Overrepresentation: the evidence and its causes

At 01:40 on Sunday, January 18, Constables Femi Okeke and Sofia Reyes arrived outside the Anchor Tavern on Kingsway to find a man sitting on the curb holding his face and a crowd around a second man, Kyle Beaudry, who was being held against a wall by two bouncers. Witnesses said the two men had argued inside, that the other man had shoved Kyle in the parking lot and that Kyle had then punched him twice. The injured man, a 31-year-old named Trevor Hale, was taken to hospital with a broken cheekbone. Kyle, who had been drinking, was arrested for assault causing bodily harm, and Okeke noted that he was polite, frightened and kept asking whether his grandmother would be told.

Desjardins asks the class to look at what happened next and to keep it in mind through this lesson. Kyle was held overnight for a bail hearing, rather than released by the officer or the officer in charge, because his only address was in Nimkii Bay, he had a record for two breaches of probation conditions from three years earlier, and the arresting officer believed he might not attend court. At the hearing on Monday, he was released with seven conditions, including a curfew, a ban on drinking alcohol and a requirement to live with his grandmother. None of these decisions was unusual or obviously wrong. Desjardins says that is exactly the point: overrepresentation is built from many ordinary decisions, each of which seems reasonable on its own.

What the numbers show

Indigenous people are overrepresented at almost every stage of the Canadian justice system, and the gap has been growing. In a January 2026 release, Statistics Canada reported that in 2023/2024, in six provinces with detailed data including Ontario, Indigenous adults made up 33.2 in 100 of the average daily population in custody, while they were 4.3 in 100 of the adult population. That works out to 89 Indigenous adults in custody for every 10,000 Indigenous adults, compared with 8 for every 10,000 non-Indigenous adults: Indigenous adults were incarcerated at 10.2 times the rate of non-Indigenous adults, up from 8.1 times in 2019/2020. In Ontario the ratio was 8.3. For Indigenous women, the ratio was 18.2.

The federal system shows the same pattern. In 2022/2023, Indigenous people made up about 33 in 100 of adult admissions to federal custody and about 49 in 100 of women admitted, and in April 2022 half of all federally incarcerated women were Indigenous. Young people are affected too: in 2022/2023, Indigenous youth made up 40 in 100 of youth admissions to provincial and territorial correctional services, though they were about 8 in 100 of the youth population. The Correctional Investigator, the federal prison ombudsman, has called the trend a national travesty, and the Truth and Reconciliation Commission's Call to Action 30 asked governments to eliminate the overrepresentation of Aboriginal people in custody within a decade. That decade has passed, and the numbers have gone up.

The other half: victimization

Indigenous people are also much more likely than others to be victims of crime. Self-reported surveys by Statistics Canada have found that Indigenous people experience violent victimization at roughly twice the rate of non-Indigenous people, and that more than six in ten Indigenous women have experienced physical or sexual assault in their lifetime, compared with fewer than half of non-Indigenous women. Indigenous people are victims of homicide at several times the rate of non-Indigenous people; in recent years they have made up roughly a quarter of homicide victims while being about 5 in 100 of the population. Lesson 9 looks at the crisis of missing and murdered Indigenous women, girls and 2SLGBTQQIA+ people.

Jesse Morningstar makes the point that connects the two halves. 'The same families show up in both columns,' he says. 'My cousin who got arrested for fighting and my aunt who got beaten by her husband are from the same house. If you only see one column, you think we're criminals. If you only see the other, you think we're victims. We're people living with a lot of harm, and the system mostly shows up after it's happened.'

Why it happens

Desjardins sorts the explanations researchers and inquiries have offered into three groups, which work together rather than in competition. The first group is historical and social: the effects of colonial policies, residential and boarding schools and child removal described in Lesson 2, together with poverty, overcrowded housing, unemployment, lower levels of formal education, poor health, addiction and exposure to violence. These factors are strongly associated with offending and victimization in every population, and they are far more common in many Indigenous communities because of history. They explain a great deal, but not all, of the gap.

The second group is the set of decisions the justice system makes. Where police patrol, which calls they respond to and how quickly, whether they warn, divert or charge, and which charges they lay all shape who enters the system. Bail decisions shape who stays in custody: Indigenous accused are more likely to be detained, and more likely to be released with many conditions, such as curfews and abstinence from alcohol, which are easy to breach. Breaches of those conditions, which are offences against the administration of justice, then become new charges and a criminal record that makes the next bail hearing harder. Plea bargaining, sentencing options and mandatory minimum penalties shape who goes to jail and for how long.

The third group is bias, both individual and systemic. Individual bias includes stereotypes that officers, lawyers, judges or jurors may hold, often without being aware of them, such as the assumption that an Indigenous person who has been drinking is more dangerous, or that an Indigenous woman who has gone missing has simply run off. Systemic bias includes practices that disadvantage Indigenous people even when nobody intends it, such as using a fixed address or employment as a reason to release, which counts against people who move between communities, or a lack of Indigenous people among police, prosecutors, judges and jurors. Courts have recognized systemic discrimination against Indigenous people in the justice system; the Supreme Court of Canada acknowledged it in R. v. Williams (1998) in the context of jury selection and in Gladue and Ipeelee in sentencing.

What police can do

Desjardins is clear that police did not create overrepresentation alone and cannot end it alone. But police make many of the first decisions, and research on discretion shows that small changes at the front end can have large effects later. The Criminal Code supports this: since 2019, section 493.1 has required police and courts to give primary consideration to releasing an accused at the earliest reasonable opportunity on the least onerous conditions, and section 493.2 requires particular attention to the circumstances of Indigenous accused and of accused from groups overrepresented in the justice system. Keeshig adds that officers can also make sure the decisions they do make are fair, explained and recorded, and that victims in Indigenous communities get the same quality of response as anyone else.

Several practical steps follow. Officers can use warnings, cautions and referrals for minor offences where the law allows, including referrals to Indigenous community justice programs such as Nimkii Bay's healing program or the Port Ardent Indigenous Justice Centre. They can avoid treating a home community as no fixed address. They can recommend conditions that are necessary rather than habitual, recognizing that a total ban on alcohol for a person with an addiction may simply set up a breach. They can use discretion on breaches that involve no new harm. They can make sure that reports by Indigenous victims are taken and investigated with the same care as any other. And they can support the recruitment of Indigenous officers and civilian staff, so that the service reflects the community it polices.

Marco DiSanto asks whether all this means officers should treat Indigenous suspects more leniently. Desjardins says no. It means officers should make decisions based on the facts of each case, be aware of the ways ordinary practices can disadvantage people who live differently, and use the discretion the law already gives them with care. 'Fairness is not leniency,' he says. 'It's getting the decision right for this person, this victim and this offence, instead of applying a habit that was built for someone else.'

Priya Sandhu, who asked in Lesson 2 what Kyle's grandmother had to do with a bar fight, says she is starting to see the connection. Desjardins tells her the next lesson will make it explicit, because Canadian law requires judges to consider exactly that kind of history before sentencing an Indigenous offender.

Data and its limits

Statistics on overrepresentation are powerful, but Desjardins warns the class about their limits. Many records do not show Indigenous identity, or record it inconsistently, because officers guessed from appearance or did not ask. Statistics Canada and police associations agreed in 2020 to work toward collecting Indigenous and racialized identity in police-reported crime data, and Ontario's Anti-Racism Act data standards now require it in some areas, but national data are still incomplete. Figures also differ depending on whether they count admissions, people in custody on a given day or people ever incarcerated in a year. Officers who use such figures should say what they measure, and should never use them to judge an individual. The figures describe the system's outcomes, not the character of any person who appears in them.