Challenge Paper on Justice and the Intersections of Diversity
CHALLENGE PAPER ON JUSTICE
AND THE INTERSECTIONS OF DIVERSITY
Delphine Nakache[1]
What is the scope of this policy area?
In a broad sense, issues related to justice include almost all areas of policy: from access to housing to work to medical care. This challenge paper will focus on issues that have not been addressed in other challenge papers (eg. Housing, Labour Market, Education, Health, Culture, Information and Knowledge), and will discuss questions regarding the federal government and the criminal justice system itself. These include conflict resolution, access to justice and relationships between communities, violence and crime.
The goals of this challenge paper are to identify the critical issues concerning this area of policy as well as the gaps that exist in our knowledge and to specify where and how scarce resources should be allocated.
What are some key policy issues?
Access to justice
Access to justice includes a range of mechanisms and methods by which individuals are able to get legal information, access legal services and resolve disputes, and thus take advantage of rights, protection and entitlements under the law. Access to justice is crucial to the proper functioning of civil society. At present, there are many barriers impeding full access to the legal system for immigrants and ethnocultural minorities, ranging from lack of information to lack of adequate resources to linguistic barriers and cultural practices that enter into conflict with Canadian law (eg. arranged marriages for women). In some communities, there are also barriers to the development of viable relationships with the police.
Further, although access to legal aid and proper legal representation are inextricably entwined with the issue of access to justice, particularly within an adversarial system, the costs of engaging the legal system are prohibitive for many. Drastic changes and reductions in the amount of legal aid certificates issued, along with less hours allocated to certificates, have led to severe consequences in many areas of law. The inaccessibility of the legal system is intensified in immigration and refugee matters as there are often language and cultural barriers that make it impossible for new Canadians to effectively interact with the Canadian legal system.[2]
In brief, due to the lack of substantive quality in the system,[3] all individuals are not provided with an equitable outcome. A key challenge is thus to identify the specific barriers that impede access to justice for such communities in order to then propose solutions. Some suggestions include more culturally-sensitive and accessible Public Legal Education and Information to enable a knowledge of justice by immigrants and other vulnerable groups, building healthy communities, and establishing relations between the key stakeholders.
The victimization of immigrants and ethnic minorities
A great deal of public, government and media attention has focused on criminal offences by specific immigrant and/or ethnic groups. Far less attention, however, has been placed on the victimization experiences of immigrants and the members of specific ethnic minority groups. Victimization can be defined as recurrent, objectionable or negative actions aimed at people of a certain group in an offensive manner that can result in those persons being excluded from society.
Immigrants are in a vulnerable position where they can easily become the victims of crime: poverty, inadequate housing, lower levels of education, discrimination and lack of legitimate economic opportunity, risk of deportation for permanent residents, language barriers, and misperceptions of Canadian law can all have an impact. Some immigrants will also be placed in a position of not reporting crimes or not assisting in investigations of crime because they are afraid to contact their local police; they worry, for example, that they would not be believed, or would be themselves arrested. They are also easy targets of criminal offences motivated by hate, prejudice or bias.
Intersections come into play here, with some immigrants and ethnic minorities, including families, women, persons with disabilities and youth, being at a particularly high risk for becoming victims of crime. There has been much work done on spousal violence and immigrant women, for example. For vulnerable groups, the fear of a possible crime is such a significant part of daily life that it could be seen as a mental health issue.
Important questions that arise from these findings include:
1. Are some ethn-racial groups more likely to be victimized than others? What is the impact of criminal victimization on the members of immigrant and/or ethnic minority communities? Are recent immigrants more or less likely to report victimization experiences to the police? If so, why are members of certain ethno-racial groups less likely to report their victimization experiences to the authorities?
2. In this context, it is also important to ask to what extent bias or discrimination explains the over-representation of certain immigrant groups in the criminal justice system (the Bias Model, which is explained more fully later on), and to question whether, and how, theoretically-driven research findings can impact government crime prevention policies.
These types of discrimination and victimization open the door for an infringement of immigrants' civil rights and racial profiling and reveal the importance of determining whether individuals who have been victimized directly – or as witnesses -- have different needs with respect to legal services.
Human trafficking
Until recently, among specialists on the subject, there has been considerable disagreement about the adequate definition of trafficking in human beings. In December 2000 the Criminal Commission of the United Nations passed the Convention against Transnational Organized Crime. A protocol of that Convention deals exclusively with trafficking in persons. According to the UN-protocol trafficking in persons:
"a) shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving and receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
"b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) shall irrelevant where any of the means set forth in subparagraph (a) have been used.[4]
A key challenge is to know the extent of human trafficking in Canada, who profits from it, how trafficking impacts people, who is involved in these transactions, what types of problems trafficked populations face and how human trafficking can be identified and eliminated. This criminal activity is very important because it influences many of the issues law enforcement agencies and other departments face in developing policy (RCMP, Criminal Intelligence Service Canada, Department of National Defence, Canadian Security Intelligence Service, Canadian law enforcement, as well as provincial and municipal police forces). There are human rights, social, health, legal, security and economic implications associated with trafficking. In the case of women and children, in particular, it is necessary to determine the level of human trafficking and to establish the dynamics of this crime.
