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The colonization of Europeans into Canada had great effects on the aboriginal society (Adjin-Tettey, 2007). They have faced a long history of racism and marginalization based on the damages directed at their population through suppression of their cultures and traditions (Bracken, Deane, & Morrissette, 2009). These are done through openly and secretly cultural racialization (Bracken et al, 2009). The marginalization of aboriginals, who are criminalized, on and off reserves, is observed by the effects of their low socioeconomic status, lack of education and lack of available resources (Welsh, 2008). As La Prairie (2002) mentions, the higher a group is marginalized, the more involved they are in being involved in the criminal justice system.
In 2006 the representation of aboriginals admitted to jail sentences was 16.6% of the total population (Welsh, 2008). The discrimination in the criminal justice system comes down to authoritative figures such as the police forces, judges, and parole hearing officers. They all play important roles in how aboriginals are over-represented in the criminal justice system. With the various causal issues hindering the aboriginal populations, over-representation in the criminal justice system across Canada is not a surprise. This over-representation is more evident in western as opposed to eastern Canada (La Prairie, 2002).
Bias Factors in Canadian Law
The causal factor to the aboriginal's high representation in the criminal justice system is based on the Eurocentric aspect of law (Adjin-Tettey, 2007). Law, through Eurocentric perspective, does not give any regard to circumstances of the offenses and the backgrounds of the offenders whereas, first nations would look at these reason prior to making any judgements on a person (Adjin-Tettey, 2007). The social control, repression and exclusions brought on by colonization were, and still are, disastrous to aboriginal society (Adjin-Tettey, 2007).
The laws that have been imposed on the aboriginal population, such as the Indian Act, were to suppress their society. The laws have immensely affected their lifestyles and cause for over representation in Canadian criminal justice system (Bracken et al, 2009). The fact that they were not able to practice their own rituals, have high costs of living compared to mainstream society, are not able to own their own lands, and loss of status because of Canadian government assimilation process allows for demobilization of the aboriginal identity (Bracken et al, 2009). The residential schools that were imposed on a vast majority of the aboriginal population created a huge impact of trauma through identity crisis, lack of proper education and mental health problems (Bracken et al, 2009). Historically, the injustices imposed on aboriginal peoples has created major problems in which it is not difficult to criminalize them as they have been set up for failure unless they assimilate into Canadian society (Adjin-Tettey, 2007).
In terms of rural and urban aboriginals, they are most likely to identify with others who have been disenfranchised by society and some cases, because of discrimination from criminal justice system and society, may form groups such as gangs to fight oppression based on their status and needs for support (Bracken et al, 2009). The discrimination factors that lead to most aboriginals being criminalized are: they lack access to education, have child protection service issues, have a high representation in the criminal justice system and are kept out of mainstream cultures (Bracken et al, 2009). The disorganization of their neighbourhoods, their high rates of mobility and the domination of western cultures are also reasons that contribute to high representation in their rates of criminalization (Fitzgerald & Carrington, 2008).
The marginalization of police officers towards minority communities is an ongoing struggle. In urban areas across Canada, in cities such as Toronto, Vancouver, Winnipeg and others, policing is more apparent in large than in small aboriginal communities (Moyer, 1992). Aboriginals are identified by police officers in 1/5 of offenses (Moyer, 1992). Although race is not attributed to this, the discrimination in how often they identify and charge aboriginals is appalling (Moyer, 1992). Moyer (1992) also found that 1/3 of juveniles suspected of homicides were aboriginals but there was a difference with women as non-aboriginal females were more likely to be identified. The other statistic Moyer (2002) noted was that in the 1980's males who were not married were identified more often than non-aboriginals for non-domestic crimes.
