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


4.2 Crown Counsel

Etherington raises-the issue of the extent to which the
Crown may exercise discretion in charging, staying
proceedings, diversion, plea bargaining, bail, and speaking
to sentence.<112> One United States study found evidence of
discrimination in the decision to lay charges. There was a
greater likelihood for charges to be laid against Blacks and
Hispanics than Whites. <113> Other United States research
indicates that non-whites receive less- avourable agreements
through plea bargaining compared with white accused.<114>
The issue of discriminatory treatment by the Crown counsel
is complicated by the fact that the decision to charge made
by a Crown counsel may be the result of discriminatory
activity by the police.<115> According to Etherington,
however, there is not enough evidence indicate whether or
not there is similar discrimination in Canada. <116>

4.3 Defence Counsel

Several reports cited by Etherington raise concerns about
the possibility of disadvantages encountered by minority
accused in bail, plea bargaining, and at trial because of
cultural insensitivity, lack of preparedness, or other
problems on the part of defence counsel.<117> Participants
in one focus-group study conducted by the Department of
Justice Canada raised concerns about the accessibility of
legal aid for minority group members.<118> In a more recent
Department of Justice, Canada study on legal aid duty
counsel services in Canada, lawyers who provide such
services raised concerns about the ability of de ence
counsel to provide adequate services to ethnocultural
minorities, in view of language barriers and, generally, a
lack of knowledge about the various cultures and
communities. <119> Brodeur suggests establishing a community-
based approach to delivering legal aid to minority
communities, such as the Metro Toronto Chinese and Southeast
Asian Legal Clinic.<120>

4.4 The Court Process

The research literature reviewed for this report covers two
court-related issues, sentencing and language of trial.

4.4.1 Sentencing

Unequal treatment of minority and non-minority accused at
sentencing is an important issue. However, as indicated
above, there is little evidence in Canada to corroborate the
persistent views of minority groups that members of certain
ethnocultural minorities are sentenced more harshly than
their white counterparts.<121> United States research
presents mixed results; Petersillia finds evidence that
minorities are sentenced more harshly, and to longer
sentences, <122> while Kleck finds the opposite. <123>

This inconclusiveness is captured well by Etherington in his
summary of one of the few Canadian studies on this issue,
which relates to Blacks in Nova Scotia:

     Clairmont, Barnwell and O'Malley concluded that there
     is little support for the proposition that the race of
     the offender directly affects the sentence he will
     receive. In one study, these researchers concluded that
     race and ethnicity are so inextricably tied to social
     factors, such as low socio-economic status, that it is
     very difficult to determine which variable acted as a
     proxy for the other one...
     
     [The authors concluded: ...there is little support for
     the proposition that on average the race of an offender
     directly affects the sentencing he will receive...
     Finally a structural discrimination model, which posits
     in collaboration with socio-economic factors, direct
     and indirect race effects via defence strategies,
     resources, and personnel assessment is weak and without
     statistical significance. The variables that clearly do
     control sentencing variance are legal factors such as
     criminal record, severity of injury, and embeddedness
     of the particular case (e.g. offender a probation
     violator). In these regards this research is consistent
     with recent work on discrimination in sentencing in
     both Canada and the United States which has generally
     found (research methods have also improved!) that
     discrimination has become more subtle, sporadic, and
     driven into earlier stages of the charge/conviction/
     sentencing process or into the "backroom" of the
     court... in sum, this research has shown that the race
     impact on sentencing either directly or indirectly is
     quite weak.

Despite these conclusions in the text of their study, the
overview of the research volume states:

     While the limited sub-project undertaken for this study
     on sentencing can hardly be seen as definitive, it does
     support the hypothesis that Blacks receive harsher
     sentences for the same offence as non-Blacks. At the
     surface level, Blacks are not getting the absolute
     discharges nor indeed the discharges of any kind at a
     level comparable to non-Blacks. While it may be that
     education, age, employment and other socio-legal
     characteristics are more important directly than race,
     clearly a strong case can be made for the adverse
     effects of discrimination since the evidence is that
     employment, income, and education are areas which
     influence sentencing, and where both the legacy of past
     racism and the implications of current racism effect
     discriminatory outcomes for Blacks.<124>

This parallels the general conclusion in the United States
research that "the results of empirical rese-arch performed
to date have failed to yield definitive conclusions
concerning the presence and location of discrimination in
the criminal justice system. The focus of recent research
has shifted to investigating the extent to which racial and
ethnic minorities are subject to systemic discrimination
because of a disproportionate negative impact experienced
when certain neutral factors_such as education, employment
history and status -- are considered in discretionary
justice decisions." <125>

4.4.2 Language of Trial

The Etherington report notes Pomerant's comment that the
objectives of multicultural policy would be best served if
accused persons were able to communicate with justice system
officials in their "best" language.<126> The quality of
justice would certainly be improved by assuring that
exchanges between accused and officials of the justice
system be clear and within their cultural contexts. This
applies equally to witnesses and victims and will be
discussed more fully below. To assure everyone the
"enjoyment of their Charter right to an interpreter," <127>
Pomerant recommends that this right be provided in
legislation, and that the cost be borne by the state. <128>
Further, Pomerant recommends that a training and
certification process be put in place for justice system
interpreters.<129> The training issue is especially
important and complex because persons appearing before the
court often require cultural interpretation as well as
language interpretation. Cultural interpretation ensures
that actions relating to the offence, and occurring in
court, are understood in terms of meanings which may not be
the same as those understood by court officials, who do not
share the values, attitudes and beliefs of the accused,
witness, or victim. Finally, Pomerant calls for research to
monitor and assess the extent to which the right to an
interpreter is being observed in Canadian courts.<130>

4.5 Corrections

The Etherington report identifies three critical issues with
respect to the postsentencing treatment of minority
offenders, length of incarceration before parole,
accommodation of religious practices, and treatment and
education progress.

4.5.1 Length of Incarceration before Parole

Some United States research<131> indicates that Black and
Hispanic inmates serve longer proportions of their sentences
before parole. One study suggests racial bias is a
cause.<132> Another suggests that some recidivism indicators
used by parole officials are racially biased. <133> The
extent to which these findings are applicable in Canada is
unknown, although the National Parole Board and Correctional
Services of Canada have, in Etherington's words, "the data
and the expertise to find out."<134>

4.5.2 Accommodation of Religious Practices

According to Etherington, the Correctional Services of
Canada, in its published statements and directives,
indicates that efforts are being made to meet the cultural
and religious needs of minorities. 135 Several reports in
his study suggest that, at a minimum, efforts to meet these
requirements for prisoners in a culturally sensitive manner
must be monitored.<136>

Further, it would be valuable to examine the extent to which
the provision for cultural and religious practices can
contribute to the rehabilitation of minority inmates.
Aboriginal representatives often claim that introducing
traditional cultural practices facilitates the healing
process, and hence, a turning away from criminality.

Archive/File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-004-02
Last-Modified: 1997/01/28
Source: Department of Justice Canada

4.5.3 Treatment and Educational Programs

Several of the reports reviewed by Etherington raise
concerns about whether or not treatment and educational
programs are sufficiently sensitive and adapted to the
particular needs of minority inmates.<137> The report by
Brodeur in Etherington's study suggests that since programs
designed to meet the needs of minority inmates do not exist
at the local level in many areas, there is a need for a
national policy and strategy to ensure the existence of
treatment programs sensitive to and appropriate for minority
inrnates. <138>

Research cited earlier in this report indicates that a
certain amount of differential treatment with respect to
sentencing and at other stages in the criminal justice
process, can be attributed to systemic or neutral factors
relating to socioeconomic background. To the extent that
this is true, treatment programs focussing on educational
and occupational upgrading, relating to these predisposing
socio-cultural background factors, might be of considerable
benefit in promoting rehabilitation and preventing
recidivism.

4.6 Ignorance and Prejudice of Justice System Actors

To this point, the discussion in this chapter has been
organized in terms of key points in the criminal justice
processing system where discretion is exercised, and where
differential or unequal treatment may occur. The "racism
factor" discussed in this section applies to the attitudes
and behaviour of justice system actors at all stages of the
system.

4.6.1 The Police

The studies relating to the police reviewed by Etherington
indicate that the differential use of police powers toward
minorities is not explained entirely by legal factors such
as seriousness of the offence, and prior record. The studies
point to differential treatment due to several types of
structural and intentional discrimination.<139> This concern
is raised repeatedly by the representatives of ethnic
organizations in Canada who were interviewed in the MARC
study of concerns of ethnocultural organizations in
Canada.<140>

4.6.2 The Judiciary

Most of the reports reviewed in the Etherington study raise
the issue of the extent to which judicial attitudes impact
negatively on ethnic and racial minorities.<141>
Differential treatment with respect to remands, bail, and
sentencing are at issue.

For the judiciary and the police, being unaware of the
culture and the life circumstances of members of ethnic and
racial minorities where class and race are intertwined,
rather than prejudice, may be the root of certain problems.
In exercising discretion, and while attempting to consider
the factors surrounding a case, justice system actors can
easily misunderstand actions and motives and make
inappropriate decisions. Justice personnel may make
unnecessarily harsh decisions if  there is a failure to
appreciate the confusion felt by an accused person and
possibly that accused persons sense of indignation about a
criminal charge if he or she does not understand what the
crime is, or if a matter for appropriate intervention by the
legal system deeply offends the values of the individual.
The indignation or confusion felt by the individual can
easily be misunderstood by justice system personnel as an
"attitude problem," resulting in less sympathetic treatment
or even less effort to get to the root of the problem.<142>
These types of problems can be addressed by sensitivity
training built on a respect for the principle of cultural
relativity, and a concrete knowledge base about cultural
values and practices of minority groups.

These observations and recommendations allply to all actors
in the justice system. Court clerks and other personnel need
to exercise the same sensitivity in their contacts with
members of cultural minorities as the judiciary and the
public. As noted above, prisoners in remand centres and in
correctional facilities must be treated with the respect for
their culturally-based differences.

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