Addressing racial injustice

By the numbers alone, it's hard to ignore the systemic racism baked into Canada's justice system.

Indigenous people represent 27 per cent of federal inmates while accounting for five per cent of the overall population of Canada. Black and Indigenous people are more likely to be charged with crimes that carry mandatory minimum sentences. Racialized representation on juries is sorely lacking. Courts are still predominantly presided over by white men.

Now the global protests against racism triggered by the killing of George Floyd in Minneapolis in May have heightened demand for changes in policing and criminal justice and put new pressure on our governments to act.

Obviously, there's no substitute for lawmakers and government leaders committing to taking definite action.

In the meantime, it's noteworthy that we're beginning to see signs emerge of a Supreme Court more forcefully tackling issues of racial justice in its rulings lately. But can the court really have a meaningful impact on the workings of our criminal justice system?

In the past year, the top court handed down decisions in R. v. Le and R. v. Ahmad, two cases at the intersection of race and policing. In the former, the court found that racial profiling offended Canadians' section 9 right to be free of arbitrary detention. It also engages s.24(2), which forbids evidence obtained by means that would bring the administration of justice into disrepute. In Le, the majority court plainly recognized the "common and shared experience of racialized young men: being frequently targeted, stopped, and subjected to pointed and familiar questions."

In Ahmad, the court devised a reasonable suspicion test for so-called "dial-a-dope" operations designed to prevent profiling, especially on race.

Kyla Lee, who practises criminal law in Vancouver, says she has noted a turn "focussing on racialized perspectives and Indigenous issues lately from the Supreme Court of Canada."

These cases don't come out of thin air, Lee says. "The SCC is aware of institutional racism, but they can't take it upon themselves to ask the questions." She attributes some of the increased scrutiny of these sorts of practices to a "younger and more woke bar."

Promise Holmes Skinner, who practises criminal defence in Toronto and North Bay, echoes the sentiment that the top court has shown more of a "wokeness and willingness" to engage thoughtfully on these issues over the past decade.

"The difficulty is that they need the right case, where those principles are engaged," Lee says. In Le and Ahmad, she says, the police techniques in question were front and centre, "with systemic discrimination as a background that allowed the arguments to find footing."

Holmes Skinner has written at length about Ewert v. Canada, a 2018 ruling in which the Supreme Court found that an inmate's Indigenous identity is a factor when it comes to security classifications. "The Supreme Court's strong words about Corrections' obligations to Indigenous offenders is helpful to inmates who challenge decisions made about them," she wrote, referring to the Correctional Service of Canada.

The drumbeat of these cases is, however, ultimately decided by which cases can, in fact, reach the Supreme Court. It takes individuals willing to go to trial, with enough resources to appeal, over matters that can attract interest and involve intervenors.

But as Alberta criminal lawyer Meryl Friedland wrote on ABLawg, the Le ruling sends a message that trial judges need to be more mindful of racial profiling and address it head-on even when there are easier ways to decide the case. "The Le decision is a push to all counsel and the judiciary to take a hard look at the cases that are coming before them, and to recognize that the criminal justice system has been far too complacent in letting this police misconduct go on for years without remedy."

Of course, not every case reaching the Supreme Court and that engages race and Indigenous status is bound to advance racial justice. Holmes Skinner cites the 2015 decision in R. v. Kokopenance, calling it "a failed opportunity by the SCC to address systemic racism."

In Kokopenace, the court grappled with Indigenous representation on jury rolls. In keeping with past decisions, it held that courts should not allow jurors to be struck because of their race or Indigenous status. But it also concluded, "there is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society."

Holmes Skinner was counsel for the Advocates Society in that 2015 case. "It was a painful experience as a young lawyer and an Indigenous woman," she told CBA National. "I kept asking myself if they had forgotten about their decisions in Gladue and Ipeelee," which affirmed principles of Aboriginal sentencing.

Even still, Holmes Skinner and Lee both point to a slew of cases coming forward, on conditional sentencing, jury selection, stays of proceeding and the credibility of witnesses. In each case, the Supreme Court will have a chance to tackle those issues.

