Post #231

911 words; 4 minutes to read

Summary: Despite its envisioned role as a place for individuals who have committed crimes, the Canadian criminal justice system is one that disproportionately disadvantages the poor and marginalized, perpetuating disparities at various stages of the legal process.

By Emily Stewart, Associate Editor

When we envision prisons, what often comes to mind is a place designed to house individuals who have committed crimes – a system that serves justice and protects society. However, as many of our posts have shown, the Canadian criminal justice system is an institution that disproportionately penalizes the poor and marginalized.

Race and the criminal justice system 

There is a long-standing recognition that our justice system disproportionately affects Indigenous, Black, and other marginalized populations. As previous posts have highlighted, these communities face unfair treatment within the system, from encounters with the police to sentencing and parole practices.

Police: These communities are not only more likely to be confronted by police, but they tend to experience more negative outcomes from those interactions. They face a higher likelihood than white individuals of being arrested, jailed, subjected to use of force, and even killed because of a police interaction.

Courts: These communities are also notably affected by the pre-trial process. Not only do mandatory minimums disproportionally affect Indigenous and Black individuals, but they are also more likely to be denied bail. This is deeply troubling because the accused may be required to spend a year or more in custody as they await trial, often housed in some of the harshest conditions. The accused must watch their life pass by, risking job loss, time away from family, and ongoing financial strain due to legal fees without having been convicted of anything. In other cases, the prosecutors will offer to release a person immediately if they plead guilty since they have already been held as long (or in some cases longer than) the sentence related to the charge. This implication becomes even more alarming considering that about 40% of all criminal charges in Canada end without a conviction.

Prison & parole: These communities are also over-incarcerated and disproportionately represented in maximum-security institutions, disciplinary measures, use-of-force incidents, and involuntary transfer. They are also less likely to be paroled and more likely to serve a greater portion of their sentence in custody before being released. Research has also highlighted inadequate risk assessment measures for Indigenous people (which leads to an increased likelihood of being placed into maximum-security facilities), insufficient mental health services, a lack of Indigenous representation among staff, and ineffective Indigenous correctional programming. This is all alarming because, rather than enhancing societal safety, prison increases the likelihood that individuals will be charged with and convicted of a crime in the future.

The Illusion of equality 

A significant portion of criminal activities in Canada are primarily associated with non-violent offences, often intertwined with structural factors such as class, poverty, and economic needs.

Unhoused individuals, people experiencing addiction, mental illness and/or poverty are among the communities that often face the most intense scrutiny and surveillance by police, making them far more likely to be arrested.

These individuals not only face an increased likelihood of being denied bail, often due to perceived risk and a ‘fear of accountability,’ but may also experience heightened pressure to plead guilty. Even if released on bail, the accused will likely receive a list of conditions that they must adhere to, such as attending treatment, a curfew, and abstaining from substance use. While each condition alone may be manageable, adhering to multiple can feel extremely restrictive and, for some, impossible. These implications become even more alarming when we consider that administration of justice charges account for 22% of all criminal charges. And remember, these individuals are still considered legally innocent.

Society’s most marginalized and disadvantaged often end up being placed in our prisons. These individuals experience extreme isolation, excessive use of force, and receive minimal opportunity to do anything positive or valuable, such as educational and other types of programming. Not to mention, treatment for mental illness and substance use behind bars is ineffective. Time in prison often leaves people with further physical and emotional scars that they are often ill-equipped to deal with upon release.  And remember, most of those imprisoned will be released back into the community.

Only some harms are counted as crimes

It is important that we also take a step back and reflect on the types of wrongs that are considered crimes and those that are not. The discretionary nature surrounding who gets charged and the length of their sentences introduces significant variability – notably seen in the fact that white-collar crimes face less stringent charges.

As argued by American civil rights lawyer and social justice advocate Alec Karaktsanis, there are many crimes that, despite being more significant, are rarely treated as such, and these choices often have a lot to do with who has power in society. For example, it is illegal for individuals to wager over dice in the streets, but it is legal for wealthy people to wager on the global price of wheat, the value of international currencies, or mortgage securities. Not to mention, if all the crimes committed by police and prison guards were counted, the crime statistics that we so frequently see shared by the government and media might look rather different.

As other posts have pointed out, who is criminalized is often a different matter than who commits a criminal act. Reflecting on the intricacies of our criminal justice system raises the question, who is the system designed to control, and whose actions does it choose to overlook or even sanction?


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