Fixing a racist justice system

A criminal defence lawyer’s Christmas wish

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but by how it treats its lowest ones.”

Nelson Mandela a person recognized as a global leader in human rights said those words. Originally labeled a terrorist and sent to prison Mandela’s peaceful resistance throughout 27 years of imprisonment culminated in the first multiracial elections in South Africa in 1994 his election as South Africa’s first black president and the eventual and still ongoing dismantling of a brutal apartheid regime.

It is rare to witness a single person achieve so much in the area of human rights. Mandela’s legacy stands out in the public consciousness not just because his death is so recent but also because of the extraordinary length of imprisonment he endured for his cause. Simply put he never got those 27 years back. During his life he was awarded significant recognition for his achievements and struggles and upon his death he has been shown tremendous respect in his home nation and internationally. He was a great person worthy of all the recognition he has received but wouldn’t a more proper tribute be to follow in his footsteps? Rather than accolades Mandela would have asked us to consider who our lowest citizens are and how we treat them.

To answer these questions Mandela would have looked inside our prisons. After 27 years of incarceration some of which included hard labour Mandela was something of an expert when it came to prison. Prison was in his bones prison was in his soul. Prison and his capacity to endure it was part of Mandela’s greatness. He knew perhaps better than anyone that the prisons of a nation are the carpets under which its dark secrets are swept.

So who exactly is inside Canada’s prison system and how are those people treated? The annual report of the Correctional Investigator Howard Sapers tabled in Parliament on December 3 just two days before Mandela’s death provides a troubling analysis. In an almost prescient twist the cover page to the report included the above quote from Mandela.

What then were the findings of the annual report? It comprises a scathing indictment of Canadian penal policy in general but the report is especially concerned about the overrepresentation of aboriginal people in the Canadian prison system and their treatment within it. The findings are deeply concerning:

• The aboriginal incarceration rate is 10 times higher than the national average.

• Aboriginal offenders are kept behind bars for longer periods and at higher security levels than their non-aboriginal counterparts.

• They are over-represented in segregation placements maximum security populations institutional charges (charges while incarcerated) and in use-of-force incidents (where force is used on an inmate by prison authorities).

• Since 2005-2006 the aboriginal population in federal penitentiaries has increased by over 40 per cent. There are now 3500 aboriginal people behind bars in federal penitentiaries.

• More than half of the inmates at several institutions in the Prairie region are aboriginal.

• Aboriginal offenders account for 45 per cent of all self-injury incidents recorded at federal institutions this past year.

As a criminal defence lawyer practising in Calgary it is alarming to see a small portion of the Canadian population make up such a staggering percentage of the Canadian prison system. It is also alarming to see that aboriginal people appear to be treated more harshly within the Canadian prison system than their non-aboriginal counterparts. The question is whether aboriginal Canadians really are more “criminal” than non-aboriginal Canadians or whether Canada’s justice system is in fact racist.

It has long been recognized that aboriginal people face systemic disadvantages arising from colonialism including the residential schools legacy which make them more likely to come into contact with the justice system. Amendments to the Criminal Code specifically state that all available sanctions other than imprisonment should be considered for all offenders with particular attention paid to the circumstances of aboriginal offenders. Developments in the jurisprudence are supposed to take into account the systemic differences that aboriginal people face and act as a counterbalance to ensure Canada’s jails do not end up disproportionately full of aboriginal offenders.

The problem is that the provisions in the Criminal Code and the accompanying case law have proven ineffective in addressing the day-to-day systemic issues faced by Canada’s First Nations. Although the developments are potentially useful tools it all comes down to the challenging aspect of implementation. Three concrete examples from actual cases I have worked on can be used to illustrate this:

• A 20-something-year-old aboriginal male client charged with theft under $5000. He was an alcoholic and had stolen a $20 bottle of vodka from a liquor store without violence or the threat of violence. The police caught up with him later when he was intoxicated from drinking the vodka. He had a lengthy criminal record including property related offences. He had already been in custody for 26 days awaiting sentencing on this charge and pleaded guilty once he had his day in court. The Crown asked for four months in custody the defence asked for time served. The court sentenced the offender to three months in jail.

• A middle-aged aboriginal man charged with a serious sexual assault. He had a lengthy record of unrelated offences and pleaded guilty. The assault occurred while he was heavily intoxicated and so too was the victim with prescription medication the offender had provided to her at her request. The only issue at the sentencing hearing was whether the offender as an aboriginal male should get a reduction in his sentence due to his heritage. A “Gladue” report — used to outline the factors faced by aboriginals that may have contributed to the commission of the crime — documented extensive addictions issues and noted the offender’s entire family struggled with alcohol addictions. In the end the court found no connection between the offender’s aboriginal background and the commission of the offence and did not reduce his sentence to take into account the Gladue factors.

