As we continue to reflect on how to put an end to anti-Black and Indigenous racism, we must examine our judicial system and determine the reasons it has failed to serve all Canadians equally. Most recently, Chief Justice Richard Wagner explained that the lack of diversity in the justice system is partly to blame. Although Canada’s judiciary has become more diverse, as a growing number of women, visible minorities and Indigenous people are issued a license, there is still a limited number of racialized judges across Canada. In fact, there has yet to be an Indigenous Supreme Court of Canada (SCC) judge. A note on the appointment process The procedure behind judicial appointments has often been kept from the public. It was not until 2016, that the Liberal government commenced an initiative to diversify Canada’s judiciary by rendering the selection process more transparent. The nine SCC judges are appointed by the Governor in Council pursuant to s. 4(2) of the Supreme Court Act (SCA). Requirements for the appointment process has been somewhat formalized to try and promote transparency. In a nutshell, an independent and nonpartisan advisory committee provides the Prime Minister (PM) and the Minister of Justice a short list of potential candidates, who then select a nominee. The nominee is then subjected to a hearing before a Parliamentary committee. Since the SCA is silent on the inner workings of the process, this approach was developed on an ad hoc basis in response to public concerns about lack of transparency. This process has not always been strictly followed. Admittedly, the transition from the traditional processes (whereby the PM appoints from a list of potential candidates, free of public scrutiny) to a public process (whereby impartial committees partake in selecting the candidate) shows signs of progress. However, mere transparency is not sufficient. The process must also be rigorous and consistent. Of the nine judges, the SCA requires that at least three shall be appointed from Quebec. Generally, the Governor in Council appoints three from Ontario, two from the Western provinces or Northern Canada and one from the Atlantic provinces. Apart from these general guidelines, the selection process is truly at the hands of the executive. This may sometimes create a tension between the need to uphold an independent judiciary system and government discretion. With little formalized requirements, the SCC selection process has rarely resulted in the appointment of racialized judges or led to the appointment of an Indigenous judge. Why is diversity important? There is an inherent contradiction when arguing for diversity on the SCC. If judges ought to remain unbiased, why should diversity matter? While all judges should aim to be impartial when hearing a case, it is evident that judicial judgement is not void of personal biases and prejudice. These underlying biases were formally recognized by the SCC in R v RDS (1997). In brief, the case concerned the arrest of a black 15-year-old who had allegedly interfered with the arrest of another youth. The police officer and the accused were the only two witnesses present, and their accounts differ greatly. In deciding that the accused should be acquitted, the judge at first instance took judicial notice that police officers often overreact, especially when dealing with non-white groups. The Crown appealed the decision, arguing that the judgment was biased, and the Nova Scotia Court of Appeal ordered a new trial. The accused appealed to the SCC. The SCC allowed the accused’s appeal and restored the acquittals, finding that there was not reasonable apprehension of bias. The dissent explained that such remarks were inappropriate in all circumstances and should never contribute to a judicial decision. The majority affirmed that courts should be held to the highest standards of impartiality. Decisions must be based on facts in evidence, not biased generalizations. However, the burden of proof for a judge to be found to have acted with reasonable apprehension of bias is high. It is particularly important to note the judgement delivered by four Justices (La Forest, L’Heureux-Dubé, Gonthier and McLachlin JJ). Unlike the rest of the majority who showed concern over the judge’s comments, these judges recognize that judges, while they must strive for impartiality, can never be neutral and purely objective. Instead, different life experiences and backgrounds appropriately assist judges in their decision-making process, so long as those experiences are relevant and not based on inappropriate stereotypes. It follows, therefore, that a diverse SCC bench would advance the court’s ability to develop judgements and resolutions tailored to the specificity of each case. The SCC must work toward improving its selection process and encouraging the appointment of racialized judges that would better reflect the multicultural Canadian population, given that judges of diverse backgrounds apply and interpret the law differently. For instance, Aboriginal communities have often voiced their concerns over the criminal justice system, finding criminal procedures alienating and ineffective in seeking appropriate redress. To have an Indigenous SCC Justice would mean consideration specific to Aboriginal traditional and cultural values. It is merely one way to help fix a system that presents an unending course of barriers and obstacles. This would truly allow our justice system to reflect the view of all Canadians. By Lucinda Chitapain
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The tragic death of George Floyd has sparked many questions around how our social infrastructure can better destroy systemic barriers that have long excluded Indigenous and Black communities. While many solutions hinge on restructuring our policing regime, lawyers and judges alike have a significant responsibility in improving the treatment of Black and Indigenous offenders in our criminal justice system. Disproportionate incarceration rates remain a well-documented and distressing reality for visible minorities. Even though Indigenous people only represent 4.9% of the total Canadian population, they made up nearly 24% of the federal offender population in 2018. Likewise, only 3.5% of the Canadian population identify as Black, but data reveals that 7.3% of the federal offender population is Black. [1] Since media outlets have greatly emphasized the happenings in the US, it is easy to deny that systemic racism persists on Canadian soil. Ontario Premier Doug Ford recently stated Canada does not have the same ‘systemic, deeps roots’ of racism as the United States. Although he has since detracted from this statement, it is important to recognize that Canada, like its neighbour down south, was built on ideologies of white supremacy. [2] From enslaving nearly 3,000 people of African ancestry between 1628-1800s to instituting residential schools to take 150,000 First