Justin Trudeau – Tackle systemic discrimination in Canadian courts, Justin Trudeau tells justice minister
In a new mandate letter from the prime minister, Justice Minister David Lametti has been tasked with bringing in reforms to combat the overrepresentation of Indigenous and Black people in the criminal justice system.
Will the government succeed?
Given the Liberals’ track record on justice reform over the last five years, there is little optimism that this new priority will lead to meaningful change, critics say.
For true reform to happen, the government will need to make changes that are evidence-based and backed by sustained funding, they say.
“The over-incarceration of Black and Indigenous people has been offensively high for decades, so this wasn’t something that came as a surprise,” said Daniel Brown, vice-president of the Criminal Lawyers’ Association.
“And yet rather than enacting laws over the last five years (the government) has been in power to address these concerns, they’ve been distracted by other justice initiatives that didn’t need tweaking.”
The mandate letter from Prime Minister Justin Trudeau, released in January, outlines priorities that are in addition to priorities already included in Lametti’s previous mandate letter from 2019. These include the creation of an independent commission to review potential wrongful convictions.
The top priority in the new mandate letter instructs Lametti to introduce legislation and make investments “to address systemic inequities in the criminal justice system,” recognizing that the system disproportionately impacts Indigenous and Black people.
“Indigenous peoples and Black Canadians experience systemic discrimination and disproportionate outcomes at all stages of our criminal justice system. They are also disproportionately represented as victims of crime,” said Lametti’s spokesperson Rachel Rappaport in a statement to the Star.
“We have a responsibility to take a hard look at the many factors that contribute to this and take concrete action to end it.”
In 2015, the same year the Liberals were elected, Indigenous people represented 24 per cent of the federal inmate population, despite Indigenous people making up 4.3 per cent of the Canadian population. The proportion of Indigenous people in prison surpassed 30 per cent in 2020, according to Canada’s correctional investigator.
Black people represented 7.2 per cent of federal offenders in 2018-2019 according to the government’s latest statistics. About 3.5 per cent of Canadians identified as Black in the 2016 census.
Among other things, Lametti’s new mandate letter highlights promoting the use of “pre- and post-charge diversion,” which can include counselling or community service that individuals can access instead of being formally charged with a criminal offence or instead of being prosecuted.
Lawyers and academics have said diversion is crucial so that more people can avoid having contact with the justice system.
While the actual management of diversion programs is a provincial responsibility, University of Toronto criminologist Akwasi Owusu-Bempah said the federal government could provide sustainable funding to allow these programs to grow, which he said should be culturally appropriate.
Criminal defence lawyer Annamaria Enenajor said the problem now is that diversion is at the discretion of the police or prosecution. She said the federal government should make it mandatory for certain offences, such as minor bail breaches, which tend to clog up the system.
“The government’s record for passing legislation that has resulted in transformations that have meaningfully improved the lives of Indigenous People and Black people has not been good,” she said.
“Their legislation are a political compromise and attempts to pander to various special interest groups and knee-jerk responses to unique flashpoints of public outrage that are the subjects of news stories of the day.”
As an example, she pointed to changes the government made to jury selection rules in the wake of the Gerald Stanley trial in Saskatchewan in 2018. Stanley, a white man, was acquitted by a jury of second-degree murder in the shooting death of 22-year-old Indigenous man Colten Boushie.
Media reports at the time said that the defence was using what were known as “peremptory challenges” to dismiss any potential juror who appeared Indigenous.
Peremptory challenges allowed both Crown and defence lawyers to dismiss a certain number of potential jurors during jury selection without having to give a reason. After the Stanley acquittal, the federal government abolished the challenges.
Organizations representing racialized lawyers have argued the change actually makes it more difficult for a person of colour to get a fair trial by jury.
They point out that people of colour accused of a crime often used the challenges to help ensure people with perceived biases didn’t make it on to the jury that would ultimately decide their fate — in a system where jury pools remain significantly white.
(Lametti’s office pointed to its jury selection changes as a positive step to making juries more representative of the communities they serve.)
Critics also point to the Liberals’ failure to repeal mandatory minimum sentences, which they argue has led to the over-incarceration of Black and Indigenous offenders.
Sentencing reform is also highlighted in Lametti’s new mandate letter; the justice minister has previously said the government is “committed to advancing sentencing reform that will stand the test of time.”
“The fact that the government hasn’t repealed those mandatory minimum sentences raises questions about the extent to which it’s serious about tackling systemic injustice in our justice system,” said Owusu-Bempah.
“Repealing those mandatory minimum sentences would send a message that the government is serious about addressing systemic inequalities in our justice system.”