Aboriginal Youth Overrepresentation in Canadian Correctional Services: Judicial and Non-Judicial Actors and Influence

The crisis of Aboriginal over-incarceration in Canada is one of the most well-documented features of our Criminal Justice System. This crisis is especially profound in the youth context. While the Youth Criminal Justice Act (YCJA) has reduced Canada’s overall youth incarceration rate in recent years, the relative proportion of detained Aboriginal youth has actually increased. This article explores Aboriginal youth overrepresentation in correctional services under the YCJA in an attempt to discern why it has been less effective at reducing custody rates for Aboriginal youth compared to their non-Aboriginal peers. This article suggests that the YCJA has failed to remedy Aboriginal youth overrepresentation because it has focused too heavily on sentencing principles and judicial discretion. It is argued that more attention must be paid to the earlier stages of the criminal justice process during which Police, Crown Attorneys, and Probation Officers exercise low-visibility discretion in ways that disproportionately circumscribe the eventual range of sentencing options available to Aboriginal youth offenders.