Guilty pleas among Indigenous people in Canada

Findings

The findings are presented in four sections: 1) Why Indigenous people plead guilty; 2) How pleading guilty affects Indigenous people; 3) Justice system supports; and 4) Research and data gaps.

While this research focuses on Indigenous people, other accused or marginalized groups may share similar experiences.

Why Indigenous people plead guilty

Participants identified several factors related to guilty pleas among Indigenous people: 1) Understanding and experience; 2) To get it over with; 3) Bail and remand; 4) Plea bargaining and legal representation; 5) Culture and community; and 6) Social vulnerabilities.

There was a general sense among participants that Indigenous people sometimes plead guilty even if they are innocent (or “innocent to a degree”), have a valid defence, or have grounds to raise Charter issues. Despite lawyers and judges conducting a plea inquiry to confirm that the accused understands and is not merely pleading guilty to get it over with, there were reports that Indigenous people plead guilty because of disadvantages in the justice system, social vulnerabilities, and a cultural sense of responsibility. A participant captured this sentiment by noting,

Wrongful convictions happen every day in court when people plead guilty to things they didn’t do because they’re denied bail or their sense of responsibility is different from criminal responsibility and people are pleading guilty because they feel responsible for something even though they might not in fact be criminally responsible.

Understanding and experience

There was a general sense among participants that most accused have a limited understanding of the justice system and that it depends on previous contact with the system. First-time accused may be “lost if they haven’t been to court.” Complicated court “lingo” (i.e., legal jargon) presents a language barrier for many accused (e.g., section 334, surety, summons, bail hearing, forfeiture of bail). Even justice system professionals can find court orders difficult to understand.

In general, participants described greater challenges for Indigenous accused understanding the justice system. A participant explained,

When I look at individuals coming into court, anybody new, just the average person off the street, they don’t understand the system. It’s not particular to Indigenous, it’s a very difficult system to understand. Adding to that, individuals living in more of a sheltered environment, on the First Nation, language, understanding their worldview compared to the system’s worldview, and when those two clash, there’s little understanding from both sides, from the individual who may have committed something and the justice system understanding where that individual is coming from.

Participants identified Indigenous language barriers, especially in the North and among older generations. Some legal concepts, including the word ‘guilty,’ do not translate directly into Indigenous languages. Participants described Indigenous clients not understanding their criminal charges, legal rights, the role of their lawyer (e.g., lawyer speaks on their behalf), requirements to attend court and follow conditions, and the implications of a criminal record. A participant noted that many Indigenous youth do not understand that an impaired driving charge is more serious than a traffic ticket.

Another participant explained that Indigenous people understand the system, but understand it differently based on their experience and the experience of their peers and parents. The participant described a client with a long criminal record who never had a bail hearing or trial and always consented to his detention, he always pled guilty based on the advice he received. He “understood the system as it worked for him, but he might not understand the theoretical system as one that in theory gives you all these rights.”

Participants described accused who plead guilty because they already have a criminal record, “the damage is already done.” A participant explained, “The first time really gets them in trouble with employment.” With repeated contact with the justice system, accused have less hope in being acquitted regardless of their culpability. Participants described other cases where accused with a criminal record want to fight the charges because they are facing a serious sentence or “know how to play the system” and “set for trial on the basis that the witness won’t show up and they’ll get off.”

To get it over with

Pleading guilty “to get it over with” was described as common. Accused “just want to deal with it and not have to go back to court.” Participants described clients frustrated with court delays and adjournments who plead guilty without obtaining legal representation or reviewing the disclosure. They “might say ‘yes, ma’am, yes, sir’ [to the judge or justice of the peace] even if they don’t understand what’s happening in court because they’re scared and just want to get out,” because “it’s easier to say ‘yep, yep’ and nod their heads instead of saying ‘I don’t understand what you’re asking me.’” A participant explained,

Sometimes they’ll plead guilty just to get it over with because they’re standing in a courtroom that makes them very uncomfortable, very nervous, creates a lot of stress within them, and they just want to run out of there, but the fastest way out is to plead guilty and agree to everything that’s said to you. Think of yourself whenever you’ve been in a very uncomfortable situation and your fight or flight response.

Participants described a distrust in the justice system given Indigenous people’s history with residential schools and discriminatory laws. A participant explained that until the 1950s, it was illegal for Indigenous people to hire a lawyer, and now some Indigenous people believe their lawyer works for the government or the police. A participant described,

Because of the historical treatment of Indigenous people, perceiving that this is just going to continue, people just want to get it over with. People feel like it’s just part of growing up… discrimination at the police level, Crowns, judges, JPs, even lawyers. They feel like the odds are stacked against them, so what’s the point.

