Explanations for this overrepresentation include historical injustices – and the contemporary outcomes which are results of that history – faced by Indigenous peoples, as well as structural issues within the current criminal justice system itself.
These issues include over-policing, ineffective representation in court, inadequate application of bail, and over-sentencing, which are all indications of systemic racism.
[8] The combination of these colonial processes created a complex history of trauma for Indigenous peoples; however, of all the contributing factors, the residential school system has been identified as of primary significance.
[9] Contemporary outcomes stemming from intergenerational trauma experienced by Indigenous peoples are overrepresentation in all negative categories of social determinants of poor health including poverty, precarious housing and employment, experience with violence, and disrupted family and support systems.
Duty counsel is a provincially managed legal aid system that provides free services to accused persons at their first court appearance if they are otherwise unrepresented.
Additionally, cultural and language barriers may exist between Indigenous persons and their duty counsel further impeding their access to effective representation.
Often legal aid defence lawyers face similar impairments of being under resourced and overburdened while experiencing cultural and language barriers between themselves and their assigned clients.
Self-represented litigants are less likely to achieve fair settlements, have worse outcomes in family and financial matters and their cases take substantially longer to come to conclusion.
The overrepresentation of Indigenous peoples in the justice system reproduces false racist narratives of their criminality that inform both judges and the prosecution.
[14] Indigenous accused report that the conditions of associated with bail are often unreasonable, specifically for those in small, isolated communities as they may include limitations on who you may or may not have contact with.
Indigenous people may falsely plead guilty due to poverty, to avoid unreasonable restrictions on their movements or to detention to satisfy employment or care giving obligations.
Further, intergenerational trauma and gender inequality has resulted in Indigenous women experiencing higher rates of post-traumatic stress syndrome and addiction.
Due to the combination of all these factors Indigenous women are statistically more likely to participate in survival sex work, an activity criminalized in Canada.
Subsequently, they have called upon the Canadian federal government to, among other interventions, commit to ratifying the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
[31] Similarly, the Truth and Reconciliation Commission of Canada, calls to action 50–52 seek for the improvement of equity for Indigenous peoples within the Canadian legal system.