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.