Advancing justice: How racism and poverty degrade human rights and undermine the criminal justice system

In 2021 and 2022, Maytree explored the relationship between human rights, poverty, racism, and the criminal justice system. To deepen our understanding, we had conversations with and published contributions by researchers and practitioners, as well as individuals with lived experience. The result was “Advancing justice,” a series of articles and podcast interviews published on the Maytree website.

The contributors surfaced a number of critical themes. The following summarizes these themes, and we encourage you to listen to the podcast episodes and read the articles for deeper insight into the issues, and how these issues are interconnected.

Current state of the Canadian criminal justice system

The Canadian criminal justice system is complex, with various levels of government involved in its oversight and operations, multiple actors, and processes that are difficult to navigate for most individuals, especially without legal guidance. This results in many points of vulnerability for Indigenous, Black, and racialized individuals and families, further heightened when poverty is also a factor.

Many groups, including community-based organizations, advocacy groups, and human rights bodies, have exposed systemic racism within the various components of the criminal justice system. It can be found at every stage of the criminal justice process, such as police surveillance and interaction, arrest, charges, bail and remand, sentencing, conditions of incarceration, and release. In real terms, it means that Indigenous, Black, and other racialized persons in Canada receive unequal treatment before the law and that their human rights are not being met.

Poverty, including lack of access to funds and lack of social capital, is another factor that creates vulnerability. It means that individuals and families who get caught up in the criminal justice system are less equipped to navigate the system and less able to mount appropriate defenses. Statistics in Canada have consistently demonstrated that there are high levels of poverty among Indigenous and Black communities. This reality results in higher levels of remand and incarceration for Indigenous and Black individuals as well as others impacted by poverty. Poverty also means that bail, probation, and parole conditions are more difficult to comply with, increasing the probability of re-arrest.

A history of discriminatory practices and existing systemic racism in the criminal justice system have led to a significant erosion of trust in and alienation from the system by many members of racialized communities. Given the various levels of government and the many actors involved in the governance and operations of the Canadian criminal justice system, there are no clear points of accountability for the current conditions or for the change required to ensure human rights are upheld.

There is also an increasing awareness of the concept of “pipelines to prison” in Canada. When rights to education, housing, and health care are not equally attended to by governments and publicly funded bodies, conditions are created which are directly connected to vulnerability to involvement in the criminal justice system. For example, discriminatory practices against Indigenous and Black children and youth in the public education system are a catalyst for later involvement in the justice system. These practices include suspensions and expulsions, streaming of students into courses of study that will not lead to college or university, and higher levels of reporting to police and child welfare agencies. As well, Indigenous and Black families are at higher risk of involvement in the child welfare system, which can also act as a catalyst to later involvement in the criminal justice system. Furthermore, precarious housing and lack of access to community and health supports, including mental health and addictions supports, add increased vulnerability.

Special attention needs to be paid to Indigenous people and the criminal justice system. Despite decades of legislative change that introduced Gladue processes intended to decrease the incarceration of Indigenous persons, there is a steady increase in rates of incarceration. Incongruously, these legislative changes have not only not addressed the issues, but the Gladue processes themselves may be used as tools for denying parole and extending lengths of incarcerations.

Opportunities for moving forward

As part of the “Advancing justice” series, Maytree invited researchers and practitioners to also identify opportunities to achieve a more responsive and equitable criminal justice system, with a focus on respecting, protecting, and fulfilling human rights. They identified a number of ideas and opportunities.

Given that the first contact of community members with the criminal justice system is typically through police interaction, there has been significant discourse on the role of police. Community-based approaches to addressing mental health, addictions, and homelessness emergencies, as an alternative to police involvement, is a promising practice, already proven effective in jurisdictions outside of Canada. The City of Toronto is now piloting such a community-based approach. Other communities in Ontario have used a “situation table” approach to decrease the use of police intervention in mental health, addictions, and other social emergencies. At the same time, there is an ongoing need for police officers to use their discretionary diversion powers to avoid arresting and charging individuals for minor incidents.

