Abstract

Excerpted From: Helene Love and Stephanie Wiley, Systemic Racism and Sentencing Indigenous Youth, 58 U.B.C. Law Review 163 (May, 2025) (165 Footnotes) (Full Document)

Systemic racism plays a central role in youth sentencing. Over 20 years ago, in an attempt to address the mass incarceration of Indigenous youth, the government introduced paragraph 38(2)(d) of the Youth Criminal Justice Act which requires judges to consider “all available sanctions other than custody that are reasonable in the circumstances ... with particular attention to the circumstances of aboriginal young persons”. In sentencing Indigenous youth, the common law puts systemic racism at the forefront of the exercise of judicial discretion by directing judges to consider how the disproportionate rates of Indigenous people in custody is linked to the cumulative disadvantage resulting from past and current colonization, oppression, and discrimination. Back when the YCJA was introduced in 2003, Indigenous youth were eight times more likely to be in custody compared to non-Indigenous youth.

In the years since judges were directed to consider systemic factors in sentencing decisions, the proportion of Indigenous youth in corrections has increased dramatically. While the overall rate of youth in corrections has decreased, the rate of Indigenous youth admissions in corrections more than tripled from 14% in 2003-04 to 43% in 2016-17. When considering custodial sentences, the disparities between Indigenous and non-Indigenous youth are amplified, with Indigenous youth making up 52% of 2020-21 custodial admissions and just 8.8% of the youth population. Highlighting the urgency of the issue, the Truth and Reconciliation Commission of Canada singled out the incarceration of Indigenous youth as site for reform, calling on “governments to commit to eliminating the overrepresentation of [Indigenous] youth in custody” by 2025.

Despite its importance, few studies have considered how judges' sentencing practices relate to the failure of paragraph 38(2)(d) of the YCJA to meet its promise for Indigenous youth. There are studies in the adult context where paragraph 718.2(e) of the Criminal Code virtually identical provision directing judges to consider the Indigenous background of a person in sentencing--has been ineffective at reducing rates of Indigenous adults in custody. Those studies suggest that one reason the statute has failed to reduce rates of Indigenous people in corrections is because in considering systemic factors (which would mitigate a sentence), judges are made aware of risk factors (which aggravate a sentence). Others have found that the mitigating potential of paragraph 718.2(e) of the Code is dulled when a person is convicted of a serious offence. What most of these studies, and even the Supreme Court of Canada, have acknowledged is that there are limits to what a statute can do to address the deep-rooted systemic harms experienced by Indigenous peoples in Canada.

There is reason to believe that these issues identified in past studies relating to adult sentencing may not directly translate to youth because the YCJA differs in important ways from the Code. In particular, the YCJA has a presumption of reduced moral blameworthiness and provides alternatives to custody that are not available for adults. Custodial sanctions are only available in extremely limited circumstances, are limited in duration, and are required to be split between custody and community supervision. These unique aspects of the YCJA make the context of youth sentencing different than adult sentencing.

In this study, we analyze youth sentencing decisions through the lens of systemic racism with two primary research purposes. The first is to see whether judges sentence Indigenous youth differently than non-Indigenous youth and if the consideration of systemic factors in sentencing relates to the types and duration of sentences given to Indigenous youth. The second objective of this research is to systematically document the types of systemic harms experienced by the youth who were found guilty of committing serious crimes. While valuable insights to date have been gathered from youth court and corrections data, these sources do not include detailed information about individual youth and judicial sentencing practices. Using case law as a source of data allows us to track detailed background information about the young person being sentenced. It is through this cataloguing of systemic factors experienced by youth that we hope to shift the conversation away from the utility of a statute in addressing mass incarceration to where reform efforts can be redirected in the future.

This paper proceeds in four parts. First, we explain how systemic racism became important in youth sentencing by drawing on Eduardo Bonilla-Silva's work to define systemic racism, the ways it is responsible for the mass incarceration of Indigenous young people in Canada, and how it became central to sentencing youth in the YCJA. We then discuss how we collected our sample of 189 cases and the methods used to understand which systemic factors are experienced by youth who commit serious crimes. We find systemic harms embedded in Indigenous status, with Indigenous youth in our sample more likely to experience systemic harm such as physical and cultural dislocation, family dysfunction, mental health and substance abuse issues, lower income, lower educational attainment, intergenerational trauma brought by residential schools, and contact with child welfare.

