Agora Journal Volume 11, 2020
Over-Incarceration of Indigenous Peoples in Canada as Explored through the
Theory of Structural Racism
Sarah Orcutt
Winner of an Ahmadiyya Muslim Jama’at Scholarship
Winner of the Student Writer Award Silver Medal, Research Essay Category (3rd-4th Year)

In Canada today, overall rates of incarceration are decreasing; however, Indigenous
peoples in Canada are bucking this trend and suffering a disproportionate share of the
correctional population in the Canadian justice system. In Canada, the correctional population
includes those who are in custody, both federally and provincially, and those who are serving
supervised sentences in the community (Dauvergne, 2012; Malakieh, 2019). Furthermore, the
Canadian incarceration rate includes individuals who have been convicted of a crime and are
serving their sentences as well as individuals who are in remand or temporary detention
(Dauvergne, 2012). In 2010/2011 the number of adults in the Canadian correctional system was
down approximately 1% from the previous year and rates were down approximately 7% from the
previous decade (Dauvergne, 2012). The reduction in the rates of adults in the Canadian
correctional system was caused primarily by a 10% decrease in the rate of adults under
community supervision since 2000/2001; however, during this same time frame (2000/2001) the
number of adults in custody increased by 5% (Dauvergne, 2012, p. 4).
However, although overall incarceration rates are down, the incarceration rates of
Indigenous peoples in Canada are on the rise. In 2017/2018, Indigenous adults accounted for
29% of those admitted into federal custody and 30% of those admitted into provincial and
territorial custody even though Indigenous Canadians only represent 4% of the Canadian
population (Malakieh, 2019, p. 5). This represents a 9% increase federally and an 8% increase
provincially from the previous decade (Malakieh, 2019, p. 5). Additionally, the rates of
incarceration for Indigenous females rose considerably, i.e., 66%, between 2007/2008 and
2017/2018 provincially and territorially (Malakieh, 2019, p. 5). Indigenous youth are also
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overrepresented both in custody and in community supervised sentences representing 48% and
39% respectively in the reporting jurisdictions in 2017/2018 despite Indigenous youth
representing only approximately 8% of youth in Canada (Malakieh, 2019, p. 7). It is also worth
noting that although Manitoba and Saskatchewan had the largest Indigenous populations as a
share of the overall provincial population (15% and 14%), these provinces also had considerably
high numbers of Indigenous peoples in custody, with 75% of those in custody in Manitoba and
74% in Saskatchewan being identified as Indigenous in 2017/2018 (Malakieh, 2019, p. 5). When
considered together, this data paints an increasingly concerning picture of Indigenous
incarceration rates in Canada.
While overall incarceration in Canada is decreasing for both adults and youths, these
same figures for Indigenous Canadians remain disproportionately high and, in some cases, are
trending higher rather than falling (Malakieh, 2019; Dauvergne, 2012). The author of this paper
argues that institutional racism, as a manifestation of colonial ideologies, is responsible for the
ongoing and increasing over-representation of Indigenous peoples in the Canadian criminal
justice system.