Indigenous people in remote communities may face added pressure to plead guilty because of court delays and transportation issues. A participant explained,

Sometimes court can take four to five times before it’s resolved. A lot of people live an hour or [more] away….and it’s costing them forty dollars each way [by taxi], and they only receive a hundred and eighty dollars every two weeks. [Accused thinks] “If I plead guilty today, what are the chances I won’t have to come back?” Or “what would I get, probation?” They just want to get it over with, go on their probation, and never go back.

Bail and remand

The denial of bail was described as a key factor for Indigenous people pleading guilty: “Once denied bail, pleading guilty becomes a rational decision.” A participant explained, “You’re supposed to be innocent until proven guilty. In remand, you have to prove you’re innocent.” Remand was described as time “in limbo” without programming and “a tool to accelerate time and a half” where the accused receives a sentence discount for time served (e.g., 1.5 days custody credit for each day in remand). This sentence discount attempts to compensate for the difficult conditions in remand (e.g., overcrowding, no access to treatment or rehabilitation).

Participants described bail conditions as “onerous,” “unreasonable,” “unrealistic,” and “setting accused up to fail.” Examples include no contact, stay away from family/community, and abstain from alcohol. A participant explained, “It’s quite common to see abstinence as a condition or non-possession [for an accused with a substance abuse problem], a condition that criminalizes their addiction.”

Participants described how court delays and bail conditions contribute to guilty pleas. For example,

If someone is charged in January, their court date might not be until March, then maybe set over until May. If they haven’t spoken to a lawyer and they’re waiting, held in remand, or out on conditions. Conditions may stipulate the person can’t drink, so the person thinks if I don’t plead out today, I can’t drink.

Again, the pressure to plead guilty may be especially significant in northern communities where court (e.g., circuit court) only sits a few times a year, and the accused is “waiting, on bail conditions, or sitting in jail for months.” A participant described,

Denial of bail or conditions are so onerous or they live in a community so far away that they have to be flown out, there are no sureties because they don’t know anyone. If you’re not getting out on bail, then they’re more likely to want to plead guilty and maybe serve a short period of time rather than wait at the bail stage. What’s unique is being removed from the community and on remand. It’s going to lead to guilty pleas to get it over with, particularly in the North.

Plea bargaining and legal representation

Participants described clients who plead guilty as part of a plea deal to a lesser charge or in exchange for a reduced sentence or admission to an alternative justice program. A participant explained that in remand, clients are more likely to plead guilty to get a sentence outside of custody. In this case, “a guilty plea is not an aggravating factor, it’s a mitigating factor. A guilty plea keeps them out of jail.”

Participants noted that lawyers and judges are careful in trying to guard against inappropriate guilty pleas by making the necessary inquiries (plea verification) and acting only on “properly informed guilty pleas.”

Participants expressed mixed sentiments about lawyers representing Indigenous people. While some reportedly take the time to understand their clients and seek information from courtworkers, others “just process the case” and “rush, plead them out, make a deal.” Participants described lawyers “swamped with cases” and clients “herded through the [legal aid] program like cattle.” A participant explained, “With all the cuts to legal services, clients are more and more directed to enter a guilty plea rather than go to trial, even if the lawyer and client don’t have the disclosure in its entirety.”

Participants noted that Indigenous communities are not as well represented by counsel because lawyers are unable to meet clients in the community or jail. A participant described issues with the legal aid application process, including long wait times on the phone and barriers for accused without phone or computer access.

Culture and community

Participants described Indigenous people’s alienation from the justice system and the justice system as “one more thing that is just done to them.” They discussed a conflict in fundamental concepts of justice between Indigenous societies and the criminal justice system, “like two worlds colliding.” A participant explained,

What most of my clients find off-putting, the main reason they don’t want to be in court is because of the way the criminal justice system works, based on western philosophical cultural values and notions about how you find the truth and the adversarial process is not conducive to the participation of Aboriginal people. So, when they come into court, they kind of tune out. They appear to understand everything, but you can tell they don’t have a clue, their eyes are glazed over, they’re stressed out, they’re not listening. I ask after what happened and they have no idea, because it’s not culturally appropriate. And if people don’t fundamentally accept those values, they don’t accept the process and they don’t participate in it. Just the idea that the way you deal with somebody who’s done wrong is to isolate them from the community is completely contrary to the goals of the [sentencing] circles, which is reconciliation.