In terms of locations, most offenses occur in urban areas, although a high rate of offenses do occur on reserves (La Prairie, 2002). The main factor for this is because the more familiar the offender is to a community, higher the chance of policing will occur (La Prairie, 2002). This unfortunately has a cost in identifying criminal activity, but most certainly in western Canada as they have aboriginals that are more likely to have a lack of education and do live in low socioeconomic areas (La Prairie, 2002). Eastern Canada fortunately has a low representation rate of aboriginals in the justice system as they are more likely to live better and be better educated (Moyer, 1992). The other factor is the rates of domestic abuse within certain aboriginal communities is high, thus placing a higher chance of being discrimated upon during sentences when police identify an aboriginal during altercations
Court system and sentencing by Judges
Court system. One of the main issues when an aboriginal is being represented in court though is that there is prejudice by not allowing aboriginals the right to challenge potential jurors to see if they have any biases (Welsh & Ogloff, 2000). As they lack proper representatives in court aboriginals, statistically, are more likely to plead guilty which is a cause for their over representation in jails (Welsh & Ogloff, 2000). This discrimination in the court system only assists the assimilation and criminalization of aboriginals rather than serve justice that equally partial among all people of all races (La Prairie, 2002).
Judges. In terms of sentencing brought upon aboriginals in the court system, judges are the authoritative figures that must decide the severity of the sentences given to individuals. Judges are more likely to incarcerate an aboriginal when they are accused of an offence (Welsh, 2008). Although this was noticed, Welsh (2008) mentioned that there is no correlation among judges decisions based on a person's status and sentences being given.
In terms of sentencing by judges, up until 1996 when Section 718.2â‚¬ of the Criminal Code of Canada was created, judges were able to sentence aboriginals without considering the cultural or mental health aspects of aboriginals (Moyer, 1992). This was in context to the cultural barriers and insensitivities of the non-native system towards Frist Nation's people (Moyer, 1992). As history demonstrated the effects of the destabilization in the assimilation process of the aboriginal identity, not even the justice system felt the need to give aboriginals a fair chance during trials (Moyer, 1992).
Once Section 718.2(e) was established, this was to enable judges, when making a decision, to look at the differences between the criminal justice system regulations and possible cultural causes that an aboriginal would have offended (Adjin-Tettey, 2007). The only issue with this is that, since it could be read differently based on cultural, economic and historical causes, judges also could alter the style of sentencing they would determine feasible for aboriginals (Welsh, 2008). This also enabled the restorative alternative aboriginal justice to bypass the criminal justice system. This would mean that once the judges could give shorter sentences but still give more jail time as compared to non-aboriginals (Welsh, 2008). If an aboriginal was being sentenced and were of low-socioeconomic status, had prior criminal history, were from an area with lack of services, and had no employment, judges would most likely give a jail sentence (Welsh, 2008). The issue with this is that this not only criminalizes for being of a marginalized background, but if one were from a small reserve, it discriminated the person as if they were better off living in prison rather than have probation (Welsh, 2008). The other problem is that Aboriginals also are now being convicted more serious crimes which bypass the restorative justice and forces rulings based on the criminal justice system (Welsh, 2008).
Parole hearings discrimination
Aboriginals are more likely not to be granted full parole at their first hearing (Welsh & Ogloff, 2000). Most waive their opportunities for a parole hearing (Welsh & Ogloff, 2000). The determining factors to assist an aboriginal to obtain parole are more than what would be needed for a regular white Canadian (Silverstein, 2005). In order to have a chance at obtaining a full parole, they either have to have been an offender as a youth (Welsh & Ogloff, 2000), or attend cultural programs and have a system in place where they are from such as a job, family, support programs (Silverstein, 2005; Welsh & Ogloff, 2000).
The racial criminalization at hearings for aboriginals is evident in the assessment process. If an aboriginal has no employment, services to support their various needs, such as alcohol addiction and have a negative family history they will not receive parole an most likely continue until the end of their sentence (Welsh & Ogloff, 2000). One of the problems with this scenario is for those living in low socioeconomic reserves, as they may not have support services in place to meet the needs of the offenders (Welsh & Ogloff, 2000).
The most realistic option for an aboriginal to obtain parole is based on completing "community restabilization programs" (Silverstein, 2005, 345). This entails a chief to vow to assist the aboriginal, ensure they are attending cultural programming and made a commitment to return to their community (Silverstein, 2005). Also mentioned in a finding by Silverstein (2005), was that at most hearings aboriginals undergo and pass several questions that are not normally required by other Canadian offenders and also found that having to accept, adjust and abide to one's culture in a North American society. This task places more emphasis on being forced to accept ones culture to be released, as opposed to other ethnic origins such as white offenders who have a generic set of requirements that allows a greater leeway to leaving prison (Silverstein, 2005; Welsh & Ogloff, 2000).