Literature Review
Scholars and activists have expressed concern and speculated as to the potential causes
and contributing factors related to the stark over-representation of Indigenous Canadians in the
criminal justice system. One factor that has been identified as a possible contributing factor is the
lasting harm caused by the ‘Sixties Scoop’. Although the ‘Sixties Scoop’ was not a specific
policy, the term has come to represent an era in Canadian history in which Indigenous children
were apprehended by child welfare services in disproportionate numbers, without sufficient
cause, and most commonly adopted into non-Indigenous homes (Sinclair, 2007). Furthermore, it
has been observed that Indigenous children who are adopted into non-Indigenous homes have
suffered considerable hardship, including suicide, substance abuse, and incarceration (Sinclair,
2007, p. 71). Additionally, a 2005 report on the childhood experiences of Indigenous offenders
found that 63% of Indigenous offenders had either been adopted or placed in foster or group
homes during their lives (Trevethan et al., 2005). Some believe that the policing system in
Canada is biased against Indigenous peoples and other minorities. For instance, Fitzgerald and
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Carrington (2011) found that racially discriminatory policing explained disproportionate
minority contact with the police better than other explanations, such as the explanations that
minorities have different risk factors or higher levels of involvement in criminal activity. It has
also been shown that racialized identities negatively impact how the public perceives the
dangerousness of an offender, and perceived dangerousness was a strong predictor of how harsh
the public thought a sentence should be for an offender (Singh & Sprott, 2017). Also, concerning
policing, Cao (2014) found that Indigenous Canadians had lower confidence in the police than
the non-Indigenous population concerning every item analyzed from the survey data related to
policing. Low confidence in the police could be due to both contemporary and historical factors.
Contemporarily, Cao’s 2014 study found that the measure in which Indigenous respondents
negatively diverged most from their non-Indigenous counterparts was whether they felt the
police did a good job of treating people fairly. According to Jefferey Monaghan (2013), there is
also a historical backdrop in Canada of racialized surveillance of Indigenous peoples by the
government, which produced and perpetuated racialized stereotypes of Indigenous peoples that,
in turn, being used as a tool for managing the population. Similarly, Vicki Chartrand (2019)
notes that penitentiaries are a feature of colonization and have replaced formal assimilation and
segregation policies such as residential schools and confinement to reserves but that the colonial
relationship remains the same.
The over-incarceration of Indigenous peoples is not a phenomenon confined to Canada. It
has been observed that there are similar trends of Indigenous over-incarceration in other former
British colonies such as Australia and New Zealand (Roberts & Reid, 2017). This observation
further strengthens the argument that colonialism and neocolonialism is a significant factor in the
issue of Indigenous over-incarceration (Roberts & Reid, 2017). In analyzing the effect of overincarceration of Indigenous people, it is important not to lose sight of the severe and life-altering
impacts that incarceration and discrimination have on individuals. Jena McGill (2008) points to
the patterns of prejudiced, discriminatory, and abusive treatment that Indigenous women face in
the Canadian prison system, which has led to substantial physical and psychological harm, and in
tragic cases, death. Similarly, in Australia, Indigenous over-incarceration was directly related to
the high number of deaths of Indigenous people in custody (Cunneen, 2016). In Australia, the
analysis of 99 deaths of Indigenous Australians in custody by The Royal Commission into
Aboriginal Deaths in Custody found that Indigenous identity was a significant factor in an
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individual’s placement in custody as well as contributed to an increased likelihood of death while
in custody (Cunneen, 2016).

Theory of Structural Racism
This article is an exploration of the issue of Indigenous over-representation in the
Criminal Justice System through the lens of structural racism. This section will define structural
racism and other interrelated concepts. When discussing structural racism, it is important first to
understand racial categorizations and racial hierarchies. Racial categories were first formally
organized around the twentieth century when early anthropologists attempted to identify and
classify human beings into distinct biological categories based on physical characteristics
(Lavenda & Schultz, 2017). These racial categories were arranged into a hierarchy that placed
the theoretically most evolved races at the top and the least evolved races at the bottom of the
hierarchy. This hierarchal arrangement was used to justify the domination of those lesser evolved
races by the most evolved race at the top of the hierarchy (Lavenda & Schultz, 2017). These
hierarchies were characterized by prejudice, which is the feeling of superiority that was attached
to these racial categorizations (McMullin, 2009, p. 83). Discrimination occurs as a result of
prejudiced beliefs and are the actions that are related to or caused by prejudice (McMullin, 2009,
p. 83). These concepts of racial hierarchy, prejudice, and discrimination are important because
they were used as justification for colonial conquest and the subjection of colonized Indigenous
peoples in Canada and around the world. In the colonial context, the racial hierarchy was
arranged on a continuum of the most to least civilized races, and it was the responsibility of the
Europeans, who considered themselves the most biologically and socially advanced, to civilize
the other races such as the Indigenous peoples of North America (Reasons et al., 2016, p. 76).
Although race is now widely accepted academically as a social construct rather than a
biological one, race has become a real and accepted categorization in the minds of many, which
has tangible consequences in society (McMullin, 2009, pp. 66-68). The process of an abstract
concept becoming real, such as the concept of race, is referred to as reification (McMullin, 2009,
p. 66). One such consequence of the reification of race is the continuation of racially-based
hegemony. Hegemony is the domination of one group by another based on ideological consent
and political coercion. Ideological consent involves the acceptance of ideas about racial
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categories and the social organization that occurs based on those categories. Political coercion is
the official or organized enforcement of those categories. Finally, structural racism is the result
of racist ideologies, prejudice, and discrimination within social structures (McMullin, 2009, p.
76).
Structural racism is what Eduardo Bonilla-Silva referred to as the racialization of social
systems. In societies with racialized social systems, individuals are placed in racial categories
that determine their placement within a hierarchy (Eduardo Bonilla-Silva, 1997). This hierarchy
determines the social relations between races as well as the resources and social advantages and
disadvantages a racial group experiences (Bonilla-Silva, 1997). The social systems themselves
are racialized because they are, in part, structured by the placement of the actors into the racial
categories (Bonilla-Silva, 1997). A key component to Bonilla-Silva’s conceptualization of the
role of racism in society is that racism goes beyond the individual interactional level of society
(McMullin, 2009, pp. 76-77). In effect, this means that racism is not simply perpetuated by
single actors whose behaviours are informed by ideologies, instead there is an interrelationship
between individual actors and social structures with each informing the other.