Lee says the credibility question is a big one. "If you're looking for big commentary from the SCC, credibility assessment of witnesses and racial tensions might be a fruitful area."

But with the outcomes so drastically different, both lawyers pointed to the unrealized promise of R. v. Gladue. The decision, which requires courts to assess an offender's Indigenous status as a factor in sentencing — and which was subsequently supported by a Criminal Code amendment requiring the Crown to assess those factors fulsomely — is now more than two decades old. Repeatedly, concerns have been expressed that the decision was never fully implemented.

"I recently argued a case where the Crown suggested my client's Gladue factors were irrelevant because he didn't have the stereotypical outcomes like alcoholism, sexual abuse, etc.," Lee says. "It was awful and painful for him, his family, and me, as an Indigenous person, to hear the way the Crown was effectively ignoring the point of the case and whitewashing — literally — his experiences."

The Gladue principles lack teeth, she says, adding that "there is a lot of case law that eliminates some of the benefits an offender could take from it."

Holmes Skinner worked at Aboriginal Legal Services overseeing the Gladue Report program. Generally, she says, it worked. Restrictions on conditional services and mandatory minimums, however, "take the life right out of s.718.2(e) — the provision designed to fix the very issue these two things exacerbate: over-incarceration.

"Parliament could actually do what it committed to years ago and lift the restrictions on conditional sentences and remove mandatory minimums," says Holmes Skinner. "But we won't hold our breath."

Lee agrees "that Parliament will never really address the factors that need to be considered in Gladue."

The top court revisited these issues in R. v. Ipeelee — a decision that meant a lot to Holmes Skinner. It came in 2012, the same year she finished law school. That decision was "when it seemed like the whole world started to finally shift alongside me, and start caring about the horrors suffered by Indigenous communities in this country," she says.

Holmes Skinner sums up the top court's message in Ipeelee: "Remember everything we said in 1999 in Gladue? Yeah. We meant it. Now go do it and do it right this time."

And yet every year, the number of Indigenous inmates in federal penitentiaries increases.

One case on the horizon, however, promises to breathe life back into s. 718.2: R. v. Morris.

Even though it has yet to be heard before the Ontario Court of Appeal, the case is being talked about as a Gladue case for all racialized people. In it, defence counsel submitted a body of evidence outlining how systemic racism ought to be considered a factor in sentencing. The Ontario Superior Court of Justice took that evidence and concluded bluntly: "Black Canadians present experiences that are rooted in our country's history of colonialism, slavery and segregation." The outcomes of that system are "cyclical and compounding," the court wrote.

"Is it right that we harshly deter and denounce the conduct of people who have been subject to such injustices by giving them stiffer sentences?" Justice Shaun Nakatsuru asked in his ruling. "Is it right to denounce their conduct when that conduct was constrained in choice; a constraint that was inequitably imposed upon them?"

Justice Nakatsuru relied on those reports to deliver a very individualized sentence to the offender. What will likely be decided on appeal, and perhaps before the Supreme Court, is how codified such an individualized assessment should be. The Crown has submitted that any such test should incorporate specific and individual evidence of such racism in their own life.

Nader Hasan, who is representing the David Asper Centre for Constitutional Rights in their intervention in Morris, makes the case that the courts need to recognize the context in which the legal system exists. That means asking whether "laws, policies, programs, or the operation of judicial discretion correspond to the particular needs and circumstances of a group, or perpetuate disadvantage." To that end, Morris asks the court to recognize that "positive measures are necessary to improve equality of opportunity and ensure equal benefit of the law and equal protection from the law," as Hasan writes.

There's no real reason why such a test couldn't be imposed. "Sentencing is supposed to be a 'highly individualized' exercise," Lee points out. "Which means there is a ton of room for the SCC, or any court, to craft their own test for the consideration of systemic factors at the sentencing stage."

This sort of shift could be monumental. As Holmes Skinner points out, the section of the Criminal Code which implemented the Gladue reports (s.718.2) says the court should seek "all available sanctions" reasonable in the circumstances for Aboriginal offenders in particular, but not exclusively.

"When courts engage with this part of the code meaningfully and apply it properly, it works," she says.