Race-based data in all components of the criminal justice system is key to moving forward. Statistics Canada and the Canadian Association of Police Chiefs have begun working with the policing community and key organizations across Canada to enable police to report statistics on Indigenous and racialized groups in police-reported crime statistics on victims and accused persons.

Ensuring the correct supports to vulnerable youth and adults who appear in court, appropriate diversion is a legislative tool that can decrease the number of youth and adults in remand or incarcerated. In this regard we can point to seminal work in Ontario and in Nova Scotia using enhanced pre-sentencing reports to ensure that the courts have a full contextual understanding of the individual who is being sentenced. In addition, mental health courts and Gladue courts have had some success in reducing inappropriate involvement in the justice system. Furthermore, Ontario is piloting a “Justice Hub” model in four sites. Justice hubs bring together community programs and supports right to the court setting to create new paths for persons whose involvement in the criminal justice system is best addressed through diversion.

Despite some promising practices in components of the criminal justice system, more needs to be done to address the pipelines that contribute to vulnerability to involvement with the criminal justice system. Collaborative, inter-sectoral, and inter-governmental approaches are required for addressing the upstream issues that create such vulnerability.

Collective attention needs to be paid to housing, health, and educational equity. The right to education needs to be fully operationalized in publicly funded educational systems to eliminate discriminatory practices and equitably address the needs of Indigenous and Black youth. Child welfare systems need to ensure that their interventions are not creating increased susceptibility to involvement with the justice system.

Collaborative, community-based interventions in addressing pipeline issues needs leadership from trusted community members in order to engender and develop trust.

Key considerations for moving forward

Poverty lens

Understanding and acting on the root causes of poverty, including how poverty and racism are systemically interlinked, is key to reducing vulnerability to involvement in the criminal justice system.

Establishing legitimacy and trust with Indigenous, Black, and other racialized communities

At the same time, the criminal justice system must work to re-establish its legitimacy with all communities in Canada, especially those from Indigenous, Black, and other racialized communities. The consistent collection and public dissemination of race-based data across the various components of the criminal justice system is fundamental for moving forward. The COVID-19 pandemic experience has exposed and has further exacerbated deep inequities in society. These include economic, housing, educational, and health inequities, among others. But the pandemic has also taught us that when race-based and neighbourhood data are available and analyzed, swift and targeted action can take place.

Emphasis on risk to already vulnerable individuals, families, and neighbourhoods

The consideration of “risk” in the criminal justice system is not balanced. There is a heavy emphasis on risk as it has to do with perceived “risk to the community” or “risk of reoffending.” These types of risk are heavily emphasized by media and government officials that have a tough on crime agenda. Decisions that are made by the criminal justice system which affect individuals are based on assessments of these types of risk. But there is insufficient emphasis on the risks to individuals, families, and neighbourhoods. Persons who live with risk and vulnerability on a daily basis, due to poverty and racism, are the ones who most easily become mired in the criminal justice system. Decisions made about them – for example whether to arrest or charge; whether to grant bail and under what conditions; or what type of sentence they will receive – often neglect the risk that these decisions will inevitably have on them as individuals, on their families and their children, and on their neighbourhoods.

Critical nature of race-based data and analysis

Race-based data from various aspects of the criminal justice system (e.g., policing, courts, and corrections) coupled with neighbourhood and socio-economic data would allow for richer analysis and targeted action. This includes the dissemination of raced-based youth justice data, a simple solution which is apparently the subject of intergovernmental dispute.

Rich data analysis could also assist community organizations advocate for change, deepen the capacity for holding the criminal justice system accountable to communities, and support intersectoral and inter-governmental dialogue and action. Capacity for rich analysis and public communication of data implications needs to be developed.

