When justice becomes “racialized”
CHRONICLE / Pandemic (and election) obliges, it went a little unnoticed. It shouldn't have been. The federal government has taken two decisions, since last August, so that justice will have to take into account the ethnicity of offenders even more than before to determine the sentence that suits them.
The first of these decisions is $8.9 million in funding awarded last Thursday to the British Columbia First Nations Justice Council. This money will be used to multiply aboriginal justice centers in this province. These centers have the mission of avoiding the incarceration of Aboriginal people as much as possible, in particular by advocating for the increased use of restorative justice, by demanding fewer conditions of release for them (the non-respect of these conditions is an important source of reincarceration) and above all, by helping to prepare Gladue reports.
The second (and most transformative) of these federal decisions came in August in the midst of the election campaign. Ottawa provided $6.64 million to expand the Nova Scotia EIOECs, Ethnic and Cultural Origin Incidence Assessments, across Canada.
Wondering: Gladue Reports? EIOEC?
Gladue is the 1999 Supreme Court decision regarding a Cree named Jamie Tanis Gladue. While heavily intoxicated with alcohol, she stabbed her husband to death upon learning that he was cheating on her with her sister. She was sentenced to three years in prison, but was released after six months. This landmark judgment established how to apply a section of the Criminal Code inserted five years earlier which stipulated that judges must consider “alternative sanctions” before resorting to the imprisonment of Aboriginal people. Gladue's Principle was born. Gladue reports are pre-sentence accounts of the accused's experiences in court.
It is under this principle that a young woman who killed her unfaithful father saw her sentence reduced to two years in prison in 2018. The Quebec Court of Appeal ruled that Stacey Sikounik Denis-Damée had lived in a "pitiful family environment" and that the consequences of residential schools on the descendants "constitute historical and systemic factors which lessen her degree of moral culpability".
The EIOECs apply the same logic, but to black or “racialized” defendants. They first appeared in 2014 in Nova Scotia. Like the Gladue reports, these are presentations on the experiences of “racialized” people aimed at putting their crimes into perspective.
Last August, as the gun violence debate raged, a decision influenced by an EIOEC caused a stir in Halifax. Rakeem Rayshon Anderson, a black in his twenties who was intercepted driving his car with a revolver loaded at the waist, receives house arrest rather than the two to three years in prison demanded by the Crown. In his EIOEC, it had been argued that he felt unsafe because his best friend had been murdered. It was also written that carrying a gun is an "accepted cultural norm" in the area of Halifax where he grew up. “Many black men arm themselves not because they plan to go after someone, but rather because they feel the need to protect themselves.
It is from this decision that Ottawa was inspired to finance the pan-Canadian generalization of the EIOECs.
But has this path borne fruit and is it worth expanding?
The incarceration rate of Indigenous and Black people in Canada is staggering. Aboriginals make up only 4.7% of the Canadian population, but 32% of the federal prison population (and even 48% for women). Blacks are only 3% in Canada, but 9.5% in penitentiaries. One of the explanations is probably on the side of age. Crime is a youth affair. However, Aboriginals and Blacks are significantly younger than the Canadian average, with respective median ages of 29 and 30 compared to 41. But the main reason is systemic racism.
Despite 22 years of application, Gladue's principle has failed to stem the rise in Aboriginal detentions. This principle also disturbs the victims. In its final report, the National Inquiry into Missing and Murdered Indigenous Women and Girls called on governments to "comprehensively assess the impact of Gladue principles…on fairness in sentencing." related to violence against Aboriginal women”. Indeed, since violence is often intra-community, the victims of Aboriginal criminals are often Aboriginal too. How, then, can the Inquiry's desire that a victim's Aboriginal identity be considered an aggravating factor be accommodated if, on the other hand, the offender's Aboriginal identity is considered a mitigating factor?
In its Gladue report writing guide, the British Columbia First Nations Justice Council explains that one must consider whether the Aboriginal defendant has been affected by substance abuse in the family, by poverty, by chronic unemployment, by racism or even by a disintegration of his family or his community. Dare the question: how many white prisoners from the pre-gentrification lowlands of Hochelaga-Maisonneuve or Limoilou can also answer in the affirmative? Is their miserable experience less burdensome because it is less widespread in their racial community to which they belong? A trial serves to judge an individual, not to bring justice to his entire community.
This path taken by Ottawa threatens to undermine the already fragile popular support for Bill C-5 abolishing certain minimum sentences. This bill under study would give judges the latitude they need to punish less accused persons who have committed a minor version of an offense under the Criminal Code. If citizens come to think that it aims rather to modulate the sentence according
to the color of the skin, they could turn away completely.