Participants described a “cultural premium placed on taking responsibility and admissions of wrongdoing,” as well as reconciliation, agreement, and cooperation. According to participants, Indigenous accused often show remorse and acknowledge what they have done wrong in attempt to reconcile with their family, the victim, and the community. A participant explained, “Often in Indigenous communities you are to take responsibility for what you’ve done, so pleading guilty is a way of doing that and pleading not guilty to something you’ve done seems like an odd thing to do.” Participants discussed cultural differences in notions of responsibility and guilt. In Indigenous societies, the understanding is that everyone has responsibility when harm is done, people are “taught to take responsibility, whether you physically did it or were part of it, you’re all part of it.” Another participant explained, “A lot of individuals in court when asked to provide a plea, their thoughts are about right and wrong and not about what can be proven and what cannot be proven. Somebody may have done something, but in a court of law they couldn’t prove it. But they’ll still plead guilty.”

Participants described Indigenous female clients who plead guilty even if they have a valid self-defence claim. A participant described an Indigenous female client who explained, “Yes, it was mutually violent. What I did to him is what he did to me. I made him take responsibility, so now I have to take responsibility.”

Indigenous people may face community pressures to plead guilty to lessen the impact of criminal proceedings on their community. A participant explained, “A lot of people will plead guilty because they don’t want to involve the witnesses. For example, ten people subpoenaed and now everyone has to take a day off work, away from their families or communities. It’s going to inconvenience a lot of people.”

Participants described a tendency among Indigenous accused to candidly speak to police and provide incriminating statements that are admissible as evidence and contribute to guilty pleas:

Accused don’t understand they don’t need to say anything to police, just need to say “I have no comment, I’d like to go back to my cell,” and notwithstanding getting advice not to, through translators or courtworkers, [Indigenous people] tend to give inculpatory statements. Think it’s honesty to a fault, and police can’t throw that out, and it becomes hard to argue admissibility. This speaks largely to an [Indigenous] societal value of trying to potentially remedy the situation.

[Indigenous accused] will talk to the police and give very full and complete confessions. I’ve heard anecdotally that has to do with different Aboriginal cultures and the idea that you don’t lie, and somebody in authority you listen to and obey. The vast majority of my files include statements from the accused, begins with the officer confirming the person had a chance to talk to a lawyer, and the accused will blurt out “yes, I did and he said I shouldn’t say anything to you” and the officer says “That’s really good, that’s good advice, but I just want to talk to you a little bit.” And the next thing you know, twenty pages later, the person’s given a full confession. And that can end up affecting whether they want to plead guilty because if you’re in a situation where it’s a weak or shaky Crown case, often that confession makes a difference between the Crown being able to proceed or not.

Social vulnerabilities

Participants described vulnerabilities among Indigenous accused. Participants explained, “A lot of the crimes are driven by poverty, mental health issues, overcrowding, and food insecurity” and that “mental health issues, mostly undiagnosed FASD [Fetal Alcohol Spectrum Disorder] or brain injuries, which usually tie in with substance abuse issues… all those combined leads to them showing up at court because they’re undiagnosed and don’t have supports.” Participants identified accused with FASD and learning difficulties as especially vulnerable to breaching conditions. Without a support system, they “get lost in the system,” “fall through the cracks and end up in jail.” Some participants indicated that accused with mental health or cognitive issues are more likely to receive special attention from legal services.

Participants described Indigenous clients experiencing homelessness and addictions:

Some with lengthy records are pretty well versed and use the justice system to meet their needs. [Client breached a ‘no-go’ condition] Got himself arrested to get ten days in custody, off the streets and in a bed with some meals, to get some clean time. He already has a record, so thinks, “What’s one more charge?” They will detox in custody. If they have any health issues, they’ll get that taken care of, too.

Sometimes clients are entering guilty pleas so they have a place to go [custody], where they have three meals a day, a bed, and a roof over their heads. Or their addiction is so heavy and so hard that they just want to plead guilty to go into cold turkey withdrawal.

For Indigenous people experiencing social vulnerabilities, especially in remote communities, a participant explained,

The whole criminal justice process isn’t as relevant, especially when dealing with intergenerational trauma, substance abuse, poverty.... It’s kind of an after-thought for a lot of the remote communities dealing with boil water advisories, suicide… The intersection with mental health, poverty, access to services, whether there is a greater prevalence of some of those factors in Indigenous communities really needs to be considered.

