processes in appropriate circumstances. Justice Knazan of the Ontario Court of Justice (2003) points to the recognition by those working in the criminal courts that once an individual has been denied bail and imprisoned for a pre-trial period, the likelihood is higher that they will also receive a custodial sanction at sentencing. 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