Qualitative research report

ABORIGINAL OVER-INCARCERATION 1
Qualitative Research Report
Audrey Wilks
SOWK: 303
Trish Smith
November 4, 2014

In Canada, despite implementation of various measures to reduce Aboriginal
over-incarceration the numbers continue to rise at an alarming rate. This study
explores the experiences of 5 Aboriginal men and 5 Aboriginal women within
the Federal Correctional System, and their experiences with the court process,
Legal Aid, and their defense counsel. In-depth, semi-structured taped interviews
were conducted with 5 Aboriginal men and 5 Aboriginal women who were serving
sentences ranging from 2.5 to 20 years in Alberta, Canada’s Federal Correctional
System. Findings indicated that, Aboriginal men and women felt marginalized by
the judicial system, many were unhappy with defense counsel, Gladue Reports
were rarely used, and many were encouraged to plead guilty.
Introduction
According to Roberts & Cole (1999) Canada has one of the highest rates of incarceration
in comparison to other Western industrialized nations. Aboriginal people make up 3% of
Canada’s population, yet according to Statistics Canada (2010/11), the proportion of Aboriginal
people sentenced to provincial and territorial custody in 1998-1999 was 13 per cent and by 2007-
2008, that number had increased to 18 per cent (Statistics Canada, 2010/11). Melcher & Roberts
(2013), maintain the official crime rate in Canada is notably less than in other Western
industrialized nations, with the exception of the United States, indicating that Canada relies too
heavily on imprisonment as a sanction.
The research question being explored was, “What impact does the Alberta’s Criminal
Justice System and Legal Aid have on Aboriginal men and women’s over-incarceration?” The
purpose of this study was to do in-depth, semistructured interviews with open-ended questions
with 5 Aboriginal men and 5 Aboriginal women serving time in Federal Corrections to explore
their feelings with the Criminal Justice System and their defense counsel. Factors being

evaluated were access to legal representation, relationship with defense counsel, use of Gladue
Report in sentencing proceedings, and level of satisfaction with the court process. The goal of
the study was to evaluate if defense attorneys and the court process disadvantaged Aboriginal
people in some way and contributed to over-incarceration.
Literature Review
Contrary to the Foucauldian prediction that the use of prisons would abate in modern
societies; Aboriginal people continue to experience high rates of incarceration: “Today, the
prisons of …North America are exploding with surplus populations that cannot be off-loaded to
a penal colony…the prisons resemble the slave plantations and the penal colonies given the
increasing disproportionate warehousing of minority individuals behind their walls” (Biko, 2003,
35). Foucauldian would be dumbfounded by the number of provincial and federal prisons in
North America and the high number of incarcerations in a modern society.
Jefferies & Stenning (2014) claim that, “In 2010/11 27% of adults in provincial and
territorial custody and 20% of those in federal custody involved Aboriginal people, about seven
to eight times higher than the proportion of Aboriginal people (3%) in the adult population as a
whole” (450). Owusu-Bempah et al., (2014) contend, in 2012 the Canadian Aboriginal prison
population rose by almost 40%, an increase of 85% for Aboriginal women and a 26% increase
for Aboriginal males. These numbers reflect, an acute need for proficient, accessible,
Indigenous-specific legal representation for all incarceration issues, starting at the time of arrest,
to bail hearings, throughout the court process, and preparations for parole hearings.
High rates of Aboriginal incarceration have seemingly caused an immune response the
system had not anticipated. Schwartz & Cunneen (2009) contend when imprisonment falls on a

particular racial group the effects cease to be explicable in terms of individuals when whole
groups are involved. In this situation imprisonment,
“Becomes part of the socialization process. Every family, every householder,
every individual in these neighborhoods has direct personal knowledge of the
prison – through a spouse, a child, a parent, a neighbor, a friend. Imprisonment
ceases to be a fate of a few criminal individuals and becomes a shaping
institution for whole sectors of the population” (64).
Due to marginalization in society, some Aboriginal people may see incarceration as a safe haven,
a sense of stability, or a place to connect with family and friends. The trend is moving in to the
next generation as Aboriginal youth crime is also on the rise; Kelly (2014) reported, in British
Columbia Aboriginal youth are now seven times more likely to be incarcerated than their non-
Aboriginal counterparts, up from three times since 1996/97.
Milward & Parkes (2011) stated that, the Supreme Court described the circumstances of
Aboriginal offenders as follows:
“Aboriginals peoples, into low incomes, high unemployment, lack of opportunities and
options, lack or irrelevance of education, substance abuse, loneliness, and community
fragmentation. These and other factors contribute to higher incidences of crime and
incarceration” (134).

