SHORT SUMMARY

Aboriginals
Outlawing the Sundance and Potlach
The Stuggle for Survival (L. Violette) and Senseless Drumming and Dancing (B Titley) Traditions of the aboriginals were outlawed by gov under the Indian Act of 1884 Gov argued that it lead to debauchery and idleness: their protestant work ethic didnt understand the culture and traditions of the ABs It was really a way of using Criminal Law to further colonialism outlawing the potlatch undermined the communities governance practices as the potlatch was used to create new laws and rules

Killing of The Shaman-Fiddler and Stevens

trial of tribe chiefs for the murder of a woman the believed to be possessd Another example of where criminal law used to exert control and further national and colonial objectives (early murder trials in general) Fairness issues at trial: AB people didnt know the white man rules but were not exempt from them, judge presiding over the trial was also a police officer, leading of the jury address.

Speech by Justice Sinclair-GOOD

Natives are the single largest group represented in the CJS in Western Canada problems stem from our systems failure to account for their customs and traditions CULTURAL ETHNOCIDE (see articles above for examples): we dont do this with malice but with a general belief that assimilation is best. ETHNOCIDE will continue unless we being to look to AB communities for answers to the problem. Systemic Discrimination exists (i.e appears neutral but isnt because CJS doesnt accommodate)ABs have trouble understanding the right to remain silent, language differences i.e. word guilty)

Separate Aboriginal Justice system?

-why is the current attempt to indigenize the current system not enough? some argue that our current restorative justice is not the same. -the AB have an inherent right to self-government s. 35 of the Charter will reduce systemic discrimination and overrepresentation of AB at every stage of the CJS

Donald Marshal Reprt-Hickman, Poitras et al.

Conclusion was that Marshall was treated differently because he was native. Many mistakes made (police getting witnesses to lie, tunnel vision, inadequeate defence counsel, crown disclosure) CA blamed Marshall for his own WC because he originally confessed

JUDGES NEVER REMOVED FROM BENCH AND RCMP REFUSED TO PRESS CHARGES AGAINST LEAD INVESTIGATOR WHO CONVINCED WITNESS TO FALSIFY HER TESTIMONY) good example of how difficult it is to hold police accountable

No Safe Place-W. Troyer

Economies in two Ontario AB communities destroyed by mercury spills is only one example of many native communities where toxic waste is being dumped. demonstrates how we dont value them or their land-ex. Aboriginal boil orders Another example is the appropriation of the land given through treatys to the military in Ipperwash.

R. v. Naqitarvik
Inuit Accused at trial sentenced to 90 days intermittent sentence for raping a 14 year old. CA overturned saying that the Inumaruit counseling system was not traditional and thus not an appropriate alternative to incarceration. Two things to look at: a) Article by M. Jackson: community being forced to modernize because of our imposition upon their culture. We expect them to stay traditional but at the same time modernize. b) Gendered aspect of this crime: Inuit womens association argues about the effect that lenient sentences have on Inuit women and how their rights are not protected.

R. v. Gladue
Gladue an aboriginal woman who killed her husband. CA said the trial judge erred in not taking into account the offenders aboriginal status because she was living on a reserve. s. 718.2(e) madates that you MUST consider alternative non-carceral sentences for AB no matter where they live.

Sentencing Circles
-see notes in long summary -limits=adversarial model of current CJS must admit guilt role of the appellate courts -agreed v. contested criteria -CRITIQUE the impact on women. What is the role of the victim in the circle? Paralell to the Naquitarvik case.

Race
Leo Lachance/Carney Nerland
Cree Man killed by member of Aryan nations. Police only charged him with manslaughter, never mentioned his racial motivations at trial and never opposed bail (GOOD EXAMPLE OF BAIL-compare to the Li case who wasnt released) Commission finds out that there were many failures, specifically that he was a police informant. (GOOD EXAMPLE OF POLICE CONDUCT)

R. v. Miloszewski
neo-natzi skin heads killed an indo-canadian man, calling him racist slurs and bragging about their racial behavior afterwards. crown tried to prove racial motivations as an aggravating factor but court held that it must be proven beyond a reasonable doubt that that racial motivations existed at the time of the incident and simply belong to a racist group or generally being racist will not suffice. hard standard to prove

Report on Systemic Racism in Ontario CJS (1995) (GOOD)

black people overrepresented in prisons relative to the general population and most overprepresented among prisoners charged with drug and weapons offences. Why? Discrimination in sentencing, charging practices of police, crown more likely to prosecute by way of indictment. racially segregated both by prison and within prison. Overrepresented in max security and worst prisons. overrepresented in the closed confinement or segregation category of punishment. Bail: difference in release decisions for white and black accused: some black men imprisoned before the trial would not have been had they been white explanation-need to make quick decisions in bail and often they are made under consitions in which reliance on stereotypes, perhaps subconsciously, may make decisions easier.

