Class, economic status, and social location generally play a pivotal role in whether the police, as the systems gatekeepers, ever observe or police a particular behavior. Given that racial minorities are more likely to come from the ranks of what would be considered the lower class, they are doubly targeted. Conduct that is widespread across class and social location, such as truancy, use of soft drugs and various other ‘deviant’ acts are primarily criminalized among those who are intensively policed, which translates into significantly higher levels of racial minorities being dragged through the gates into the criminal justice arena. Once racial minorities are brought into the system, they have considerable difficulty getting out. A look at the Aboriginal experience illustrates this impeccably.
Aboriginal people experience a deep sense of alienation from a justice system that is completely foreign and inaccessible, plagued with both overt and systemic racism. Aboriginals are more likely than non-Aboriginals to be denied bail, to spend more time in pre-trial detention and to be charged with multiple offences and crimes against the system. As prosecutors and the judiciary respectively have considerable control over what charges are made and who is denied bail, it would appear that both prosecutorial and judicial conduct is influenced by racial bias. While ideally prosecutors are agents of a fair trial, there often exists a lack of motivation on the part of the crown to fight for the underdog, as their credibility and career rests largely on how many convictions they can secure. When the ‘reasonable prospect of a conviction’ is higher for those with a lack of power in the justice system, racial minorities become prime candidates for a conviction.
Aboriginals are more likely not to have legal representation in court proceedings and are less likely to spend sufficient time with their lawyers in preparing for their defense. Inability of Aboriginals, among other racial minorities, to secure and utilize adequate defense counsel is a reflection of systemic inequality in the justice system. Racial minorities often don’t have access to resources to be able to afford top-notch defense counsel. They are left to either fend for themselves or are represented by over worked and underpaid public defendants. Needless to say this a major contributing factor in the overrepresentation of racial minorities in Canada’s prison population. This problem is exacerbated by communication problems, which act as barriers to understanding court proceedings.
Research suggests that Aboriginals have little understanding of their legal rights, court procedures, or of resources available to them. Most Aboriginals wind up pleading guilty merely because they don’t understand the concept of legal guilt and innocence or because they are unaware or fearful of exercising their rights. The Royal Commission on Aboriginal Peoples suggests that the criminal justice system has failed aboriginal people. This is principally because of the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such rudimentary issues as the substantive content of justice and the process of achieving justice.
Numerous Aboriginal values are in sharp contrast to an adversarial-based justice system. Aboriginals believe in non-interference, avoidance of confrontation and adversarial positions. In many communities, Aboriginal ethic suggests that it is improper to express emotions such as anger grief and sorrow. In turn, within the justice system Aboriginal offenders and victims are often interpreted as being unresponsive, uncommunicative and uncooperative. In western justice maintaining eye contact conveys that one is being truthful. In many Aboriginal cultures, maintaining eye contact with a person of authority is a sign of disrespect. An Aboriginal offender who shows no remorse and is unable to look justice officials in the eye will in all probability look guilty and in need of ‘reformation’ in the eyes of a judge or jury that doesn’t understand Aboriginal custom.
Traditional sentencing ideals of deterrence, separation and denunciation are completely foreign to the understanding of sentencing held by the Aboriginal community. Aboriginal conceptions of sentencing place primary emphasis upon the ideals of restorative justice and the importance of community sanctions. A justice system that isn’t sensitive to and understanding of the difficulties aboriginals face within society in general, and the criminal justice system in particular, is doomed to fail Aboriginal offenders and their communities. This failing is reflected in the extent that aboriginals are over-represented in Canadian prisons, more adversely affected by incarceration and less likely to be rehabilitated thereby, which in turn serves to perpetuate the cycle of aboriginal over representation in the criminal justice system.
The law will not suppose the possibility of judicial bias in a judge who has sworn to administer impartial justice and whose authority largely depends upon this presumption. While, ideally we would hope that judges approach their duty with impartiality, overrepresentation of racial minorities in Canadian incarceral institutions begs us to question that presumption. Given the primal importance of the judiciary in the justice system, we would expect judges to be cognizant of the numerous difficulties that racial minorities face. However, the R. V. Brown trial gives evidence that this clearly is not universally the case. The trial judge failed to recognize the intricacies around racial profiling, a practice that remains a significant contributing cause to the over-representation of racial minorities in the justice system. If a judge has difficulty appreciating the existence of racial profiling and its complexities, it isn’t a wonder that it remains such a widespread practice.
In Canada, almost all judges are Caucasian. This may make it difficult for the judiciary to relate to or appreciate the unique challenges that racial minorities face. Alike the larger Canadian society, judges too may suffer from overt and subconscious racism which is reflected in how they manage court proceedings. The judiciary must be aware that their actions have major consequences for the extent to which a person receives a fair trial. This relies heavily on manner in which the courtroom is managed, coupled with instructions the judge makes to the jury. As the judiciary plays a major role in maintaining the legitimacy of and confidence in the system, judges have often acted to preserve the reputations of police officers, prosecutors and expert witnesses at the expense of being prejudicial to the accused, when to do otherwise would somehow jeopardize the integrity of the system. However, any hit of judicial bias against a racial minority offender will in all probability stick in the minds of the jury and impact upon their decision-making.