nations, Inuit and Métis children from their families, Canada is no different than the US. [3] Systemic racism is a complex and multidimensional issue that affects the everyday life of people of colour. As such, our governments must develop tailored solutions aimed at demolishing racial barriers in the economic, political and social spheres. Reforms to the criminal justice system is only the tip of the iceberg. The Impact of Gladue Reports on Indigenous Offenders R v Gladue (1999) was a milestone decision that reinforced the restorative principles of sentencing codified under s.718.2 of the Criminal Code (CC). In a nutshell, the accused, an aboriginal woman, pled guilty to manslaughter for the killing of her common law husband, following a violent dispute. The judge sentenced the accused to three years imprisonment, concluding that the offence very serious. The accused appealed on the grounds that the sentence was inappropriate. Both the British Columbia Court of Appeal and the Supreme Court (SCC) dismissed the appeal. The issue in the appeal to the SCC concerned the proper interpretation and application of s.718.2(e) of the CC. The provision reads: 718.2 A court that imposes a sentence shall also take into consideration the following principles: ... (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. The accused argued that the judge at first instance failed to consider factors that may have led to the offence. The SCC rejected the argument. Justice Cory and Iacobucci, for the majority, concluded that the judge had accurately contemplated mitigating and aggravating factors. Mitigating factors included the fact that the appellant was only 20 years old at the time of sentence, that she was a mother of two and expecting a third. On the other hand, the trial judge acknowledged several aggravating circumstances. The accused had stabbed the deceased twice and made remarks after the stabbing insinuating that she had intended to cause serious harm. As a result of the SCC decision, s.718.2(e) requires “both consideration of alternatives to the use of imprisonment as a penal sanction generally, which amounts to a restraint in the resort to imprisonment as a sentence, and recognition by the sentencing judge of the unique circumstances of aboriginal offenders” (para 38). This evolved into what is known as Gladue reports. In essence, these pre-sentencing reports call upon judges to apply an alternate sentencing method that accounts for the unique systemic and background factors which may have played a part in bringing the particular aboriginal offender to court (R v Ipeelee). They are often prepared by Gladue caseworkers at the request of the defence counsel, the Crown or the sentencing judge. It is important to note, that R v Ipeelee established that an accused does not have to show a causal link between their Indigenous background and the offence committed. Gladue reports can include information about the Aboriginal offender’s history with residential schools, child welfare removal, physical or sexual abuse and any underlying health issues. Gladue reports, however, have received an immense backlash since the SCC’s decision. The overrepresentation of Indigenous offenders has been ever increasing. Between 2013 and 2018, the Indigenous population within Canadian correctional facilities has increased by 14.7%. [4] A 2008 study conducted by Welsh and Ogloff found that the s.718.2(e) interpretation “underestimated the true complexity of the over-representation problem”, finding that Indigenous status alone has little influence on sentencing decisions. The study concluded that sentencing decisions placed an emphasis on the aggravating and mitigating factors (such as offence seriousness and prior criminal history), rather than factors specific to Indigenous communities.[5] Therefore, the Gladue decision requires that sentencing decisions must sufficiently delve into the cumulative effects of colonialism and its ongoing legacy within the criminal justice system. Courts must attempt to reject Western perspectives on the purpose of criminal justice, in favour of processes that rebuild Indigenous communities and respond to the broader question of reconciliation. With this shift in perspective, Gladue reports can become an effective tool during sentencing hearings. Gladue and Black Offenders Although, Black and Indigenous communities do not share the same history, there is no doubt that both communities have relentlessly endured systemic discrimination and remain ostracized today. As such, in my opinion, the criminal justice framework must extend Gladue principles to members of the Black community, when making sentencing decisions. This approach was recently applied in R v Morris, whereby Justice Nakatsuru allowed evidence in regard to the Black accused’s personal circumstances. In brief, a jury had found Mr. Morris guilty of a number of offences, including possession of an unauthorized firearm, possession of a prohibited firearm with ammunition, and carrying a concealed weapon. Mr. Morris was arrested in December 2014, when the police received a call about a home invasion in Scarborough. The accused, along with three other young men, were stopped at a nearby parking lot by officers in plainclothes and unmarked police cars. Mr. Morris proceeded to run, eventually colliding with a police officer’s vehicle. He continued to run and was later found outside a grocery store. The police found a loaded revolver in his jacket, hidden at the bottom of a stairwell. While sentences for gun offences tend to be three or more years, the defence argued that the sentence should be one year. Justice Nakatsuru reiterated that sentencing was a “very individual process”. He concluded that s.718.2(e) enabled judges to consider the social context of Black Canadians as well. In his judgment, Nakatsuru acknowledged that systemic factors such as “the history of colonialism, slavery, policies and practices of segregation, intergenerational trauma, and both overt and systemic racism that continue to affect Black Canadians” (para 9). The decision hinged on two reports brought by the defence. First, a report on anti-black racism in Canada generally, highlighting the experiences of Black Canadians within the Toronto region. Second, the judge admitted evidence about the social history of the accused, from a social worker. He placed an emphasis on admitting such evidence during sentencing hearings, in light of the overrepresentation of Black offenders in Canada. This is vital since the goal is to arrive at a fit and proportionate sentence. The more I know about you and your crimes, the better can I arrive at such a fit sentence. This is particularly important when it comes to tackling the problem of the disproportionate imprisonment of Black offenders. If we cannot have resort to such materials, we will never begin to do better. As a result, Mr. Morris was sentenced to one year imprisonment.