McDonald (2013) contends, “Efforts to remedy the issue of Aboriginal over-incarceration needs
to be aware of the complexity of Canada’s criminal justice processes, the agency of lawyers, and
the broader social and political context” (2).
Good legal representation for Aboriginal people goes to the heart of questions of access
to justice, equity and the rule of law, proper representation represents the ability of Indigenous
people to use the legal system to a level enjoyed by other Canadians. Ursel (2013) maintains the
significant increase in accused of Aboriginal origin may affect both court outcomes and
sentencing patterns because Aboriginal accused tend to have a lower rate of stays of proceedings
and are more likely than non-Aboriginal offenders to receive a sentence of incarceration.
According to Schwartz & Cunneen (2009) cultural awareness is crucial to the provision
of effective legal representation for any Aboriginal client.
“The complexities of cross-cultural communication impacts not just exchanges
between a non-Indigenous bench and Indigenous people, but permeates throughout
the whole criminal justice process; from the first questioning by police, to the ability
to properly instructing lawyers, to well-known difficulties of the lack of
understanding of the court process and the subtle nuances of giving evidence” (19).
Melcher & Roberts (2013) contend that, there are often conceptual differences between accused
and justice system personnel including counsel and these differences occasionally make
communication very difficult. In some Aboriginal communities, English is a second or third
language and is not spoken in the home. Roberts & Cole (1999) maintain that, in certain areas
where plea bargaining is carried out, a lack of understanding and communication about the issue
can lead to a difficult working relationship between counsel and client, and a loss of credibility

for Legal Aid lawyers in general. The unfortunate aspect of a failure to understand language and
cultural differences can lead to miscarriages of justice.
Ursel (2013) findings indicated, cultural divides was at times at least partially responsible
for criminally charged Aboriginal women receiving unfavorable federal sentences and in many
cases, attitudes to white authority formed an important background to the way in which the
women received federal sentences handed down to them. There are several reports in the
interviews by women who neither believed that the court system would treat them justly, nor
trusted the lawyer who was supposed to act on their behalf. Ursel (2013) maintained that “Since
they felt powerless and had no trust in the process, some acquiesced; they accepted an
unfavorable plea bargain, or remained silent, refusing to offer evidence that either exonerated
them or implicated others in the more serious features of the crimes with which they had been
charged” (24). Ursel (2013) contends they endured being sent to prison in the same silence with
which they had accepted past victimization.
Milward and Parkes (2011) contend that, “Financial disincentives may be serving to
limit defense counsel’s willingness to engage in a thorough examination of a client’s
circumstances as an Aboriginal Canadian” (4). They argue this is particularly the case for Legal
Aid funded attorney’s whose fees are set according to a tariff, rather than by reference to the
actual number of hours worked. Milward and Parkes (2011) also noted that it would be
considerably more work for a lawyer to properly make use of a Gladue Report in comparison to
other cases that can be resolved by a guilty plea. A Gladue Report will require more research,
more preparatory work, advocating for the production of a Gladue Report, and making more
extensive submissions based on the Gladue factors and their role in a client's case. Parkes (2011)
contends that “In some cases, judges aren’t able to apply Gladue because they do not receive