Third, we connect Indigenous status to judges' sentencing practices and find Indigenous youth in our sample are more likely than non-Indigenous youth to be sentenced to custody, less likely to have a non-custody only sentence, more likely to be in pretrial detention, and serve longer community-based sentences than non-Indigenous youth. Then we focus on the mitigating potential of paragraph 38(2)(d) of the YCJA in the subset of cases involving Indigenous youth and find no difference in the types or duration of sentences judges give to Indigenous youth when they engage with systemic factors in their reasons compared to when they do not. We conclude that until Indigenous youth no longer experience significantly more systemic harm than non-Indigenous youth, we are unlikely to see a difference in sentencing outcomes.

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Systemic racism helps us understand both a young person's context of offending, as well as the judicial responses to it. In this paper, we show that the legal tool aimed at reducing rates of Indigenous youth in custody has failed to meet its promise, not because of what judges are doing or not doing but because of the incredible weight of systemic harm experienced by Indigenous young people who commit serious crimes in our sample. Indigenous youth who are convicted of serious crimes in our sample are more likely than non-Indigenous youth to have experienced cultural and physical dislocation, family dysfunction, mental health and substance abuse issues, lower income, lower educational attainment, contact with the child welfare system, intergenerational trauma from residential schools, and other systemic harms. Youth continue to experience systemic harms at the hands of the justice system when they are denied access to rehabilitation and services based on geographic and social location, substance abuse, mental illness, prior record, and family dysfunction.

Until the significant difference in the rates at which Indigenous and non-Indigenous youth experience systemic harms disappears, we are unlikely to see similar rates of Indigenous and non-Indigenous youth in custody. As LeBel J said over a decade ago in Ipeelee, “[i]t would have been naive to suggest that sentencing Aboriginal persons differently, without addressing the root causes of criminality, would eliminate their overrepresentation in the criminal justice system entirely.” The judiciary is aware that changing sentencing practices without addressing the root causes of offending will fail to result in lower rates of youth in custody. Though there is no doubt that sentencing judges are responsible for ensuring sentences are not contributing to ongoing systemic racial discrimination, executive levels of government need to redirect political will and funding towards ameliorating living conditions for Indigenous peoples and developing programs that can support youth rehabilitation within Indigenous communities.

Although the wider lens we use to analyze case law here finds that paragraph 38(2)(d) of the YCJA does not mitigate the types and duration of sentences judges give youth, there is still value in requiring judges to engage with systemic factors in their sentencing decisions. Surveys of Crown and defence counsel find that Gladue Reports enable the court to better meet the requirements of the Code and the YCJA in sentencing Indigenous people. Indeed, there are cases in our sample that show individual judges meaningfully engaging with the promise to consider systemic factors as reducing moral blameworthiness for Indigenous youth.

For those being sentenced, the process of putting together the Gladue report can have an educational benefit. In Carmela Murdocca's study on Indigenous peoples' perspectives on the Gladue process, participants reported that it helped them learn about the history of colonialism and residential schools and the impact these policies had on their own families and communities. Other participants reported that report writers played a key role in connecting them to community resources and starting their healing journey.

Other legal system participants equally benefit from the educational role of Gladue reports. Paragraph 38(2)(d) of the YCJA has value in every sentencing decision that engages with the colonial history that brings a youth before the court, where judges recount the continued effects of colonization and publish these personal accounts for the public. As Campbell, Rudin, and Webster note, the “value of a Gladue report resides in its ability to shed valuable light on the nature of the offence (as understood in relation to the underlying triggers or causes rooted in systemic racism).” Through judgments, there is public education around what systemic racism is. When judges explicitly engage with systemic factors in their reasons, it forces the government to take responsibility for its actions that have created the circumstances leading to criminal behavior.

The legal shift to thinking about systemic harm recognizes that the trauma and violence inherent to colonial processes alleviates a defendant's moral culpability. In this way, there is a greater burden on the government to disrupt cycles of alienation and oppression, rather than reinforce them through typical, punitive, responses to crime. All these benefits amply justify continuing to have judges learn and engage with systemic harms in sentencing. The fallacy is thinking that a statute will change the overrepresentation of Indigenous youth in custody without providing resources that can realistically prevent systemic harm from occurring and support rehabilitation within Indigenous communities when it does.

Helene Love, SJD, Assistant Professor, Simon Fraser University, School of Criminology.

Stephanie Wiley, PhD, Instructor and Director, Criminology Minor Program, Department of Sociology, University of Oregon.