Parole
-Systemic discrimination emerges in Parole determinationsrequirement for prisoners to accept responsibility for their crimes has a disproportionate effect on certain racial groups who are more likely to be wrongfully convicted (i.e. Marshall)

Spirit Murdering the Messenger-P. Williams

Eleanor Bumpers (reasonable force): discourse surrounding the shooting off of her hand as being reasonable but the issue turned on whether shooting her to death was excessive. Berhhard Goetz-ny subway shootings-grand jury did not indict him and public praised him)Amadou Diallo-mistaken my police, mistakenly shot him 41 times. spirit murder: racism is a crime, an offence so deeply painful and assualtive that it equates with physical murder equates racism with rape where the victim must prove that they did not distort the circumstances, misunderstand the intent or even enjoy it.

Class
R. v. Banks
-Safe Streets act found to be constitutional. -Didnt violate s. 15 because class not found to be an analogous ground. - Quasi-criminalizes begging. - Why is class no analogous?? Not immutable??

Dalkon Shield Reprimand-Justice Lord

Looks at the issue of both gender and corporate crime (Dalkon shield was faulty and did harm to over 9000 women women-company refused to recall product or warn womendiverted class action through settlement with the worst claims) judge attempting to morally reprimand and persuade executives to come clean would it have been different if men had been harmed? it would also be different if it was an individualvs. a corporation (i.e. a man on the street did the harm to a woman he would be jailed) When women made claims they attacked their character, inquired into their sexual history etc. Compare to The Squamish Five-received unconscionably long sentences in light of their youth, their sincere motivation, their remorse at human suffering, and their lack of a criminal record. They were involved in environmental protest.

Crime and Class: Unequal before the Law-Greenway-GOOD

Differences of representation in the CJS (of poor and minorities) is a reflection of ENFORCEMENT and not criminality. Two ways: a) What is defined as crime is more oppressive on minorities (conduct which is more probable among lower classes more likely to be defined as criminal b) Enforcement discretion-police biasly employed in less wealthy areas c) Judicial discretion-differences in chances of conviction between those remanded in custody and those let out good s. 15 argument*** Examples: Tax evasion v. Welfare fraud (raises both class and gender issues) Gender and racial bias in enforcement of prostitution-See R. v. White

Manchester Plastics
example of a innovative way to fine corporations. Judge said that the fine of $25,000 for violation of the Occupational Health and Safety Act is no more than a drop in the bucket gave a conditional discharge and attached safety procedures as conditions (disapproved of by higher court in subsequent case of Szukte)

R. v. Hebb
Challenge to s. 646(10) that says those between the age of 16 and 22 who are unable to pay their fine will not be imprisoned (s. 15) Yes, remedy was to make it age-neutral. Note: doesnt solve everything because even those under the fine option program are still jailed because of poverty and women who cannot find child care and they default on community service work.

The Legal Aid article-Renner and Warner

Represented v. Unrepresented -persons who pleaded guilty were less likely to have a lawyer -no significant differences in conviction rates betwn. Rep and unrep. -Sentencing patterns emerged however; those with a laywer more likely to get a discharge or suspended sentence Private v. Legal aid lawyer -private lawyers more successful in obtaining favorable trial verdicts. -legal aid defendants more frequently received punitive sentences Demographics -unemployed defs more typically sentenced more severely than employed -young more severe sentences -black more likely not to receive discharges (never received one whereas whites 23%) PATTERN: poor and socially marginal persons who appear most frequently in court, are unrepresented for first offences, and rep. by legal aid for second offences, and are treated more harshly by the court. SYSTEMIC BARRIERS IN ACCESS TO COUNSEL-s. 15 -not only disadvantaged in that they are either unrepresented or are represented by legal aid, but there are other biases faced by marginalized accused. -legal aid guidelines differentially impact on particular groups such as women. For example, the construction of seriousness by the courts=incarceration. What about the potential loss of children for women..is this not serious? -Many of these issues could be framed in terms of equality rights. Ex. New Brunswick .v GJ found the denial of access to counsel for a women at risk of losing custody of her child to be a violation of s. 7 why not s. 15?

Gender
Dalkon Shield-see under class Feminist Review of Criminal Law-Christine Boyle
Four Criteria for what should legitimately be considered a crime (cause serious harm to others, violate fundamental values, application of law must not harm persons or society, reason to believe that qualifying an act as a crime can lead to a solution to that crime) 80% of charges against women dont meet these criteria. Criminal law made by white men for white men CL has historically been biased against women in what is criminal-i e. property rights that historically didnt protect women CJS treats women differently-fewer rehab services in prisons, women are separated from their children, women revictimized by the system for sexual assault.

R. v. White
s. 213 (soliciting for the purposes of prostitution) claimed violated s. 15 in the ENFORCEMENT of the law in that the rates for prostitution were 80/20%. Held that there was no discriminatory enforcement and that the disproportionate rates were simply a matter of there being more female than male prostitutes.