• Finally a young aboriginal offender pleaded guilty to robbing a convenience store. He had walked into the store and showed a knife making a few stabbing motions. He then walked around the counter and stole cigarettes. After he left the store he attempted to return but the door was locked. The Crown asked for a sentence ranging from 3.5 to four years noting the accused had a long mostly non-violent record. Defence asked for a short sharp sentence followed by lengthy probation based on his age (22) the fact he pleaded guilty his fetal alcohol spectrum disorder and personal circumstances including addictions issues and homelessness. There was a Gladue report that outlined experience with racism sexual abuse and growing up in the foster care system. The Court gave credit for mitigating factors and reduced the sentence from three years — which is the starting point for this type of offence — to two years followed by two years of probation.

On the surface all three of these cases appear to be just however when considered broadly there are lessons that can be learned from each one. In the first case the judge refused to give credit for the offender’s aboriginal status without ordering a Gladue report. Such a report takes months to prepare and the offender would have had to wait in custody for a report that is supposed to reduce his sentence — a clearly absurd situation. Another interesting point is that the appeal system is not always an effective means to address sentencing decisions involving aboriginal offenders who plead guilty. When I asked my client to consider an appeal he refused. My impression was that he had no faith in the justice system and feared he may get an even worse result on appeal.

The second case illustrates that even when a Gladue report is ordered and obtained the prosecutor will sometimes argue that there is no connection between the offender’s heritage and the commission of the crime. Most alarmingly judges will sometimes agree with the prosecutor even when the report clearly points out systemic factors such as extreme poverty and addictions issues.

When sentencing judges give credit for mitigating factors there is a question as to whether it is enough. Judges often fail to state how much credit is being given for factors based on the offender’s aboriginal background versus personal factors — mitigating circumstances can be argued regardless of race — which leads to no credit given to address the systemic nature of aboriginal disadvantage. Importantly in the convenience store robbery case the judge was careful to specify how much time was given for each mitigating factor. Unless judges specifically state in their reasons how much credit they are giving for personal circumstances and what credit is being given due to the Gladue factors as was done in this case there is a tendency for the two credits to get conflated.

Although criminal defence lawyers have real tools to address some imbalances faced by aboriginals in the justice system we are not always able to implement them. Policy has not caught up with the law. Judges need to be empowered to make bold sentencing decisions in cases where Gladue factors are present. Appellate courts have an important role to play by applying the principle of judicial deference to these types of lower court decisions. Reductions in sentence or other sentencing options should sometimes be available even in the absence of Gladue reports because in many cases ordering these reports only results in unnecessary delay and cost. Where reports are ordered judges must carefully look at the report to see if there is a connection between the offending behavior and the background factors faced by the aboriginal offender. Judges must be aware that if they do not give credit where credit is due it is unlikely the aboriginal offender will seek redress through the appeals system potentially resulting in a permanent injustice.

Where the Crown argues Gladue reports should be ignored the judiciary should in appropriate cases sharply rebuke them. Although it is an adversarial system the Crown should not be urging the courts to ignore the important mitigating factors in cases where they are clearly relevant.

More than anything however what’s needed is a real plan with timelines and concrete objectives that could help address the over-incarceration of aboriginals on three different levels: before during and after sentencing:

• A plan is needed to deal with aboriginals already in jail. A committee should be formed to review cases and have real powers to reduce sentences in appropriate cases.

• A plan is needed to address aboriginals currently facing sentencing. There needs to be some oversight to ensure that Gladue reports are prepared in a timely and proper way and that judges adhere to them. Judges should also specify clearly in their decisions how much credit they are giving for different mitigating factors so that credit specifically for Gladue factors is not watered down.

• Most importantly a plan is needed to address prevention. Until the living conditions of aboriginals are brought up to the same standard as the average Canadian we can expect a disproportionate number of aboriginals to be before the justice system.

Canada claims to love its First Nations. During Vancouver Olympics ceremonies representatives in headdress participated to demonstrate “our” culture to the rest of the world. During the Calgary Stampede we put “our” First Nations front and centre and claim to be proud of them. But what would Mandela say?

I am a criminal defence lawyer and an advocate for many aboriginal people. Although I have the tools to help correct the imbalance in the justice system there are barriers to effectively using them. The judges are not racist the Crown prosecutors are not racist and the defence lawyers are not racist. The many independently moving pieces of the system working together unfortunately comprise a racist system. The recent report from the Correctional Investigator cannot be denied. In Canada we over-incarcerate more aboriginal people as a percentage of their population than the Americans over-incarcerate African-Americans as a percentage of theirs. Approximately four per cent of the Canadian population is aboriginal while 21.4 per cent of the federally incarcerated population is aboriginal. Approximately 12.6 per cent of the American population is African-American while they make up make up 40.1 per cent of the almost 2.1 million males incarcerated in jail or prison (Office of the Correctional Investigator Canada 2013 and U.S. Department of Justice 2009).

We need a long-term plan with real goals and benchmarks to solve this horrible and embarrassing problem. History will not be on our side and history will not absolve us. As the old saying and song goes if you love somebody set them free. This year my only Christmas wish is that we look inside our prisons and grant justice to our lowest citizens.

At a recent town hall meeting held by the Calgary Court of Queen’s Bench on December 13 2013 the issue of aboriginal overrepresentation in Canadian jails was raised by this writer. The Judiciary expressed willingness to form a committee including the judiciary the Crown and the defence to attempt to address the issue.