Proposed legislation would eliminate some mandatory minimum penalties, among other changes
A lawyer and researcher behind a recent report on the perception of bias in the criminal justice system say the Federal Government’s proposed criminal justice reforms are a step in the right direction, but more study and action is needed to tackle systemic racism.
On Thursday, Department of Justice Canada introduced proposed amendments to the Criminal Code and the Controlled Drugs and Substances Act, which it says will “keep communities safe, fight systemic racism and make our criminal justice system more effective for all.” The reforms contained in Bill C-22 include repealing mandatory minimum penalties for 14 of the 67 offences to which they currently apply, allowing for greater use of conditional sentence orders and requiring police and prosecutors to consider alternative measures, such as diversion to addiction treatment programs, for simple possession of drugs.
The Canadian Association of Black Lawyers and Ryerson University’s Faculty of Law recently released a report on public perception of and experiences with Ontario’s justice system. The survey of 1,450 Greater Toronto Area residents found “significant racial differences in perceptions and experiences” with the system. The report found Black respondents were “much more likely” to report being stopped, questioned and searched by police than White and Asian respondents and the perception among Black people of racial bias in policing has remained high for 25 years.
President of the Canadian Association of Black Lawyers Raphael Tachie says he is excited about Bill C-22 and that it addresses a lot of the issues detailed in the report.
“I'm very excited about what I'm reading about the proposed reforms,” says Tachie, who is senior counsel at TD Bank. “But that's not enough, right? That is just one measure and one part of the dial. The other part includes hiring more diverse talent and giving training around implicit bias and making sure that your police force, your corrections community are all operating with an awareness of how bias works and how we are all susceptible to it and we all have to have to deal with it and compensate for it.”
“But… you have to count your wins. Today's a day for a win. I want to congratulate and recognize the government. Today is an important day.”
In its announcement, the Department of Justice presented statistics illustrating the disproportionate levels of incarceration of Black and Indigenous Canadians. In 2020, while only representing five per cent of the overall adult population, 30 per cent of federal inmates were Indigenous. In 2018-2019, Black people accounted for three per cent of the Canadian population but 7.2 per cent of the federal offender population.
The over-representation of Black and Indigenous offenders in the correctional system is partly rooted in the over-surveillance and over-policing of those communities, says Dr. Scot Wortley, one of the report’s authors and an associate professor at the University of Toronto’s Centre for Criminology and Sociolegal Studies.
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Wortley says removing mandatory minimums and reducing the length of sentences for certain offenders may help reduce disparities within the system. “So, definitely a positive move,” he says.
But an area which deserves more study is the monitoring and enforcement of conditional sentences, says Wortley. With Black and Indigenous communities under higher levels of police scrutiny, Black and Indigenous offenders are more likely to be caught in violation of their conditions and will re-enter the system, he says.
It is also important to evaluate the effectiveness of the Government’s reforms, a few years in the future, says Wortley. And that requires race-based data “at all decision points within the system,” he says.
Aside from federal corrections, where it is strong, the collection of race-based data is scant in other phases of the system, says Wortley.
“Where data has faltered, however, is collecting data that will document how race impacts decision making at each of the major stages of the criminal justice system, from surveillance practices through to arrest and charging decisions, through to police use of force, searches and strip searches.”
“And then entering the court. What are racial differences with respect to pretrial detention and pretrial release conditions? What impact do those decisions have on subsequent contact with the justice system? What impact does race have on the plea-bargaining process? What impact does race have on the likelihood of conviction and sentence length?” says Wortley. “I think the court system is particularly poor when it comes to documenting how race and other demographic factors may impact decision making within the court process.”
In Wortley’s work he has found that even a small amount of bias at one stage of the system can have a cumulative effect at the incarceration stage, the “end of the criminal justice funnel,” he says.
Reacting to the proposed legislation, the Congress of Aboriginal Peoples said it acknowledged the importance of Bill C-22 and that it addressed “many years of advocacy” by CAP and other organizations.
“Indigenous people in Canada face significantly higher incarceration rates, suffer higher rates of addiction and mental illness, and are disproportionately impacted from criminalization and the lack of drug treatment,” said CAP in a news release.
But the group added that it is “critical” that the Federal Government does not make the same mistake it made with cannabis legalization, and this time include CAP and other organizations in “meaningful consultations around the implementation of these legal amendments.”
“In past cases around cannabis legalization, the lack of appropriate consultation resulted in Indigenous peoples continuing to face systemic inequities and suffer disproportionately from the lack of legal protections and a public health focus around substance abuse. It is critical that these new legal amendments to do follow that same path,” said CAP.