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

Unequal Treatment in Criminal Justice Processing

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> 3

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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