The Consideration of Indigenous Peoples in High Stakes Evaluations of Risk

Abstract

While Indigenous peoples account for a small portion of the Canadian population, they are overrepresented in the Canadian Criminal Justice System. Research and case law suggest culture should always be considered in violence risk assessments (VRAs), but it is unknown whether this recommendation is followed. The present study examined the role of Indigenous versus non-Indigenous culture in judicial opinions regarding evaluators’ VRA and expert witness testimony in Dangerous Offender and Long-Term Offender (DO/LTO) hearings under Canadian Law. 214 DO/LTO hearings from 2009-2016 where judges commented on VRAs submitted to the court were systematically identified via the Canadian Legal Information Institute database. Judicial comments were analyzed in cases with Indigenous and non-Indigenous defendants for discussions of culture and the prevalence of comments regarding qualities of the evaluator(s), qualities of the VRA(s) completed, and qualities of the evaluators’ expert testimony about the VRA. Judges considered culture meaningfully in 64% of Indigenous offenders’ cases. Discussion of VRA tools’ content was significantly more frequent in non-Indigenous cases; otherwise, frequency of non-cultural themes did not vary between case groups. Given the importance of considering culture in VRA, it is concerning that culture was considered in just over half of cases; improving this deficit is discussed.

Keywords:

• indigenous culture
• aboriginal
• violence risk assessment
• expert evidence
• sentencing

Conflict of interest

The authors have no conflicts of interest to report.

Notes

1 Throughout this paper, the term “Indigenous peoples” is used. Indigenous is a term that refers to different Aboriginal groups. The Government of Canada recognizes the term Indigenous as a broad term for any people descending from an ethnicity or culture that is indigenous to Canada. Indigenous peoples include First Nations, Inuit, and Métis peoples. The term “Aboriginal” (commonly used in government policies and documents) has also been used to refer to Indigenous peoples, however the term Aboriginal is being replaced in Canada with Indigenous in accordance with the UN Declaration of the Rights of Indigenous Peoples (Trudeau, 2017).

2 Section 7 of the Canadian Charter of Rights and Freedoms (1982)

3 Section 15 of the Canadian Charter of Rights and Freedoms (1982)

4 24 (1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible.

5 These dates were chosen because previous research had already investigated judicial decision making for general offending (which would have included DO/LTO cases) and VRA in Canadian courts between 1998 and 2009 (Storey et al., 2013) and for DO/LTO cases between 2006 and 2008 (Blais, 2015).

6 Since Canada’s official languages are English and French decisions can be published in either language. Coders did not have the language skills needed to analyze decisions written in French.