Analysis of Over-Representation of Indigenous Peoples in the Criminal Justice System Using the
Theory of Structural Racism
As mentioned previously, there are those who have drawn connections between the overincarceration of Indigenous Canadians and the legacy of colonization. The position taken in this
paper is that colonialism provided the ideological framework for historical and contemporary
racism in Canada as well as the social structures that perpetuate those racist ideologies. For
instance, the Indian Act of 1876 is arguably one of Canada’s most definitive examples of
structural racism. This Act was intended to define who was an Indian, to civilize those who were
defined as Indians, and to manage the Indian population and their lands (Cora Voyageur as cited
in Monchalin, 2016, p. 109). It is evident in the intention of the Indian Act that there are
ideologies involving both racial categorization and racial hierarchies. In this context, Indigenous
Canadians are defined in a legal sense as per the Indian Act and are managed by European
colonizers who see themselves as more capable and, therefore, in charge of managing the
Indigenous peoples and their land. The characteristics of the Act are compatible with Bonilla5

Silva’s description of racialized social systems (1997, p. 469). The Indian Act also criminalized
the Indigenous lifestyle by outlawing cultural practices such as ceremonies, the donning of
regalia, and the freedom of movement without restriction (Monchalin, 2016, pp. 109-110). It can
be argued that this Act was fundamental to the future over-incarceration of Indigenous peoples
because the Act discriminatorily criminalized Indigenous people on the basis of their identities
while also contributing to a racialized criminal justice system.
The racialization of the criminal justice system has persisted to the present day. As
mentioned previously, in 2017/2018, Indigenous adults and youth were over-represented in the
criminal justice system in Canada (Malakieh, 2019). Importantly, the issue of Indigenous overincarceration is worsening while at the same time, the over-all adult incarceration rate is
declining (Malakieh, 2019). This issue can be explained in part by policies that are more likely to
affect Indigenous Canadians and lead to their incarceration. For example, tough-on-crime
policies that restrict community-based conditional sentences and require mandatory minimum
sentences can disproportionately affect Indigenous Canadians due to contemporary and historical
factors (Marshall, 2015). Substance abuse in Indigenous communities has been linked to both the
legacies of the residential school system and the ‘Sixties Scoop’ (Marshall, 2015; Sinclair 2007).
However, the tough-on-crime policies are also seen as anti-harm reduction and the subsequent
cancellation and cut to harm reduction programs remove much-needed resources while
simultaneously increasing the likelihood of drug-related incarceration (Marshall, 2015).
Furthermore, Canadians with racialized identities may be more likely to be stopped by
police due to a combination of factors including racial stereotypes concerning criminal
involvement, drug use, and violence (Marshall, 2015; McGill, 2008; Fitzgerald and Carrington,
2011). For example, The Aboriginal Justice Inquiry found that among complainants, there was a
perception that Indigenous peoples experience increased scrutiny by police while also being
subjected to stereotyping (Policing, para. 17). Racial stereotypes concerning Indigenous people
are connected to the colonial view of Indigenous peoples and the formation of racial categories
through racist racial projects. For example, the Indian Act prejudicially prohibited the selling of
liquor to an Indian or the possession of liquor by an Indian until 1930 and other restrictions
concerning possession of liquor or intoxication were not fully removed until 1970 (Monchalin,
2016, p. 116). These types of legal restrictions placed on Indigenous Canadians perpetuate racist
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racial projects through negative stereotypes while also confirming the racial hierarchy within a
racialized criminal justice system. Not only does racialization increases the chance of an
Indigenous person coming into contact with the police in Canada, but it may also affect how the
police treat those individuals. For instance, the infamous ‘starlight tours’ that led to the freezing
deaths of three Indigenous men in Saskatoon had garnered national attention and highlighted
discriminatory practice and police brutality against Indigenous peoples (Monchalin, 2016, pp.
261-262). The ‘starlight tours’ were the practice of police taking Indigenous individuals who
they had apprehended usually for the appearance of alcohol intoxication and driving them to the
outskirts of the city where they would be abandoned and left to find their own way back to the
city (Monchalin, 2016, pp. 261-262). This practice occurred during the winter, and as a result of
the discriminatory and negligent behaviour of the police three Indigenous men died on the
outskirts of the city of Saskatoon (Monchalin, 2016, pp. 261-262). The officers involved in these
cases were only charged with minor offences related to the deaths, or not charged at all
(Monchalin, 2016, p. 262). This example shows that there are different standards of behaviour
for those on different levels of the racial hierarchy, and these standards affect how individuals
are treated and their life chances.
Structural racism not only affects the likelihood of Indigenous peoples coming into
contact with the police and, therefore, their rates of incarceration, but it also affects how people
are treated at the individual level once they are incarcerated. Once in the criminal justice system,
Indigenous prisoners are less likely to be granted full parole. If they are granted some form of
parole or release, it usually occurs later in their sentence than their non-Indigenous counterparts
(Chartrand, 2019, p. 70). This type of discrimination within the system acts to bolster the racial
hierarchy not just between Indigenous inmates and the administrators of the system but also
between the Indigenous and non-Indigenous inmates.