relevant background and information about alternatives to incarceration from counsel or ‘Gladue
Reports while in other instances, funding for community-based programs run by and for
Aboriginal people is simply not there or is so limited that few people can benefit” (1).
Dyck (2008) maintains this gap is a significant one, in light of the important role that
defense counsel can potentially play in shaping the outcome of criminal charges and the sentence
ultimately imposed. Participant’s experiences indicate the relationship between criminalized
Aboriginal women and men and their counsel can be marked by mistrust and conflict. In part,
that conflict can stem from a cultural divide between counsel and client.
Ursel’s (2013) study shed light on the circumstances the courts are dealing with one
Crown commenting on the intake court process:
“I remember having to come in on a Saturday and Sunday to prepare for the
Monday morning docket that would have over 400 matters on it. It was just
sort of like a mill, you just address the files, remand them, and adjourn them and so
on; that’s how the court system worked.”
Ursel’s (2013) quoted Legal Aid duty counsel as stating:
“I can tell you that Monday intake court was a zoo. It was a very stressful
day for me and the court as well”
Roberts & Cole (1999) contend, “Legal Aid counsel appears overburdened in many areas, with
the possible effect of inadequate time spent with individual clients” (72). This is cause for
concern as many Aboriginal people live in poverty and have no choice in representation other
than Legal Aid.

Method
This study utilized qualitative research as it moves beyond the observable and analyzes
the inner aspects of human social behavior. It is inductive and requires an in-depth understanding
of participants feelings and is achieved by actively participating in the subject’s lives, thereby
gaining insights about the empirical social world in question (Jacob, 1998). Less concerned with
the number of participants, inductive research seeks to access the richness and details in the
participant’s story.
Recruitment Procedures
Two Federal Correctional Institutions were contacted for permission to obtain
participants for this study. One was in Drumheller, Alberta and the other in Edmonton, Alberta.
Advertisements outlining the study were placed in the recreational meeting areas of both
institutions commonly used by the majority of inmates. For inclusion to this study, participants
had to be of Aboriginal decent, they were inmates in Federal Corrections, and they had to have
legal representation during court proceedings.
Sample
The sample comprised of 5 status Aboriginal women and 5 status Aboriginal men who
responded to the bulletin. All participants used Legal Aid counsel. Consent was obtained from
each participant and the study was explained to all participants. Access to the final report was
also available to them. The age range of participants ranged from 24 years to 61 years with a
medium of 39.8 years. In this sample, all of the women had children and also 4 of the men, 8
participants were unemployed, and all participants had served over one year of their sentences
that ranged from 5-20 years. Six participants were repeat offenders.

Procedure
Individual, in-depth, semi structured interviews were conducted with all participants and
included open-ended questions regarding their experiences with the criminal justice system and
their relationship with defense counsel. The interviews were taped with informed consent and
were approximately one hour in duration. Since the participants were known to the researcher
data was protected and not shared with third parties. Interviews were conducted at both Federal
Correctional Systems. All interviews were conducted in a comfortable, private room in the
institutions between 10:00 am and 4:00 pm.
Following transcription of the interviews, the data was coded and analyzed using a
grounded theory approach. Creswell (2013) maintains that in grounded theory, the researcher
derives a general abstract theory of interaction grounded in the view of the participants. An
inductive analysis method was used to sort and categorize the data into codes and labels. A
computer software program called HyperResearch was used as it permitted the researcher to
assign multiple codes to the same data. In this study, each participant was one set of data. A
method of constant comparison was used throughout the process to capture commonalities of
recurring themes, words, and phrases from the experiences of the participants.
Limitations
There are many limitations in this study including the small sample size. Because of the
small size these findings cannot be generalized to the adult Aboriginal population. This study did
not capture participant’s exposure to previous trauma(s). A similar study incorporating this
aspect may be helpful to see what factors precipitated involvement in criminal activity.
Information concerning living circumstances was also not explored. Exploring those issues may

