Criminal Justice Issues for Law Students to Be Concerned About

Intro

Over the last few weeks, following the death of George Floyd, criminal justice issues have been at the forefront of everyone’s mind. With such a wide range of topics being discussed and debated, it can often be challenging to track everything that is going on. Despite this, it is clear that significant reform needs to occur regarding how our criminal justice system operates. As this blog is tailored to current and future law students, I feel that we have a duty to be the most informed and knowledgeable about these issues going forward. While not all law students will be directly involved with criminal justice issues, many will be crown counsel, defence lawyers, judges, and politicians. Therefore, they will have significant control over the future of Canada’s justice system.

Police

The first issue I want to discuss is policing. Perhaps the most polarizing of the issues at the forefront of the Black Lives Matter movement has been a clear call to defund police departments and invest that money into areas that will have a positive impact on these communities, such as education, child care and housing. However, this is because of clear evidence that police departments mistreat minority citizens, and therefore many of those citizens think their tax dollars could be spent in a better way.

Canadians get a significant portion of their media from the United States. It will come as no surprise to Canadians that police departments disproportionately target minorities with violence in the US. Statistics regarding American police include; a CNN article that shows black people are three times as likely to be the victim of physical force from police. From the prison policy institute, black people are incarcerated at almost six times the rate of white people. Moreover, in 2019, black Americans accounted for 23 percent of police shooting fatalities while making up only 13 percent of the population.

While these numbers are staggering, Canadians may be surprised at how many similar stats occur in Canada. In all counties considered to be “first world” countries, Canada ranks second behind the US regarding the rate of civilians killed by police.

Framing Canadian police as less violent than American police is misleading when the reality is that Canadian police are MORE violent than any other similar country but the US. Moreover, victims from fatal police interactions by Canadian police are significantly more likely to be black or indigenous. Indigenous Canadians make up 4.8% of the population yet represented 15% of total fatalities. Additionally, black Canadians who make up only 3.4% of Canada’s population, represented 9% of the casualties. These statistics show whether intentionally or not, police are biased against black and Indigenous Canadians regarding when they use violent force.

Criminal Justice Reform

The overrepresentation of Indigenous people in Canada’s prison system is extremely alarming. In a Maclean’s article titled “Canada’s race problem? It’s even worse than America’s” the statistics showed that while black Americans are three times the national average regarding the incarceration rate, the number is ten times for Indigenous Canadians. Another Maclean’s piece pointed out that this stat is higher than South Africa at the height of apartheid. The worst province in Canada for over-representing indigenous people in Canadian prisons is Saskatchewan, where Indigenous people are 33 times more likely to be incarcerated than other Saskatchewan residents.

While it is clear from the statistics that Indigenous Canadians have worse outcomes when dealing with the Canadian Justice System, the unsolved question is why that is? In my opinion, the evidence supports the answer is twofold; one is a systematic effort from politicians to advance criminal justice policies that disproportionately affect Indigenous people, and the other is how illegal actions stem from poverty. If Canadian law students fight for change in both of these areas, Canada’s criminal justice will be significantly fairer for all in the future.

Bail Issues

In 2015, the Canadian Centre for Policy Alternatives published a report outlining some of the Harper government’s criminal justice policies. While crime rates dropped steadily from 2006 to 2015, there was a significant rise in the prison population, especially among indigenous Canadians. Despite a 1999 supreme court decision, in R v Gladue, that ruled, justices must consider the unique systemic and background factors that impacted an Aboriginal offender. The decision has had minimal impact on reducing over-representation. Furthermore, mandatory minimum sentences reduce judges’ ability to show leniency to defendants, which hurts indigenous offenders.

Jonathan Rudin, a lawyer at the Aboriginal Legal services clinic, says that because mandatory minimums are a “direct pipeline” to a federal penitentiary. Rudin notes that federal prisons are a “breeding ground from further criminal involvement, and many offenders not affiliated in gangs will likely join one inside a prison. The other issue Rudin notes is that because mandatory minimums above two years require federal prison, an indigenous offender is therefore not eligible to serve time in the community under a conditional sentence which is available with a provincial sentence. Conditional sentences allow offenders to participate in treatment programs that help them become rehabilitated instead of more likely to engage in criminal activity in the future.

Another criminal justice policy that further increases the overrepresentation of indigenous people in prisons is unreasonably strict bail conditions. If found in breach of bail conditions, individuals will have bail rescinded and placed in remand jail. These bail violations happen very often, stemming from minor occurrences such as having a drink, a joint, returning home late, etc.

Furthermore, because many Indigenous offenders live on a reserve that is often isolated and far from criminal courts, the financial cost to attend Court can often be a 1000 dollar plane ride. Moreover, cash or financial sureties to secure bail are required when the accused out on bail lives far from the courthouse. If they can’t pay, they stay in remand jail. Reducing fees and unreasonable bail conditions would not reduce public safety and keep more people out of jail who should not be there.

Drug Policy

The final policy that would reduce the number of indigenous offenders in Canadian jails is decriminalizing drugs for personal use. According to an investigation from vice news from 2018, Indigenous and Black Canadians are overrepresented in Canada’s weed arrests. Despite cannabis use rates being similar across racial lines, a Toronto Star investigation showed that “black people with no criminal convictions were three times more likely to be arrested for weed possession than white people.” This shows how police have a clear racial bias in who should be punished for drug use. Additionally, significant evidence from health professionals views drug use as an addiction and not a criminal act. Therefore, treating drug users as patients requiring health care instead of criminals will significantly reduce future drug use. It seems clear that someone with an addiction or other mental health issues would be more likely to get healthy in the company of medical professionals than they would in an isolated prison cell.

Dr. Bonnie Henry, British Columbia’s provincial health officer who has been greatly lauded for her success handling the COVID outbreak, released a report a year prior calling for the decriminalization of drugs. She mentions how the stigma and fear of criminal punishment stop addicts from seeking medical help, leading to an increase in overdoses. Therefore, decriminalizing drugs would help to solve this problem.

Moreover, the stigma surrounding drug use is particularly felt by Indigenous Canadians who are more likely to face criminal punishment. This compounds the adverse health outcomes Indigenous people face all across Canada.

Poverty

In addition to an awareness of criminal justice issues, there needs to be an analysis of how crime and poverty go hand in hand. Low-income Canadians greatly outnumber wealthier Canadians in the criminal justice system because they are more at risk of engaging in criminal behaviour due to the social and economic challenges they face. Issues such as high post-secondary education, homelessness, insufficient social programs for low-income students, universal mental health services and many more create situations that increase the odds someone will engage in criminal behaviour.

The John Howard Society, a leading organization on criminal justice issues, says, “Poverty prevention is crime prevention. If nothing is done to help people living in poverty, families suffer, and so does the community. We all pay the price in higher crime, poor education and lost potential.”

Conclusion

Richard Wagner, the Supreme Court of Canada’s Chief Justice, discussed in his annual press conference the research the Court cited showing “the pernicious effects racial profiling have had on racialized communities in Canada.” The study remarked that these communities have excessive interactions with police and the justice system. They are exceedingly expected to have their rights infringed upon and to be injured or killed in police interactions. The chief justice stated, “these are hard facts, but they are facts.”

There is a lot of ways law students can help fix this situation in Canada. Whether it is voting for politicians who are seeking to remedy these injustices, being conscious of them in their future legal practice or just spreading awareness to those who may not understand the current reality of our legal system, there are lots we can do to improve the future of our legal system.