Archive/File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-004-00
Last-Modified: 1997/01/28
Source: Department of Justice Canada

                                                CHAPTER FOUR
                                        UNEQUAL TREATMENT IN
                                 CRIMINAL JUSTICE PROCESSING

4.0 INTRODUCTION

For important political and historical reasons, based on
treaty claims and the fiduciary responsibility of the Crown
for aboriginal peoples, aboriginal first nations are not
considered for government policy purposes as ethnocultural
groups along with the immigrants and their descendants. From
a sociological perspective, however, aboriginal peoples are
considered within a class and cultural minority, which
offers instructive similarities and contrast with other
ethnocultural minorities in Canada.

The paradigm question in aboriginal justice has been the
issue of overrepresentation in the criminal justice
processing system. Native people are overrepresented as
inmates in the correctional system of every Canadian
province and territory, and in the federal correctional
system.<91> Research in overrepresentation has concentrated
on corrections data because of the lack of data on other key
areas in the criminal justice process: arrest, charging,
plea, and sentencing. While a strong empirical case has not
been made for unequal treatment of aboriginal people
compared with non-aboriginals, there is strong anecdotal
evidence to suggest unequal treatment of aboriginal people
at every stage of the criminal justice process.

There have been similar claims with respect to some
ethnocultural minorities, in particular, non-white
minorities. The research conducted by the Minority Advocacy
Rights Council (MARC) for the Department of Justice
Canada<92> suggests that representatives of minority groups
have knowledge or experience of unequal treatment in the
criminal justice system. In his review of the existing
research, Etherington cites a number of reports that point
out the unequal treatment of racial and ethnic minorities in
the criminal justice system.<93> Background reports prepared
for the former Law Reform Commission of Canada by
Brodeur<94> and by Kaiser<95> also raise issues relating to
unequal treatment of racial and ethnic minorities at various
stages of the criminal justice process.

With respect to the overrepresentation as it relates to
ethnic and racial minorities, Samual and Faustino-Santos
summarize several studies on the representation of members
of national origin groups (an imperfect proxy for ethnic
origin) in the federal corrections system dating back to the
1950s.<96> All the studies cited in their research indicate
that these groups have been underrepresented in the criminal
justice system.

More recent data presented by Thomas confirms the earlier
findings, with two important exceptions.<97> Thomas'
research shows the historical pattern of lower rates of
incarceration, and therefore, a lesser degree of conflict
with the criminal justice system for all but two ethnic
groups; Latin American and Caribbean groups are
overrepresented in federal correctional institutions. It is
important to recognize that illegal immigrants probably
account for much of the overrepresentation. When the data
are constructed for Canadian citizens and landed irnmigrants
only, Latin American groups are no longer overrepresented,
and the extent to which the Caribbean groups are
overrepresented diminishes.

The most recent research on this issue is a study of
ethnocultural minorities in the British Columbia Corrections
system.<98> This study focuses on representation of
selfidentified ethnic groups in the B.C. corrections system.
The research reveals that members of Asian and East Indian
ethnocultural minorities are underrepresented as inmates in
the provincial corrections system relative to their
proportion in the general population. Hispanic and Black
inmates, however, are overrepresented. These data are
consistent with the research on the federal prison
population by Thomas.

Caribbean Blacks and Hispanic groups are among the most
recent immigrant groups. The results presented by Gordon and
Nelson, and Thomas reflect the more general discussion in
the ethnic studies literature. In an analysis based on 1971
and earlier census data, Richmond and Kalbach show that most
immigrant groups had integrated successful into Canadian
society, often surpassing their native-born counterparts on
many measures such as education, home ownership, and
income.<99> These groups were, however, the early migration
groups of "white ethnics." The work by Richmond and Kalbach
did not produce definitive patterns for the more recent
immigration streams because of the lack of data. Later
analysis by Beaujot, Basavarajappa and Verma based on the
1981 census shows that more recent immigrants, especially
from the Caribbean and from South and Central America, lag
behind other groups including the native born, with respect
to income.<100> To some extent, these findings reflect the
length of residence in Canada. They may also suggest that
integration into Canadian society is more difficult for the
more recent groups, possibly because of recent economic
recessions, or because of greater discrimination against
visibly distinct groups. In any event, the general economic
data relating to the integration of ethnic groups parallels,
in some ways, the data on overrepresentation. Some of the
more recent immigrant groups are experiencing problems
integrating economically into Canadian society. Data on
overrepresentation show that some of these groups are also
coming into conflict with the justice system more than
groups from earlier periods, thus reflecting difficulties of
integration into the society in terms of conflict with the
justice system.

Studies of differential or unequal treatment have focussed
on the corrections system, mainly because of the
availability of data. Ethnic or national origin data are not
collected in the administrative data systems at other stages
of the criminal justice system. However, the
overrepresentation that is apparent at the corrections stage
of the criminal justice process may be the cumulative
product of unequal treatment at various stages of the system
from arrest to sentencing. Only two empirical studies have
been carried out in Canada, one by Lescop dealing with
differentials between Blacks and Whites at the arrest stage
in Montreal,<101> and the other by Clairemont, et al.,
carried out in connection with the Marshall Inquiry and
dealing with sentencing differences between Blacks and
Whites in Nova Scotia.<102> Neither study produced
conclusive results.

There is a larger body of American research dealing with
differential treatment and overrepresentation. The general
conclusion from this literature is that discrimination does
exist throughout the justice system in the United States
although it is subtle and not overt.<103> Research results
are generally inconclusive or very weak.

4.1 Police Contact

The police are the most visible justice system actors. They
are, therefore, very important with respect to minority
group perceptions of fairness, equity, and access to
justice. The police are the first point of contact with the
justice system for victims of crimes, witnesses, and
suspects, and they are often the first and primary source of
legal information. 104 As a result, any perceived abuse of
discretionary power by the police can anger communities and
affect their perception of the entire justice system.<105>

It is evident that anger and mistrust of the justice system
arising from police shootings of Blacks in both Toronto and
Montreal has grown in recent years. This was found recently
in both the Lewis Task Force report in Ontario<106> and the
Comitee Bellemare report in Quebec.<107>

Etherington points out that despite the general perception
by minority groups that police abuse of discretion exists,
there has been very little study of broad police discretion
concerning surveillance and patrolling, stop and search
powers, detention, search and seizure, charging, pre-charge
release, post-charge release, and the use of deadly
force.<108> The small amount of existing evidence suggests
the incidence of differential treatment. An unpublished
study in Montreal by Normandeau, cited by Etherington,
reported that non-whites were stopped and questioned by the
police three times more frequently than Whites.<109>
According to Brodeur, there is widespread consensus in the
general research literature that minority youths are subject
to a form of over-policing -- i.e., subject to surveillance,
stop, and search procedures to a greater extent than white
youths.<110>

Police use of deadly force has become a highly visible issue
as a result of a number of shootings of minorities by the
police in Toronto and Montreal. These incidents have led to
new police complaint procedures and, more recently, to the
establishment of the Race Relations and Policing Task Force
in Ontario. The former Law Reform Commission of Canada
called for the reform of Section 25(4) of the Criminal Code
which permits a police officer to use as much force as
necessary to prevent the escape of a person in the course of
an arrest.<111> Any changes to federal legislation amending
the section of the Criminal Code defining the conditions
under which the police can use firearms to stop fleeing
felons should be monitored.

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