Summary and Conclusion
Colonialism was not a point in time or a political campaign which has since ceased to
exist, as Patrick Wolfe described it, “invasion is a structure, not an event” (as cited in Chartrand,
2019, p. 70). Although the Canadian government is working to make amends for the wrongs of
its colonial past, such as with the creation of the Truth and Reconciliation Commission, the
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original ideologies and frameworks created and employed during colonization are still present in
Canadian society today. The language and policies of society may have evolved over time, but
the ideologies have remained the same, and the racial hierarchy has remained intact. Although
the Indian Act no longer prohibits Indigenous cultural ceremonies or makes it illegal for an
Indigenous adult to be in possession of alcohol, the racialization of social systems remains.
Instead of criminalizing the Indigenous lifestyle as a means of controlling and assimilating the
Indigenous population, the ideologically-driven goals of colonization are now reached by more
covert measures. Structural racism still exists, it is just more difficult to see but the effects are
similar. Prejudicial beliefs are still integral to the policies of the criminal justice system and the
actions of those who inhabit the system. These attitudes result in various discriminatory
behaviours such as over-policing of minorities, the abuse of Indigenous peoples by the police
and correctional services staff, and the discriminatory prison terms and differential treatment
concerning release from prison (Fitzgerald & Carrington, 2011; Monchalin, 2016; McGill, 2008;
Chartrand, 2019).

