CC313 -- Race and Wrongful Convictions

Data Shows

• Over-policing of black communities

• Over-incarceration of Indigenous people

• Gaps in data collection

Race and the Criminal Justice System

• Race as socially constructed

  • Colonial history

  • Indian Act

  • Assumption of physical, moral, intellectual, and social superiority and inferiority based on characteristics presumed to be ascribed

  • Irrational way of dividing people based on skin pigmentation/physical characteristics

• Yet underlies and profoundly shapes criminal justice experiences

Offending and Victimization

• Indigenous people and Black Canadians have a much higher victimization rate for homicide

• Indigenous people’s higher rates of both offending and victimization are rooted in colonization and its ongoing impacts

• Indigenous women are particularly vulnerable

  • Much higher rates of violent victimization

  • Often end up homeless and over-policed when they seek help

• Over-representation and high victimization -- Provide context where wrongful convictions and unfair treatment are more likely and less visible

Policing

• Newspaper Investigation -- Black people stopped, ticketed, charged, and held overnight at rates higher than Whites

• Response from Police and Some Scholars -- Question data quality and claim that using race in profiles is legitimate, not racist

• Other scholars argue the disparities are real and not explained away by neutral factors -- Show systemic bias

• Ontario Human Rights Commission calls racial profiling undeniable -- Frames it as a human rights violation

• Racial Profiling -- Determines who is stopped, charged, and pushed into the system, shaping who is at risk of being wrongfully convicted

The Courts

• Widespread belief that the courts do not treat people equally on the basis of race

• Court experiences of minorities:

  • More likely to lack resources for counsel

  • More likely to be denied bail, held pre-trial, face stringent release conditions, and breach these conditions

  • Pre-trial detention leads to higher conviction rates and harsher sentences, feeding over-incarceration

  • Section 718.2(e) and Gladue: Despite legislative and Supreme Court attempts to address Indigenous over-incarceration, imprisonment has not decreased in any meaningful way

• Pre-trial detention, lack of counsel, and stereotypes make it harder for racialized accused to mount a full defence and easier for wrongful convictions to occur

Corrections

• Embedded bias and systematic discrimination in corrections

• Risk assessment tools rooted in policing and court biases -- Reinforce inequality

• Assess Indigenous and Black prisoners at higher risk

• Place them more frequently in:

  • Higher security levels

  • More restrictive conditions

  • Limited access to cultural programming and early release pathways

Maintaining Injustice in the Canadian Criminal Justice System

• Charter guarantees the rights and freedoms of all

• Charter is assumes neutral -- Colour blind

• Charter of Whitnesses -- Protecting dominant groups while failing to remedy systemic racial injustices

• Courts often ignore systemic racism in reaching decisions

  • Racial inequality becomes constitutionally entrenched

Structure of Whiteness in Charter of Whiteness in Charter Interpretations

• Legal culture, legal precedent, and professional norms normalize White perspectives and experiences

• Judges often see themselves as neutral and colour-blind- makes it harder to acknowledge racialized harms as Charter violations

Case Law Review -- Role of Judges

• Behaviour of judges in criminal cases where racism was raised

  • Minimize or ignore racial context

  • Treat racism as an individual problem rather than a systemic one

  • Set high evidentiary standards to prove discrimination

  • Appear hostile when asked to adjudicate a race issue

• Consequences of this pattern of behaviour

  • Racially biased practices continue relatively unchecked

  • Convictions obtained through racially tainted practices are upheld

Failure to Act -- Role of Lawyers

• Large-scale failure of lawyers to raise race in court

• Happens with defence lawyers, prosecutors, and appellate lawyers

• Without explicit anti-racist strategies, lawyers unintentionally reinforce the Charter of Whiteness

Reasons for the Silence?

• Refusal to act and lack of race consciousness by lawyers -- Direct and real-life impact on the ability of the Charter to remedy racial injustice

Current Reality

• Present-day manifestations of racism -- Treatment of Indigenous peoples under the CJS

  • Under-policing

  • Over-policing

Cultural Contributors to Miscarriages of Justice

• Communication Barriers

• Cultural Barriers

• The way evidence is presented

• The requirement of impartiality on the part of Canadian judges

Perspective

• The overall perspective of an aboriginal person toward Canadian legal institutions is one of being surrounded by injustice without knowing where justice lies, without knowing whether justice is possible.”

Racialized and Gendered Injustice

• Indigenous women account for half of all women in federal prisons while representing under 4% of Canadian women

• Dept. of Justice Report examined ten interconnected elements of racism and sexism that led to miscarriages of justice of twelve Indigenous women

Systemic Factors Leading to Miscarriages of Justice for Indigenous Women

• Genocidal colonial forced removals from lands & institutionalization

• Victimization, hyper-responsibilization and deputization

• Hyper-responsibilization and criminalization as a result of trying to survive and navigate marginalization and violence

• Bias with respect to police responses, particularly investigation and charging practices

• Bias in the exercise of prosecutorial discretion

• Lack of application of section 718.2(e) of the Criminal Code

• Failure to consider alternatives to punitive sentences

• Discriminatory risk assessment and classification tools, practices and policies

• Unending nature and ongoing impacts of life sentences

• Perpetuation of vicious circle of children in foster care, forced separation of Indigenous women from their children and communities

Recommendations

• Learn about Canada's colonial history- research clients’ particular communities, learn the history and current conditions

• Have a Contrarian- checking tunnel vision & racism

• Formalize requirements of pre-charges screening in all provinces- prevent overcharging

• Aggressive questioning of identification procedures used

• Study the bail system's incentivization of false guilty pleas

• Increase use of Legal Aid memos & Gladue training/training resources for private bar lawyers

• Recognize the validity of indigenous conceptions of justice

• Eliminate mandatory minimum penalties

• Eliminate over-representation of Indigenous Peoples in prisons

  • Provide funding to communities

  • Provide community-based resources for Indigenous women

• Incorporate substantive equality and intersectionality into the conviction review process

  • Recognize & redress realities of racism, class bias and misogyny experienced by Indigenous women which leads to miscarriages of justice