Colour Conscious Justice: Towards a Colour Blind Justice System

Is the justice system blind to colour?

Jim Rankin and Betsy Powell of the Toronto Star pose this question in an article that is part of the newspaper’s series on Crime and Punishment. The series explores “the state of crime and punishment in Canada, including the social costs of mandatory minimum sentences, in a series of articles and, on-line at thestar.com, in video documentaries, interactive maps and timelines, and a game, where you are the judge”. After two years of fighting a freedom of information battle, the Star obtained and analyzed three sets of data, including details of criminal records and one-day data snapshots of federal and Ontario inmates sentenced to terms of more than two years and less than two years, respectively. A note on methodology and statistical background can be found here.

The article provides synoptic feedback from justice experts who seek to explain the Star’s statistical findings on race and crime. The statistics show that visible minorities charged with a crime are 47 per cent less likely to be convicted, but more likely to have warnings on their files, accessible by computers in police cruisers. Even without a conviction, a record of a criminal charge can remain for years in the Canadian Police Information Center Database (CPIC), which is reportedly accessed tens of million of times a year by a multitude of enforcement agencies and potential employers. The article also indicates that visible minorities are more likely to have samples of their DNA taken.

Attention in this analysis is placed on the first statistical finding (of lower convictions for visible minorities) and the corresponding first part of the article. The focus is on the language used by the legal experts, police and the reporters when talking about race. The following offers a critical reading of how legal discourse can obscure or imagine issues as they relate to race and crime.

A Note on Numbers

The figures mentioned in the article were obtained from the RCMP- administered CPIC database. To avoid stigmatizing communities, Canadian governments and police forces have opted, traditionally, to not distribute race and crime statistics. However, according to the Star this has led to abundant misconceptions by the Canadian public on what constitutes a criminal. For this, the efforts by the Star and the series’ team are laudable as they point out the necessity to bring these issues to light. This graphic showcases how Canadians underestimate the number of people with criminal records generally, and, more specifically, how they overestimate the number of visible minorities who have committed crime. More charts and graphics are available on the Star’s website.

A Note on Language

The data from CPIC, as they relate to and record race, utilize two categories of “white” and “non-white”. Aboriginal people are lumped in the “non-white” category. From the outset, this is problematic. Trite as it may sound, there is variety in “whiteness”, and that is demonstrated by the history of Canadian immigration policies. In fact, depending on definition, “white” can be seen as a system regardless of skin colour. However, CPIC’s most impressive shortcoming is the use of the denomination of “non-white”. It is troubling enough to be “classified” in relation to someone else, let alone in negation to them.

Crowned with quotation marks initially, without critical regard, the two categories repeatedly leap from the pages. To the reporters’ credit, they replaced “non-white” with visible minorities when providing their own analysis. The problem is that this would skew the prolific CPIC data. “Non-white” is barely skin deep and does not account for the nuanced difference that visible or minority suggest.

At the very outset, a judge, who refused to be identified, said that low conviction rates for “non-whites” (his words) can be explained as “rewards”; “if the ‘non-whites’ have spent more time than ‘whites’ in pre-trial custody”. Little is said in way of explaining his account or the reasons for his anonymity. The phenomenon may reflect the commendable colour blindness of judges on the bench at crunch time when giving a verdict. But this observation is a clear incrimination of the colour-bias of the police force and pre-trial judicial procedures. The reporters do note that, after the 1995 Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, it is no secret that “black accused, for example, are more often held without bail”.

Another explanation that should raise some eyebrows relates low conviction rates to over-charging in cases involving multiple non-white accused. The suggestion being, that gangs are predominantly “non-white”, and that over-charging “non-white” is a fact that does not seem worthy of further investigation by the reporters.

Another explanation was the over policing of poorer neighborhoods, which are largely populated by low-income people of colour. This fact should not be read in isolation as a numerical account. This situation results from Canadian immigration policy procuring skilled and educated immigrants and a Canadian labor market and settlement policy that disenfranchises “foreign” expertise, skill and education.

In his response, Toronto police chief Bill Blair, president of the Ontario Association of Chiefs of Police, dismissed the defence lawyers’ theories as “quite predictable,” for nothing more than the fact that their role is to “obfuscate” and one way to do that is to “undermine the credibility and confidence the criminal justice system would have in the police”.

While plentiful in a later article on “Solving crime? Tackle the root causes first”, a lot of the issues, whether political, systemic, social or economic, involved in such an important study were not expounded nor highlighted. The legal experts shied from connecting the larger forces at play in Canada with racial discrimination. However, it is great that the Star is taking on the task of critically reviewing the processes and effects of the Canadian Criminal Justice System. It is invaluable to have the media and the public hold the system accountable or at least expose its shortcomings and sometimes outright failings. If anything, the article should be a rallying call to question how Canadians, lawyers, police and judges react, read and interpret race, if only to have accurate information and to hopefully effect change. For in order ensure that our Justice System becomes blind to colour, we need to make sure that our legal debates and public policies are anything but.