provide some insight as to factors caused some Aboriginal men and women get involved with
criminal activity. Also future studies are required to gain a perspective from Legal Aid attorneys
about Aboriginal clients they serve and the system they work within.
Future Research
There is a grave amount of research available on men’s experiences with the Criminal
Justice System. A limited amount of research is available surrounding Aboriginal women’s
experiences. This study is useful as it provides some insight from the perspectives of Aboriginal
men which has not been previously explored. More research is required to explain the
relationship between Aboriginal female and male accused and their defense counsel and vice
versa.
Findings
My findings revealed that four of the women and three of the men felt they were cheated
by their defense’s representation. This is comparable to Ursel (2013) findings which indicated
that a greater number of women felt they had consistently received poor legal representation. The
participant’s experiences with their defense counsel indicated the possibility that criminalized
Aboriginal women and Aboriginal men are not being accorded the full defense to which they are
entitled. Two of the men and three of the women were told it was in their best interest to plead
guilty to a plea deal versus fighting the matter. Sheila stated,
“I told him no lets fight it, I don’t want to go to jail; I have four kids at home”
and he said, “It is not going to make any difference take the plea deal; you’ll
be out in three years otherwise it may be five!”

Jack, stated that his defense attorney told him,
“You’ve been inside before it will be okay; before you know it you will be
on the outside again; take the deal!”
A female in the study reported that she felt such pressure, and believed that it stemmed
from the fact that she was a legal aid client, rather than a paying one; she stated,
“I mean I have no proof that he sold me out, but I mean he wasn’t willing
to put in the time and energy, like he would rather us take a deal that clearly
we didn’t have no reason to take. We could have fought that and gotten off.”
The findings also revealed, that eight of the participants reported they were not given the
option of a Gladue Report. Six offenders reported that they were encouraged to plead guilty to
lesser charges. An important finding was that most participants were unhappy with their Legal
Aid defense attorneys, many felt they were pushed into pleading guilty, and many felt they were
not represented in court the way they should have been.
Discussion
There are no easy answers when it comes to the high rates of Aboriginal incarceration.
There are many factors within and beyond the justice system that come into play. Within the
system there are problems with communication and understanding of conversations with defense
counsel and sixty percent felt the system and counsel had failed them.

McMillan (2011) shares her experiences with Aboriginal people and crime when she
stated,
“The cultural barrier is still quite strong. A lot of them are not guilty and they just
want to plead guilty. Some know the whole process already because they are
going back. Some don’t have respect; they don’t care about anything. They say,
“I will just go to jail,” or “I will not pay my fines.” They will not show up for court
and they don’t care, they go to correctional. Some are really embarrassed by what
the judge has to say after sentencing, but there are some people who just do not
care” (192).
As a society, we need to resolve the high rates of Aboriginal incarceration as it is extremely
costly for all Canadians and it is no longer a deterrent for Aboriginal people. Canada’s Justice
System is bursting at its seams and may be beyond repair as the courts are chronically back-logged
and deal with cases by remanding them to a later date, in hopes of more time down the
line. Effort needs to be dedicated to finding a system that works for Aboriginal people because
money spent on building more prisons to house more inmates is not benefiting anyone.
Conclusion
This study showed that Aboriginal men and women were not happy with their overall
experience with the Criminal Justice System. Many were not happy with their legal defense and
more than half of the participants acknowledged a difficult relationship with their attorney. Many
did not receive the legal representation they are entitled to; in particular Gladue Reports. I feel
Aboriginal people are disadvantaged by the justice system.

