Ethnocultural Groups
&
The Justice System in Canada
A Review of the Issues

Unequal Treatment in Criminal Justice Processing

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.

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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