Intersect of Race and Gender

- Naquitarvik and the Critique of Sentencing Circles

R. v. Inwood
-Man given suspended sentence of three years for assault on wife and 30 days jail for assault on son. Defence: keep the sentence-draws a distinction between assault and battery. This was not battery. Also, rebuts the argument that the sentence was lower than if this was a stranger assault says intimate assault not as bad. Crown: says that you need to send a message about spousal assault by harsher sentence. Also, argues that intimate violence is worse than stranger violence CAThis wasnt spousal battery so shouldnt be treated as harshly, but nevertheless the sentence was too light-raised it to three months imprisonment for assault on wife

Report of Arbour Commission

investigated incident at P4W of IERT members strip searching and body cavity searching prisoners.

found a huge departure from policy and many denials of rights (right to counsel, illegal and prolonged segregation, illegal strip search, etc.) recommendations (including not using male IERT members, right to counsel before body cavity search, max segregation periods etc.) have not been implemented still. In 2000 P4W closed and replaced with regional facilties but the vision behind it was lost, many women in segregation in mens prisons, security at the regional facilities has been increased from min to med, and max security not allowed at the healing lodge)

Jane Doe
found the police conduct with regards to the failure to warn to be a violation of s. 15 because of their negligence to prioritize the investigation (non-violent nature of the rape) and their stereotype of how women would respond. Because women are most often the victims of sexual assault this disproportionately affected the manner in which the investigation was conducted.

Sexual Orientation
Little Sisters
lesbian and gay erotica being held up at Customs that wasnt in fact obscene. SCC found that there was discriminatory enforcement in the exercise of discretion under s. 99 of the Customs Act. However, seeing that it was the differential enforcement and not the law on its face that violated the charter, the law should not be struck down and that the appropriate remedy was a declaration that their rights had been violated.

Police
-Donald Marshall -Carney Nerland -R. v. White

Wrongful Convictions
-David Milgaard (22 years in prison) -Guy Paul Morin (10 years) -Donald Marshal (see above) -William Nepoose (police using intimidation against a key witness) David Milgaard Inquiry currently underway, Morin commission made 119 reccomendations (police investigative techniques, police fabrication of evidence, jailhouse informants, crown disclosure

Police: Solutions or Sources of Crime?-Brannigan

Occupational Subculture leads to police deviance Police discretion exerts a high level of influence on crime stats and leads to racial discrimination in charging (see also the article my Greenway under Class)

 Morand Inquiry (of Toronto Metro Police) found evidence of use of excessive force, police manipulation, conspriracy of silence etc.) McDonald Commission: Government inquiry into RCMP misconduct was charge with bias (as commissioners had affiliations with the liberal party), RCMP altered its internal files, inquiry did acknowledge breakdown of rule of law in police service but govnt never ended up pressing charges and stayed all private prosecutions (Dawson)

R. v. Thompson
s. 15 challenge to the investigation by police of three black teens charged with assault (none of the white youths charged). Court said that although the invesitagtion was sloppy (didnt interview or get the story from the black youths) you need to have more definitive evidence of racial discrimination. Was this really sloppy or was it differential enforcement of the law-what do you need to prove racial discrimination?

R. v. RDS
Court set out test for reasonable apprehension of bias. Judge basically said that police officers are known to over-react when dealing with non-white groups. Three of the judges said that there was a reasonable apprehension of bias, and six said there was not. However, two of the 6 maj. thought that the comments were close to the line but when looked at in context were ok. Maj: says that its ok to make generalizations but cant connect those generaliazations to specific witnesses. Also, ok for judges to look to their own understanding and to their understanding of the community. TEST: Whether a reasonable person, who has all relevant knowledge of the circumstances and who knows the social reaslites etc., would feel there existed a reasonable apprehension of bias.

Glasbeek Article
did a study of records of eight police shootings of minority men by police found that criminal trial process is systemically biased against permitting attempts to uncover socially constructed discrimination on the basis of race. Criminal law and trial system in favor of police officers. Judges unwilling to face the fact of systemic bias because of the implications that this would have on the way they administer law. Crown: difficult to prosecute and question cops-close working relationship.

R. v. Deane
Deane convicted of criminal negligence causing the death of Dudley George-a native at Ipperwash.

 He received a conditional sentence. Although this seems light (and it is) it marks one of the few occasions of a successful police prosecutionwhy??? Probably because one officer came forward and testified and also there was physical evidence (they couldnt find a gun)

R. v. Brown
Brown(charged with drunk driving( alleged that he was arbitrarily stopped based upon racial profiling. Trial judge would not look at s. 9 and so appealed to CA. CA found a reasonable apprehension of bias because the trial judge failed to appreciate that racial profiling can be a subconscious factor impacting on exercise of discretionary power. Double victory: acknowledged both racial profiling and reasonable apprehension of bias.