An impartial jury is a crucial first step in the conduct of a fair trial. Nonetheless, racial stereotypes rampant in Canadian society remain in people’s minds, bred by social conditioning, encouraged by popular culture and media. People have a tendency to accept them as truths and automatically apply them when making decisions, as they are readily accessible and easier than authentically examining a problem and coming to a decision based on listening, rational thought and evaluation These racial biases also have the capacity to filter or even alter information, as information received is shaped to conform to those biases, giving the juror the impression that their decision-making is informed by an air of logic and rationality. Even simply the fact that a person finds themselves on a jury forced to determine the innocence or guilt of a racial minority, might serve to reinforce their racist attitudes. While judges use safeguards and try to warn juries that they must not resort to racial preconceptions or biases in arriving at a verdict, their exists longstanding debate regarding their effectiveness. While racist jurors will continue to result in a disproportionately high number of minority convictions, it remains unseen as to whether the judiciary will be willing to admit the realistic potential for the racist partiality on the part of virtually any juror, thereby judging their own conduct accordingly.
Sentencing judges have a considerable influence upon the disproportionate numbers of racial minorities in the prison system as they most directly determine whether a person convicted of a crime will be sentenced to incarceration. Section 718.2 (e) of the Criminal Code was designed to remedy the excessive use of incarceration generally, and the disproportionately high number of aboriginals who are imprisoned in particular. It invites recognition and amelioration of the impact of systemic discrimination in the criminal justice system. 718.2(e) creates judicial obligation to give its remedial duty full force. Judges must consider all available sanctions other than imprisonment that are reasonable for all offenders, with particular attention to the unique circumstances of aboriginal offenders. This forces the judiciary to be cognizant of the systemic and background factors, such as poverty, substance abuse, lack of education and employment opportunities, which place Aboriginals in a vulnerable position often forcing them into contact with the justice system. Section 718.2 (e) applies to all Aboriginal offenders wherever they reside, whether on or off reserve, in large city or rural area. While one can hope that this rhetoric will make its way into practice, we must appreciate the potential that it won’t. This realization begs us to look beyond post-facto, reactive mechanisms that will do little to reduce the large number of racial minorities in other aspects of the criminal justice system.
Treatment with fairness, dignity and respect by a powerful institution such as the criminal justice system is the sine qua non of justice. However, it would appear that justice has somehow lost it way in a system that protects the rights and interests of some at the expense of others. Racial minorities experience racism in all aspects of their lives. They strongly believe that racism in society plays a major role in erecting barriers to their advancement, a perception that is particularly intense for those who have come into contact with the justice system. Minority dissatisfaction with a system that isn’t dealing effectively with racism, an issue of major concern, coupled with reluctance to approach the system when in need of protection or upon witnessing a crime, suggests a serious lack of confidence in the justice system. This is of profound significance in Canada’s multicultural society as it signals an absence of integration into society with respect to one of the most fundamental social institutions. Appreciating this grave social problem forces us to seek genuine ways to remedy it.
First and foremost we must realize that solutions to the racism problem within the criminal justice system must begin within the larger Canadian societal context. We must put considerable time and effort towards smashing racial stereotypical myths. This will require public education campaigns through the media, in the home, school, work place and recreational facilities. It is crucial to burn into the minds of all Canadians notions of tolerance, compassion and respect for all. This will require continuous long-term commitment from all aspects of the community, the public and private sectors, the media, parents and teachers alike. As it is community members who staff all aspects of the justice system, this is vital if any authentic steps will be made in creating a criminal justice system that promotes egalitarian values.
Providing cultural sensitivity training specifically for all justice system actors is imperative to achieve this goal. The Criminal justice system is largely a white upper-class man’s playing field and this needs to changed. Making a conscious effort to recruit members of visible minorities to play the roles of the police, prosecutors, the judiciary, among other important justice system actors, will change the game significantly. Confidence in the justice system requires the presence of familiar faces, those that have shared experiences and understand the special circumstances that many minority members face. We also must work towards improving the social and economic conditions of all racial minorities in Canada. This will require significant investment in welfare initiatives such as housing, healthcare, education, and occupational skills training. Without addressing the social and economic conditions that foster over-representation of visible minorities in the criminal justice system, we will do little to remedy it. Finally, in lieu of the sharp disparity between Aboriginal concepts of justice and those of our current adversarial system perhaps the government should listen more attentively to Aboriginal pleas for self-government. The creation of a restorative Aboriginal justice system would work wonders for reducing both Aboriginal crime and Aboriginal over-representation in Canada’s criminal justice system.
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R v Parks (1993) 84 C.C.C (3d) 353 (Ont.CA)
Currie, A. Department of Justice Canada. 1994. Ethnocultural Groups and the Justice System in Canada: A Review of the Issues. Online. Netscape. Available: