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.

4.7 Summary

The empirical literature is very inconclusive regarding the
existence of unequal treatment at various stages of the
criminal justice process. Generally, the research suggests
that racism does exist throughout the justice system, but it
is subtle and covert in nature. The discretion which may be
exercised by the justice system actors, coupled with the
subtle and covert nature of racism, however persuasive, may
account for the absence of conclusive research findings. The
inference of subtle racism from the empirical research is
supported by anecdotal evidence and commentary in many
reports, making a consistent case that racism is pervasive
within the justice system.

On the basis of this perspective, one may be tempted to
define racism as the problem, and changing racist attitudes
as the solution. The social science literature provides ample
evidence for an immediate note of caution. Changing
attitudes, especially deeply ingrained and encompassing
attitudes like racism, is a daunting task.

In 1936, in California, sociologist La Pierre carried out a
classic experiment. He first telephoned several hotels
requesting accommodations for himself and a Chinese
companion. All of the responses affirming accommodations
received by telephone curiously became situations of no
vacancy when La Pierre and his Chinese colleague appeared at
the hotels some time later. Since then, what has become
known as the attitude-behaviour debate has continued. What
can be most effectively changed first, with the other
following, and in what circumstances, is a very complicated
problem.<143> This is a cautionary tale. A strategy of
changing racist attitudes, and expecting behaviour change to
follow, taken alone, is an uncertain prospect. This is not
to downplay the importance of racism in the justice system.
Racism is an evil of incalculable harm in a society. In a
multi-racial society such as Canada, racism is a clear and
present danger to social harmony and national unity. A
number of studies, such as those carried out by
Etherington<144> and by Gordon and Nelson<145>, have
documented the need for increased sensitivity training and
the careful selection and training- of justice system
personnel.

A second strategy would be to identify more carefully the
specific points in the criminal justice system where
differential treatment occurs, and the mechanisms by which
differential or unequal treatment occurs. Based on that
knowledge, one could attempt to alter the processes or the
conditions which give rise to systemic discrimination. There
is an emerging body of empirical research, however, that
shows how difficult it is to separate conclusive results on
the existence of differential treatment from quantitative
data -- despite Clairmont's remark that research methods are
improving. <146> This body of empirical research infers
there is subtle racism throughout the justice system, which
is made all the more covert because of the large amount of
discretion exercised within the criminal justice process.

Two concurrent strategies would seem necessary. Despite the
methodological difficulties that will be encountered,
research addressing the extent of unwarranted differential
treatment, and the process by which it is exercised, should
be carried out in selected sites. A careful blend of
quantitative and qualitative methods will be required. The
results that one would hope to obtain would be used to
develop guidelines for discretionary treatment. These
empirically based guidelines, derived from outcome data, and
perception and experience data from both justice system
actors and accused persons, would hopefully produce a better
knowledge- of the processes that currently produce
unwarranted differential discretionary treatment. It is
recognised that individual cases are typically very complex.
It is very difficult to determine at what point differences
in treatment become unwarranted. Monitoring research,
carried out on pilot project guidelines, would further
refine the discretionary treatment guidelines.

It will be necessary, at the same time, to address racist
attitudes and the ignorance of justice system actors. In
view of persistent questions about the effectiveness of
cross cultural sensitivity training,<147> these programs
should be reviewed and evaluated in terms of established
methods and approaches in adult education. With the
cooperation of organizations such as the Canadian Judicial
Council and the Western Canadian Judicial Council, which
currently offer cross cultural training for their
professional constituencies, the most effective training
programs possible could be developed.

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