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References
Bonilla-Silva, E. (1997). Rethinking Racism: Toward a Structural Interpretation. American
Sociological Review, 62(3), 465-480. Retrieved from
http://ezproxy.ardc.talonline.ca/login?url=https://search.ebscohost.com/login.aspx?direct
=true&db=edsjsr&AN=edsjsr.2657316&site=eds-live
Cao, L. (2014). Aboriginal People and Confidence in the Police. University of Toronto Press
56(5), 499–525. Retrieved from
http://ezproxy.ardc.talonline.ca/login?url=https://search.ebscohost.com/login.aspx?direct
=true&db=edspmu&AN=edspmu.S1911021914500009&site=eds-live
Chartrand, V. (2019). Unsettled Times: Indigenous Incarceration and the Links between
Colonialism and the Penitentiary in Canada. Canadian Journal of Criminology and
Criminal Justice, 61(3), 67–89. Retrieved from http://muse.jhu.edu/article/730512
Cunneen, C. (2006). Aboriginal Deaths in Custody: A Continuing Systematic Abuse. Social
Justice, 33(4 (106)), 37–51. Retrieved from https://www.jstor.org/stable/29768399
Dauvergne, M. (2012). Adult correctional statistics in Canada, 2010/2011. Juristat: Canadian
Centre for Justice Statistics; Ottawa. Retrieved from
http://search.proquest.com/docview/1183752665/abstract/F4706D49F7134FDCPQ/1
Fitzgerald, R. T., & Carrington, P. J. (2011). Disproportionate Minority Contact in Canada:
Police and Visible Minority Youth. Canadian Journal of Criminology & Criminal
Justice, 53(4), 449–486. Retrieved from https://doi.org/10.3138/cjccj.53.4.449
Lavenda, R. H., & Shultz, E. A. (2017). Core Concepts in Cultural Anthropology 6th ed. New
York: Oxford University Press.
Malakieh, J. (2019). Adult and youth correctional statistics in Canada, 2017/2018. Government
of Canada, S. C. Retrieved from https://www150.statcan.gc.ca/n1/pub/85-002x/2019001/article/00010-eng.htm
Marshall, S. G. (2015). Canadian Drug Policy and the Reproduction of Indigenous Inequities.
International Indigenous Policy Journal, 6(1). Retrieved from

9

https://doi.org/10.18584/iipj.2015.6.1.7
McGill, J. (2008). An Institutional Suicide Machine: Discrimination against Federally Sentenced
Aboriginal Women in Canada. Race/Ethnicity: Multidisciplinary Global Contexts, 2(1),
89–119.
McMullin, J. (2009). Understanding Social Inequality: Intersections of Class, Age, Ethnicity,
and Race in Canada (2nd ed). Don Mills, Ontario: Oxford University Press.
Monaghan, J. (2013). Settler Governmentality and Racializing Surveillance in Canada’s NorthWest. Canadian Journal of Sociology, 38(4), 487-508. Retrieved from
http://ezproxy.ardc.talonline.ca/login?url=https://search.ebscohost.com/login.aspx?direct
=true&db=edsjsr&AN=edsjsr.canajsocicahican.38.4.487&site=eds-live
Monchalin, L. (2016). The Colonial Problem: An Indigenous Perspective on Crime and Justice in
Canada. North York, Ontario: University of Toronto Press.
Policing, (1999). In Report of the Aboriginal Justice Inquiry of Manitoba (Volume I, Chapter
16). Retrieved from http://www.ajic.mb.ca/volumel/chapter16.html#5
Reasons, C., Hassan, S., Ma, M., Monchalin, L., Bige, M., Paras, C., & Arora, S. (2016). Race
and Criminal Justice in Canada. International Journal of Criminal Justice Sciences,
11(2), 75–99. Retrieved from
http://ezproxy.ardc.talonline.ca/login?url=https://search.ebscohost.com/login.aspx?direct
=true&db=sih&AN=121344613
Roberts, J. & Reid, A. (2017). Aboriginal Incarceration in Canada since 1978: Every Picture
Tells the Same Story. Canadian Journal of Criminology and Criminal Justice 3(59): 313345. Retrieved from https://muse-jhu-edu.ezproxy.lib.ucalgary.ca/article/663833/pdf
Sinclair, R. (2007). Identity lost and found: Lessons from the sixties scoop. First Peoples Child
& Family Review, 3(1), 65–82. Retrieved from
http://ezproxy.ardc.talonline.ca/login?url=https://search.ebscohost.com/login.aspx?direct
=true&db=sih&AN=23712159&site=eds-live
Singh, A.-M., & Sprott, J. B. (2017). Race Matters: Public Views on Sentencing. Canadian
Journal of Criminology & Criminal Justice, 59(3), 285–312. Retrieved from
10

https://doi.org/10.3138/cjccj.2016.E26
Social Structure. (2015). In K. Bell (Ed.), Open education sociology dictionary. Retrieved
from https://sociologydictionary.org/structure/
Trevethan, S., Moore, J.-P., Auger, S., MacDonald, M., & Sinclair, J. (2007). Childhood
experiences affect Aboriginal offenders [pdf]. Retrieved from https://www.cscscc.gc.ca/publications/forum/e143/143c_e.pdf

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