How pleading guilty affects Indigenous people

Participants described the impact of a guilty plea and contact with the justice system in the following areas: 1) Employment and housing; 2) Family and community; 3) Incarceration; and 4) Re-contact with the justice system.

Employment and housing

Participants described a criminal record as a barrier for education and employment. For example, “having that record really creates a loss of livelihood and loss of opportunity in the future.” Participants discussed pronounced effects for Indigenous people, remote communities with limited job opportunities, and Indigenous youth moving to a city for education or employment. A participant explained,

Because of the many other barriers Aboriginal people face in terms of getting jobs, etc., I think the criminal record has more of an impact because they’re already more likely to be unemployed and living in poverty and then you add a criminal record and that’s one more stroke against them and one more anchor holding them back.

Criminal charges can restrict travel in terms of crossing the border to hunt or fish and the loss of a driver’s license. Pleading guilty can affect access to housing and social services. Participants explained that people in custody are not entitled to social assistance and may lose their low-income housing or spot on a wait list for housing.

Family and community

Participants described how detention in custody breaks family and community connections. For example, losing custody of children and how the loss of a mother or father “becomes a way of life for children.” Some Indigenous people lose connections to cultural practices and experience shaming and alienation from the community.

Participants described the effects of incarceration on families and communities:

Don’t see too often individuals sentenced to custody who come out more positive, looking to lead a better life. That’s the exception. Communities must learn to deal with these individuals and what they’ve learned in custody and sometimes that’s not very good. For example, the language learned in jail can become the new language in the family home as children grow up.

We hear from our partners in the North, when somebody’s flown out of their community, especially the small communities, they’re an integral part of that community, so when they’re taken away, there’s nobody to go hunting and fishing and get food for the community, or go to the well to haul water. The loss of that person is detrimental to the community as a whole.

Incarceration

Participants discussed the psychosocial effects of incarceration. For example, “Being away from their loved ones and circle of help and support, I would imagine that takes a huge toll on one’s mind.” A participant described a client upon release from prison,

They’re a totally different person, more institutionalized. You could tell that something happened while he was inside. He wouldn’t ever tell us what, but we saw the change in his attitude, the way he held himself, and personality traits. There are some good things that come with some time in custody, but there’s also the bad things, like the connections you make, if you get beat up, or anything else far worse.

Another participant explained,

Most of the impacts of a guilty plea are felt in respect of how long you end up in jail, whether the court pays attention to Gladue factors, and your ability to avoid being inculcated into a gang, making it more likely if arrested again you’re going to be on a reverse onus for your bail hearing. A lot of negative downstream impacts to a finding of guilt or a plea.Footnote 5

According to participants, the impact of incarceration is more pronounced for Indigenous people because of a lack of cultural programming and community connections, racial abuse by other inmates and staff, and the resulting trauma that increases their risk of reoffending when released.

Re-contact with the justice system

Participants described a “vicious cycle” of re-contact for many Indigenous people in the justice system. In particular, an “administration of justice offence cycle with enhanced effects on Aboriginal communities.” A participant explained, “Clients are scared, so they don’t show up for court. They don’t understand the consequences and then it snowballs into fail to appear, fail to comply. They don’t realize the more they plead guilty to get it over with, the longer their criminal record gets, and now they’re a long-term offender.” Participants attributed the high number of breach charges in Indigenous communities to addictions and over-policing:

It’s not uncommon to see offenders who have significant histories of breaches related to criminalizing addiction. What that does is increase the likelihood that the offender is going to be sentenced to jail because they have that apparent record of not being able to comply with conditions in the community. This is a feature of a great many Indigenous offenders.

One thing we see up here is the number of breach charges that get laid. For example, no drinking, no contact. Accused may have one substantive offence and five or six breach charges, a criminal record with two or three substantive offences interspersed with seven to fifteen breach charges. Because of the small communities, because the police know everyone and their status.

The justice system was described as “a revolving door, just pumping clientele through.” A participant explained, “People don’t think much about probation conditions and how it leads to a cascade of other offences, like breaches, when maybe it’s not necessary and keeps people jammed up in the system.”

Justice system supports

Participants discussed initiatives that support Indigenous people in the criminal justice system. Some of the main ideas were summarized as follows:

The work of courtworkers, restorative justice programs, and funded support are invaluable, especially for people dealing with other trauma and issues. Having someone that understands their history and needs, and can guide them through the process, so people aren’t feeling like they just want to plead, or not comply with conditions, or just stay in jail, because they feel like there is some hope of not just dealing with this justice issue but also their life issue.