The first of these decisions is $8.9 million in funding awarded last Thursday to the British Columbia First Nations Justice Council. This money will be used to multiply aboriginal justice centers in this province. These centers have the mission of avoiding the incarceration of Aboriginal people as much as possible, in particular by advocating for the increased use of restorative justice, by demanding fewer conditions of release for them (the non-respect of these conditions is an important source of reincarceration) and above all, by helping to prepare Gladue reports.
The second (and most transformative) of these federal decisions came in August in the midst of the election campaign. Ottawa provided $6.64 million to expand the Nova Scotia EIOECs, Ethnic and Cultural Origin Incidence Assessments, across Canada.
Wondering: Gladue Reports? EIOEC?
Gladue is the 1999 Supreme Court decision regarding a Cree named Jamie Tanis Gladue. While heavily intoxicated with alcohol, she stabbed her husband to death upon learning that he was cheating on her with her sister. She was sentenced to three years in prison, but was released after six months. This landmark judgment established how to apply a section of the Criminal Code inserted five years earlier which stipulated that judges must consider “alternative sanctions” before resorting to the imprisonment of Aboriginal people. Gladue's Principle was born. Gladue reports are pre-sentence accounts of the accused's experiences in court.
It is under this principle that a young woman who killed her unfaithful father saw her sentence reduced to two years in prison in 2018. The Quebec Court of Appeal ruled that Stacey Sikounik Denis-Damée had lived in a "pitiful family environment" and that the consequences of residential schools on the descendants "constitute historical and systemic factors which lessen her degree of moral culpability".
The EIOECs apply the same logic, but to black or “racialized” defendants. They first appeared in 2014 in Nova Scotia. Like the Gladue reports, these are presentations on the experiences of “racialized” people aimed at putting their crimes into perspective.
Last August, as the gun violence debate raged, a decision influenced by an EIOEC caused a stir in Halifax. Rakeem Rayshon Anderson, a black in his twenties who was intercepted driving his car with a revolver loaded at the waist, receives house arrest rather than the two to three years in prison demanded by the Crown. In his EIOEC, it had been argued that he felt unsafe because his best friend had been murdered. It was also written that carrying a gun is an "accepted cultural norm" in the area of Halifax where he grew up. “Many black men arm themselves not because they plan to go after someone, but rather because they feel the need to protect themselves.
It is from this decision that Ottawa was inspired to finance the pan-Canadian generalization of the EIOECs.
But has this path borne fruit and is it worth expanding?
The incarceration rate of Indigenous and Black people in Canada is staggering. Aboriginals make up only 4.7% of the Canadian population, but 32% of the federal prison population (and even 48% for women). Blacks are only 3% in Canada, but 9.5% in penitentiaries. One of the explanations is probably on the side of age. Crime is a youth affair. However, Aboriginals and Blacks are significantly younger than the Canadian average, with respective median ages of 29 and 30 compared to 41. But the main reason is systemic racism.
Despite 22 years of application, Gladue's principle has failed to stem the rise in Aboriginal detentions. This principle also disturbs the victims. In its final report, the National Inquiry into Missing and Murdered Indigenous Women and Girls called on governments to "comprehensively assess the impact of Gladue principles…on fairness in sentencing." related to violence against Aboriginal women”. Indeed, since violence is often intra-community, the victims of Aboriginal criminals are often Aboriginal too. How, then, can the Inquiry's desire that a victim's Aboriginal identity be considered an aggravating factor be accommodated if, on the other hand, the offender's Aboriginal identity is considered a mitigating factor?
In its Gladue report writing guide, the British Columbia First Nations Justice Council explains that one must consider whether the Aboriginal defendant has been affected by substance abuse in the family, by poverty, by chronic unemployment, by racism or even by a disintegration of his family or his community. Dare the question: how many white prisoners from the pre-gentrification lowlands of Hochelaga-Maisonneuve or Limoilou can also answer in the affirmative? Is their miserable experience less burdensome because it is less widespread in their racial community to which they belong? A trial serves to judge an individual, not to bring justice to his entire community.
This path taken by Ottawa threatens to undermine the already fragile popular support for Bill C-5 abolishing certain minimum sentences. This bill under study would give judges the latitude they need to punish less accused persons who have committed a minor version of an offense under the Criminal Code. If citizens come to think that it aims rather to modulate the sentence according
to the color of the skin, they could turn away completely.
Le droit
https://www.ledroit.com/2022/01/28/quand-la-justice-se-racialise-78272afa2c83ea16c5de99e8a61c271a
https://www.ledroit.com/2022/01/28/quand-la-justice-se-racialise-78272afa2c83ea16c5de99e8a61c271a