Intersections of identity markers on which research presently exists
Although research that examines intersections of diversity is not extensive, some does exist. For example:
Gender and other identity markers
Gender and age. Young males continue to account for a majority of conventional crimes in the society, although some research reveals increasing juvenile female arrests and the involvement of girls in at-risk and delinquent behaviours.[5]
Gender and sexual orientation. Many studies have dealt with the rights of same-gender couples to freely choose their intimate partners and their legal relational status, and to marry without penalty from the state or without financial inducement to abandon their choices.[6]
Gender and ethnicity and/or socio-economic status. Some studies deal with Aboriginal males and females in criminal justice system. Prior to the Second World War, Aboriginal prison populations were proportionate to their numbers in the Canadian population. Since that time, Aboriginal representation within the judicial system has increased and continues to grow. Aboriginal people are incarcerated, usually for crimes related to social disorder rather than profit (ie. for violence rather than burglary or fraud), at a disproportionately higher rate than non-Aboriginal people. The situation demonstrates the inequalities in Aboriginal offender programs and services and points out clearly the need for alternative forms of incarceration, restorative justice programs, staff training and sensitivity to Aboriginal culture. The disproportionate levels of Aboriginal offenders in federal and provincial institutions can, in part, be attributed to the poor economic base of Aboriginal communities and the low number of Aboriginal people involved in correctional and judicial policy-making programs. Statistics indicate that Aboriginal offenders represented 11.9 % of the male and 16.7% of the female offender population in Canada in 1992-93 (11.9 % males and 16.7% females).[7]
Intersections where further research is required
Ethnicity, race and other identity markers: explaining the immigration-crime relationship
The intersection between immigration status, race and ethnicity remains a troubling gap in the literature. The foremost methodological problem is that, in Canada, there is no systematic collection, dissemination, or analysis of crime data which contain the ethnic or racial origin, or place of birth of the accused or the convicted. Some argue that such data would be misused to impugn immigrants. These data are needed, however, to answer the following pressing questions: 1) Are immigrants more or less involved in crime (as both victims and offenders) than citizens who are born in Canada? 2) Are certain racial-ethnic groups more or less involved in criminal activity than other groups? 3) Is the relationship between immigration, ethnicity and crime changing? Only by answering these questions can we begin to explore explanations for any observed relationship between ethnicity and crime and subsequently develop effective government policy.[8]
There is consequently an urgent need for more and better information on the link between immigration, ethnicity, race and criminal behaviour.
The Bias in the Justice System Model:
This is one important model, among several others, used to explain the possible relationship between immigration, ethnicity and crime. Proponents of the Bias Model argue that there is not a strong or consistent relationship between crime and either ethnicity or immigration status. Certain ethno-racial groups, however, may be over-represented in official crime statistics because of systemic discrimination within the criminal justice system (from arrest through prosecution, trial, conviction, sentencing, and parole).[9] Greater research on attitudes of people within the justice system thus needs to take place.
The question of how police interact with ethnic youth and how youth interact with police is also a very important one. Canadian researchers surveyed 3,400 high school students and 400 street youth in the Toronto area between December 1998 and May 2000 on issues ranging from experiences of victimization and perceptions of Toronto's youth crime problem to participation in gangs.[10] The survey revealed that black students, engaged in crime or not, are more likely than others to be subjected to random street interrogations. Good behaviour does not, therefore, protect black youth from unwanted police attention to the same extent that it protects white students. Furthermore, because blacks are subject to greater police surveillance, they are much more likely than white people who engage in the same forms of criminal activity to be caught when they break the law. Being stopped and searched by the police is experienced by black youth as evidence that race still matters, even though stereotypes that lead to racial profiling tend to develop within the informal police subculture, not as part of official policy. In addition, research has found that immigrants’ relationships with police differ depending on race. For example, distrust of the police and the transfer of anti-police attitudes varies; Spanish, and black people are more likely to distrust police, whereas south east Asian and south Asian people have a more positive attitude. There is therefore not a simple distinction between the attitudes and perceptions of “white” people and the attitudes and perceptions of “others.” As a result, targeting action on the basis of a perceived difference between Caucasians and non-Caucasians is misguided. The distinctions are more subtle and complex.
Another recent Canadian study suggests that some racial minority groups are much more likely to be detained before trial and receive harsher sentences upon conviction than their Caucasian counterparts. Most people charged with simple drug possession were free to go home, on a promise to appear in court and at a police station. Whites were released on the scene 76.5 per cent of the time while Blacks were released only 61.8 per cent of the time. The difference in treatment was even more apparent at the next level of police decision-making. Of those taken to the station, blacks were held behind bars for a court appearance 15.5 per cent of the time, while whites were kept in jail awaiting a bail hearing in only 7.3 per cent of cases[11].
The Other Models[12]
According to the Importation Model, an undetermined number of immigrants and refugees are motivated to commit crime before they enter the host country. Research could try to determine the best ways to deal with Canada's security needs without alienating "legitimate" immigrants or creating further barriers in the integration process. Measures could include improving the identification of criminals before they enter the country or developing methods to monitor recent immigrants for signs of organized criminal activity. But, as Scot Wortley points out, it seems to be very difficult to increase security and surveillance of the Country without creating an atmosphere of intolerance and distrust.
Unlike the Importation Model, the Strain/Frustration Model maintains that immigrants come to Canada with good intentions but their difficult experience of immigration and assimilation brings them into conflict with the criminal justice system. Research focuses on the difficulties faced by immigrants and how these difficulties can sometimes lead to criminal behaviour.
The last model is the Cultural Conflict Model, which says that some immigrants come into contact with the Canadian justice system because they engage in culturally-specific practices or behaviours that are legal in their country of origin, but clash with the law in Canada (eg. domestic violence, arranged marriages). Research in this area, therefore, could focus on those groups who might violate the Canadian legal system and find ways to prevent such violations.