I couldn’t agree more with the decision rendered by Justice Nakatsuru. I believe that judges and lawyers have a duty to recognize that Black and Indigenous persons continue to bear the burden of our criminal justice system. Broadening the interpretation of s.718.2(e) to include Black offenders is only one solution to high incarceration rates amongst marginalized communities. Since the decision was rendered at the Ontario Superior Court of Justice, the decision is deemed to only be persuasive precedent. The SCC has yet to rule on the admissibility of background evidence for other minority groups and the broadened interpretation of s.718.2(e). Nonetheless, the federal government must codify this interpretation to guarantee a consistent and equitable approach to sentencing of Black offenders. By Lucinda Chitapain We’ve decided to halt our COVID-19 series to reinforce something that is of international importance, Black Lives Matter. Amidst a global pandemic, it is especially heartbreaking to see the recent events that have transpired in Minneapolis. Unfortunately, this is not an isolated event. Anti-Black racism is deeply ingrained in our social structures.
On May 25, 2020, Derek Chauvin (former police officer in Minneapolis) used knee restraint on George Floyd’s neck, contrary to protocol, resulting in Floyd dying. His neck was pressed for approximately 8 minutes, which can be seen in a bystander’s video surfacing the internet. While bystanders urged the officer to stop, the other police officers on site failed to intervene. Why did the police restrain him? Floyd was at a grocery store when an employee called the police accusing him of passing a counterfeit $20 bill. Upon the police’s arrival, Floyd, who was unarmed, was quickly brought to the ground and restrained. According to the Minneapolis police department, Floyd resisted arrest, but as seen in the bystander’s video, Floyd promptly surrendered. Hence, he was not posing a threat that would warrant the use of violent restraints and force from the police officers. To put things into perspective, America is seen to be a country of opportunities, a superpower, a democratic leader of the “global north.” However, this incident shows that the system is deeply flawed in the nation, where the allegation of a counterfeit bill at a supermarket has resulted in a man losing his life. What’s the current situation with the police officers? Since the death of Floyd, the four responding officers, including Chauvin have been fired. The FBI is currently investigating whether Floyd was deprived of his civil rights. Chauvin has been charged with third degree murder and second degree manslaughter, with bail being set at $500,000. This has left the community extremely outraged. Many believe that Chauvin’s actions constitute first degree murder. The current investigation is taking a deeper look into the obligations of police officers in such situations. The executive director of the Police Executive Research Forum, Chuck Wexler, stated that “no police academy teaches a police officer to use their knee to put it on their [the person that they are arresting] neck… because that can impact their breathing and their carotid artery [a crucial vessel that supplies blood to the brain].” In addition, police officers are taught to get their suspect off the ground as soon as possible, to sit or stand to ensure that the suspect could breathe. The Aftermath His last words - “I can’t breathe” - have rung across the world. When this video surfaced on the internet, thousands of demonstrators took to the streets in cities across America. Curfews are being enforced, people are being arrested. Enraged by the persistent disregard of Black lives, protesters have turned to looting to make their message heard. The Problem The issue cannot be summed up in a mere post or two. It is sadly not the first time that police officers have used improper procedures when arresting Black people. These protests are being fuelled by the need for change. Ahmaud Arbery was shot in his neighbourhood while he was jogging on May 5. Since there was video footage of the shooting, Gregory and Travis McMichael were charged for aggravated assault and felony murder. Breonna Taylor was shot seven times in her apartment when police officers came to search her apartment. This spurred the call for action that officers need to wear body cameras while conducting searches to document the events that take place. All three incidents involve the death of an African American, and highlight the unrelenting police brutality against Black individuals. The public outcry has escalated internationally, asserting the need for change. International Implications For those who are reading this outside of the US, it’s not just an American issue, it’s international. Unfortunately, racism is deep-seated in the history of countries around the world. In Canada, we like to live under the misplaced notion that racism, particularly Anti-Black racism, does not exist. However, racism plagues Canadian economic, political and social structures. Black people are systematically discriminated at essentially every touch point, whether it be policing, employment or being subject to comments in social settings. The current events show that it is time we change that and recognize that race is a social construct. By: Karen Randhawa |
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