References
Biko, A. (2003). Counter-Colonial Criminology: A Critique of Imperialist Reason. London:
Pluto Press, 35
Creswell, J. W. (2013). Qualitative, Quantitative, and Mixed Method Approaches. 4th Ed. Sage
Publishing: New York
Cunneen, C., Baldry, E., Brown, M., Schwartz, M. & Steel, A. (2009). Penal Culture and
Hyperincarceration: The Revival of the Prison. Ashgate Publishing: Australia
Dyck, J. (2008). Stories from the front lines: Realities of the over-incarceration of Aboriginal
Women in Canada
Jacob, E. (1998). Clarifying qualitative research: A focus on traditions. Educational Researcher,
v. 17, No. 1, 16-24. Retrieved from http://www.indiana.edu/~educy520/readings/jacob88.
pdf
Jefferies, S. & Stenning, P. (2014). Sentencing Aboriginal offenders: Law, policy, and practice
in three countries. School of Criminology and Criminal Justice. DOI: 10.3138/cjcc.2014
2014.SO3
Kelly, R. (2014). Raven’s Eye; Windspeaker’s Special Section Serving the Aboriginal People in
BC & Yukon. Retrieved from www.ammsa.com/publications/ravens-eye
McDonald, R. (2008). The Discord between Policy and Practice: Defence Lawyers’ use of
Section 718.2 (e) and Gladue. Retrieved from http://mspace.lib.umanitoba.ca/handle/19
93/3084
McMillan, J. L. (2011). Colonial Traditions, Co-optations, and Mi’kmaq Legal Consciousness.
Law & Social Inquiry Volume 36, Issue 1, 171–200. Retrieved from onlinelibrary.wiley.
com/DOI: 10.1111/j.1747-4469.2010 .01228.x/abstract.
Melchers, R. & Roberts, J. (2013). “The Incarceration of Aboriginal Offenders: Trends from
1978-2001” Canadian Journal of Criminology. V. 45 (2) 211-266 Retrieved from

ProQuest. Full Text: 1-16.
Milward, D., & Parkes, D. (2011). Gladue: Beyond Myth and Towards Implementation in
Manitoba. Retrieved from ssrn.com/abstract=2038324
Owusu-Bempah, A., Kanters, S., Druyts, E., Toor, K., Muldoon, K., Farquhar, J., & Mills, E.
(2014). Years of life lost to incarceration: Inequities between Aboriginal and non-
Aboriginal Canadians, BMC Public Health, 14:585 DOI: 10.1186/1471-2458-14-585
Parkes, D. (2011). Symposium: Why Aren’t Special Sentencing Provisions for Aboriginal
Offenders Working? Aboriginal Law News. Supra University of Manitoba
Roberts, J. V. & Cole, D. P. (1999). Making Sense of Sentencing. Toronto: University Press
Stats Canada (2011). Adult correctional statistics in Canada, 2010/2011. Retrieved from
http://www.statcan.gc.ca/pub/85-002-x/2012001/article/11715-eng.htm
Ursel, J. (2013). Final Report on an evaluation of the Manitoba front end project. Retrieved from
http://umanitoba.ca/centres/resolve/media/FINAL_REPORT_June_for_the_Maxbell_Fou
ndation.pdf

Appendix A:
(Example of women’s bulletin and the same format was used for the men.)
Needed:
A few Aboriginal women who would be willing to participate
in a study conducted through University of Calgary.
The study will require one hour of your time to discuss your
experiences with the justice system.
If you want more information or may be interested in
participating in this study please
contact Audrey Wilks at:
Phone: XXX-XXX-XXXX
at your convenience.

Appendix B:
Invitation to Participate September 10, 2014
Dear __________;
Thank you for responding to the bulletin I posted at your institution. I am currently conducting
research for a study in the Bachelor Program of Social Work through the University of Calgary’s
Department of Social Work. The research is intended to explore aspects of the Criminal Justice
System including access to legal representation, your relationship with your lawyer, use of plea
agreements, and use of Gladue in sentencing.
My purpose in writing you is to request an interview to discuss your insights and experiences
with the Criminal Justice System. The interview will entail a series of open-ended questions and
will take approximately one hour of your time. These questions are designed to obtain general
information from you and will not be based on your specific case. The interview will be tape
recorded (with your permission) and later transcribed. Be assured that the research will follow all
of the ethical guidelines as required by the University of Calgary’s Research Ethics Board –
including confidentially and anonymity.
I will be contacting you by telephone in the next week to determine your willingness to
participate at a convenient time for you. I have been granted access to a private, quiet room at
your location. In the meantime, if you have any questions, please feel free to contact me or my
instructor, Trish Smith.
Yours truly,
Audrey Wilks
B. A. candidate Department of Social Work University of Calgary
XXX-XXX-XXXX
Instructor: Trish Smith
XXX-XXX-XXXX