Integrating voices of elders and those with lived experience with the criminal justice system

Also key to moving forward is integrating the voices of elders and those with lived experience in the development of solutions. Both individuals and communities need to have opportunities to share their stories and insights. There were two occasions in the process of creating the “Advancing justice” series where we were able to talk to individuals with lived experience. Each of them had key insights to share about what was really broken in the system. This included discrimination in police interaction, issues with bail and remand, and concerns regarding treatment while incarcerated and when discharged from incarceration.

As we were reminded at various times during the production of the “Advancing justice” series, it is not just about data and conceptual issues. It is about the lives of individuals and their families and communities. This is about the “injustice of the justice system.” The interrelated issues we examined have real consequences for poor and marginalized individuals who are caught up in the system and for their families, often meaning a lifetime of barriers and blocked opportunities, resulting in further marginalization and poverty. Furthermore, these issues have gutted the trust in the criminal justice system on the parts of many equity-deserving communities. The erosion of trust in the system has real consequences for the day-to-day lives of entire neighbourhoods of Indigenous and Black people who are fearful of being noticed (and targeted) by police despite having done nothing wrong.

Political will and decisive leadership

Advancing justice will require real change to not only address the injustices of the justice system, but also to remedy the societal conditions that act as pipelines to prison, and to create trust in the system. Creating trust in particular is vital and urgent, especially at a time when many of the democratic institutions we have taken for granted in Canada and around the world appear to be under attack. Through the series, we have become aware of various ways in which communities and advocacy groups are working to change the system: these efforts need to be championed and replicated. But to achieve real and sustained change, decisive leadership and political will from those in positions of authority, in governments, and in the criminal justice system, are absolutely critical.

Read all articles in the “Advancing justice” series

• Advancing justice: Human rights, poverty, racism, and Canada’s criminal justice system
  The criminal justice system – from police to courts to prisons – is intricately tied to our economic and social rights. Failure to fulfill these rights creates poverty, giving rise to and deepening cycles of marginalization and vulnerability. All this, of course, is exacerbated by systemic racism.
• Understanding the impact of racism, colonialism, and poverty on Canada’s criminal justice system
  In a conversation with Maytree president Elizabeth McIsaac, Professor Akwasi Owusu-Bempah explores the historical roots of racism in the criminal justice system.
• Race-based data in the criminal justice system
  Mai Phan writes about the importance of collecting race-based data in the criminal justice system, and about the conditions that need to be in place before we collect and use race-based data to inform the work of achieving public safety and justice.
• Beyond gatekeepers: Fostering accountable justice
  Sabreena Delhon writes about why this is such a crucial time to advocate for major overhauls to key components of the justice system.
• “Guilty until proven innocent”: Tyrone’s story
  Tyrone talks about how his interactions with the criminal justice system began at the age of 13, when he was illegally stopped by the police in the community. At age 15, he was charged, arrested, and held in remand because the police mistook him for another Black youth. Now, as a young man, he’s looking to share his story and give back to his community.
• Expanding the talent pool: Why the criminal justice system needs more diversity and inclusion
  Tanya (Toni) De Mello, Assistant Dean for Student Programming, Development and Equity at the Lincoln Alexander Law School at Ryerson University, and Harsimran Sidhu and Kaylee Rich, both students at the law school, talk about the barriers obstructing access to justice for Indigenous, Black, and racialized people.
• Rethinking community policing: Civilian partners in public safety
  Akwatu Khenti, Assistant Professor at the University of Toronto’s Dalla Lana School of Public Health, argues that community-led health and safety initiatives can optimize public safety.
• Confronting anti-Black racism through the courts, community activism, and government action
  Anthony Morgan talks about the issue of anti-Black racism in the criminal justice system in Canada and the role of municipalities in confronting anti-Black racism.
• Indigenous Peoples and the injustice of justice
  Using data, storytelling, and history, Laura Arndt explains why the criminal justice system is still in a state of crisis as it relates to Indigenous Peoples, and what can be done about it.