Participants described the benefits of Indigenous courtworkers and community justice/outreach workers, including their presence in the community, trustworthiness, and support navigating the court process,  finding a lawyer, and informing courts about the background of accused and available community services. A participant described courtworkers working with judges, counsel, and FASD networks to raise awareness about FASD and build capacity to identify and refer accused suspected of having FASD for assessment, and develop fairer bail conditions. There were calls for more Indigenous courtworkers and improved standards around language, accreditation, and translation and interpretation quality.

Participants described the benefits of legal aid services, duty counsel (immediate legal assistance), continuity in counsel, Indigenous legal clinics, and the practice of presumed eligibility in Nunavut and Northwest Territories (where everyone is presumed eligible for legal aid without a formal application). There were calls for more legal aid services including lawyer-client face-time in communities and jail, more support for legal aid applicants, cultural competency training for justice system professionals, and policy requirements for counsel representing Indigenous clients – that lawyers and courtworkers work together, and lawyers demonstrate an understanding of the case law and community resources available. The hallmark of strong legal representation was described as understanding the accused person’s background, family history, Gladue factors, and available community services.

Participants called for greater access to public legal education and information, especially in remote areas. Suggested topics include criminal charges, including impaired driving, consequences of breaching conditions, the impact of a guilty plea and criminal record, and the benefits of obtaining counsel and self-identifying as an Indigenous person when applying for legal aid (e.g., referral to courtworker, Gladue factors).

Participants discussed the benefits of specialized courts, like First Nations court, Gladue court, domestic violence court, mental health court, wellness court, and the Downtown Community Court in Vancouver. Benefits include full-time duty counsel, links to community supports, accountability of offenders to elders and service providers, a wellness/healing plan that considers the root causes of justice system contact, and access to victim services and safety planning in domestic violence courts.  

Gladue reports were described as an eye-opener for judges and prosecutors, valuable in helping courts determine an appropriate sentence and identify community services and gaps. A participant explained, “It’s finding out what’s out there, even if there’s nothing out there, it signals supports need to be built.” Participants called for an overarching policy/framework on Gladue reports with increased training, more Gladue reports at bail and sentencing, and reduced time to complete reports.

Participants discussed overarching changes to the criminal justice system’s culture. A participant suggested, “Cultural anthropology is the education piece that has to happen. Maybe we should be learning something from Indigenous people about how to conduct an effective and appropriate criminal justice system.” Participants described the value of restorative justice, sentencing circles, diversion, mediation, elders, spiritual caregiver and peacemaker programs, and other community justice programs tailored to Indigenous cultures and traditions.

Participants discussed broad policy ideas around reviewing who we label a criminal because the consequences can be lifelong and not necessarily in the interests of justice or the community, creating special policies for young adult offenders that recognize brain development continues into early adulthood, and extending the youth justice services/case team model to adults.

Participants called for increased access to justice through technology (e.g., videoconference equipment in police detachments, video link for lawyer-client meetings) and court transportation services to prevent accused having to hitchhike and put themselves at risk, or breach. There were calls for bail reform (e.g., more reasonable conditions, access to programs in remand), more alternatives to incarceration (e.g., community correctional facilities, halfway houses), and more focus on rehabilitation. A participant explained that the community suffers substantially more from punishing and isolating individuals than trying to rehabilitate them.

Participants described a “dire need” for social supports and services that address substance abuse, poverty, overcrowding, food insecurity, intergenerational trauma, abuse, and the impact of colonization and residential schools. A participant explained that if resources were allocated to address these needs, it would reduce the need for the criminal justice system.

Research and data gaps

Participants identified data gaps with respect to Indigenous people in the justice system, including police charges, bail, guilty pleas, false guilty pleas, and wrongful convictions through false guilty pleas. Participants discussed a need for consistent counting strategies, definitions, and units of measurement across and within jurisdictions and sectors. Future research on guilty pleas could involve interviews with Indigenous people with previous justice system contact. Other research areas include alcohol and drug-related offences, specialized court and restorative justice outcomes, incarceration effects, costs of detaining a person for failing to appear compared to providing transportation to court, information on reserves/background factors for lawyers representing clients, Gladue reports, sentences in the context of Gladue and Ipeelee, intersections between the child welfare, mental health, and criminal justice systems, and the pardon/record suspension process.Footnote 6 Participants noted the importance of highlighting the voices and experiences of Indigenous people, and using a trauma-informed approach that considers the impact of residential schools and intergenerational trauma.