Appendix C:
Consent Form
Research Project Title:
Experiences of Aboriginal People with the Criminal Justice System and Legal Counsel
Researcher: Audrey Wilks
This consent form, a copy of which will be left with you for your records and reference, is only
part of the research process of informed consent. It should give you the basic idea of what the
research is about and what your participation will involve. If you would like more information or
details about something that is mentioned here, or not included here you should feel free to ask.
Please take the time to read this carefully!
This research is being conducted as part of the University of Calgary’s Department of Social
Work’s Bachelor of Arts Degree. The purpose of this research is to explore your experiences
with the criminal Justice System and your defense lawyer. Specifically, this research will focus
on a number of issues including access to Legal Aid, your defense lawyer and their work, your
relationship with your lawyer, Gladue Reports and its bearing, if any, on the practices of your
defense lawyer. This research will also address more general experiences and perceptions of the
Criminal Justice System with regards to the overall positive and negative outcomes of the
decision. These questions are designed to obtain general information from you and will not
impose on lawyer-client confidentiality. Participants in the study will be interviewed using a
prepared interview guide that employs open-ended questions. Each participant will be
interviewed in person by the researcher. The interviews should take approximately one hour. The

interviews will be tape recorded and later transcribed. In instances where the participant is
uncomfortable with their answers being tape recorded, the researcher will take written notes
during the interview. Participants in this research will not be at risk of any harm that is greater
than what one experiences in the normal conduct of everyday life.
The information provided by participants will be confidential and anonymous. During the course
of the research only the researcher (Audrey Wilks) will have access to the audio recordings and
transcripts, which will be kept in a locked facility and destroyed upon the completion of the
research. Furthermore, no information that could identify an individual participant will be cited
in the reporting of the findings. For example, while the participant’s words may be cited
verbatim in the final report, their identity and the identity of others will remain confidential.
Participants in the study can request the results by contacting the researcher, Audrey Wilks at
XXX-XXX-XXXX or by email at: audree_wilks@gmail.com
Your participation in this research project is completely voluntary. Your signature on this form
indicates that you have understood to your satisfaction the information regarding participation in
the research and agree to participate as a subject. In no way does this waive your legal rights nor
release the researcher or the institution from their legal and professional responsibilities. You are
free to withdraw from the study at any time and/or request the tape recorder to be turned off at
any time and/or refrain from answering any questions you prefer to omit, without prejudice or
consequence. You will not be compensated financially or otherwise as a result of your
participation in this research. Furthermore, your continued participation should be as informed as
your initial consent so you should feel free to ask for clarification or new information throughout
your participation. Please feel free to contact:

Audrey Wilks at XXX-XXX-XXXX - Researcher
Trish Smith (MSW) XXX-XXX-XXXX - Instructor
This research has been approved by the University of Calgary’s Research Ethics Board. If you
have any concerns or complaints about this project you may contact the above persons or the
Humans Ethics Board at XXX-XXX-XXXX. A copy of this consent has been given to you to
keep for your records and reference.
Participant’s signature: _______________________ Date: ________________________
Researcher’s signature: _______________________ Date: ________________________

Appendix D:
Here are some examples of the open-ended questions I will ask participants:
I would first introduce myself and make them feel comfortable by making small talk.
I would advise them that the interview can stop at any time on their request and they do not have
to answer any questions that make them uncomfortable. Also they do not have to share anything
with me that they would prefer to keep private.
1) Tell me about your life before coming to prison?
2) Tell me what has been the hardest thing for you during this process?
3) Can you tell me about what circumstances led to your charges?
4) Can you tell me how you felt while you were going through the court process?
5) What sticks out the most in your mind about everything you have been through?
6) Do you feel like you were properly represented during the court process?
7) Can you tell me how you felt while you were going through the court process?
8) Tell about the relationship you had with your lawyer?
9) What do you think your lawyer could have done to make that relationship better?
10) How do you feel about the sentence you received?
11) If you had to give advice to a family member or a close friend what would you tell them
about your experiences with the justice system?
12) If the process could have been made easier for you; what would that look like?

Qualitative research report

Recommended

Recommended

More Related Content

Similar to Qualitative research report

Similar to Qualitative research report (20)

Qualitative research report