Whistler Secondary School

Law in Society;
The Mistreatment of Minorities in the Law

Jaya Guibert
Law 12 Term Project
Mr. Hall
June 17th, 2020
 During my studies in Social Justice and Law I have looked at a variety of legal cases and

observed how BIPOC (Black, Indigenous and People of Colour) are treated differently within the

Justice System. For centuries these minority groups have been treated as inferior and

systemically oppressed. Although we have made some progress there is still a great need for

reform. I focused my research on Canada's Correctional System, Police Powers and Youth and

the Law. I will address these topics individually, however they are not unrelated. Typically, as

relatively privileged individuals, we take our Rights and Freedoms for granted. However, given

current events, we are seeing how quickly they can be suspended and how important they are.

Due to the pandemic, riots, and civil unrest we have seen how many of our Rights can be

suspended, essentially with the “flip of a switch”. We have also seen how these actions

disproportionally affect minority populations.

The reason The Canadian Charter of Rights and Freedoms was enacted was to ensure and

protect individuals rights within reasonable limits. One could argue whether or not it is currently

serving the ‘under-served’. Far too often we hear of cases where a person of colour or member of

a minority group has been wronged by the Justice System and law enforcement. I think it is very

important that everyone be educated on these topics in order to maintain the integrity of the

system. In order to create change there must be a collective awareness of the systemic issues. It

is important for people that have the privilege to advocate for those who may not have the power

to do so. We need to keep governments and law enforcement accountable for their actions. When

looking at Police Powers I found it shocking to see the sheer amount of authority they have and

how difficult it is to hold them accountable. It is upsetting to see in Canada and the United States
of America the number of children that suffer from poor education and lack of resources. When

looking into all my topics I found it interesting to see the intersectionality of it all. It is crucial to

address the root of these issues before trying to solve them.

Topic 1: Canada's Correctional System

Canada's prison system

https://www.nationalmagazine.ca/en-ca/articles/law/in-depth/2019/canada-s-prisons-are-failing.

Summary

The dated Canadian prison system was built on retribution and punishment. Jennifer Metcalfe,

the executive director of Prisoners' Legal Services in Vancouver, calls it a "self-perpetuating state

of control," where less and less freedom for inmates produces more violence, worse outcomes,

and increased mental health crises." Over the years the Canadian prison system is worsening.

Lack or mismanagement of funding has led to the use of solitary confinement, overcrowding,

inadequate mental health support, minimal access to culturally appropriate reintegration

programs, and inadequate legal support. ‘Radical change’ is needed to fix the system that is

failing thousands of individuals. People of indigineous background are often treated worse, along

with people with mental illness. Changes need to be made and have been recommended for over

80 years yet nothing is changing. These conditions often lead to people reoffending after release.

(Without proper resources prisons use solitary confinement when dealing with mental health

crises.)

Justification
This article demonstrates what is going on behind closed doors and it shows how much the

public is not aware of. I chose this because we often don't think about the prison system or how

dysfunctional it can be. It shows how this has been a longstanding issue despite the fact that there

have been public reviews. People of indigenous background and people with mental health issues

are often swept under the rug and grossly mistreated. This should be an opportunity to provide

support and rehabilitation but instead it is worsening the situation and reinforcing trauma.

Indigineous over representaton in the Prison System

I will be breaking this next part into three subcategories within indigineous overrepresentation in

the prison system. It will go as follows

Over representation:

- Recidivism

- Parole release

- Reintegration- reserves

Topic summary

Indigenous peoples are among the most marginalized and underrepresented members of our

society. For a long time indigenous people have been over represented in the Canadian penal

system. The three main reasons for overrepresentation that I have discovered are: lower chances

of parole release, recidivism and poor reintegration into mainstream society. And underlying

these facts is systematic racism.

Parole-who gets released?

https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/xmnng-brgnl-crrctns/index-en.aspx#a10.2.

Summary

It is believed that lower parole release rates for aboriginal inmates are a major contributor to the

disproportionate levels of aboriginal incarceration. “Lower parole rates have been attributed to

cultural insensitivity, lack of aboriginal parole board membership, inequalities aboriginal

offenders face when appearing before the parole board, and the likelihood of aboriginal

offender's relinquishing their right to be considered for parole”. A study in 1988 showed that

only 14.1% of aboriginal offenders were released on full parole when 41.7% of comparable non

aboriginal offenders were released on parole. Today, the 14.1% has increased yet it is still not

equal. Indigineous offenders often get shorter sentences, however, when the sentence length is

factored in with the amount of time served, aboriginal offenders are serving a greater proportion

of their sentences.

Justification

Aboriginal offenders have a much harder time getting released on parole and if they do the rules

are a lot stricter. This is a big factor in why you see more indigineous people incarcerated. The

system is unfair from the moment they are arrested until the end of their sentence. Typically they

do not have adequate legal representation and will plead guilty to lesser charges to avoid longer

incarceration. More involvement of indigineous people and culturally sensitive support in the

rehabilitation process could help make parole conditions more fair and equal.
Recidivism

https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/xmnng-brgnl-crrctns/index-en.aspx#a10.3

Summary

Another large factor of over representation is recidivism. Data shows that aboriginal offenders

are more likely to reoffend than non-aboriginal offenders. Many factors go into play with

re-offending. It has been shown that people sentenced to community supervision have a reduced

rate of recidivism. A history of drugs and alcohol, poor family situations and lack of

psychological programs and social services can all be factors to recidivism.

Justification

When looking at re-incarceration rates it's important to look at risk factors before prison,

experiences in prison and life after. It's rarely a smooth transition back into normal life after

prison. If there is existing crime in these communities it will still be there when they return.

Recidivism rates will remain high when the conditions that led to the original offence still exist.

Aboriginal Reintegration

https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/xmnng-brgnl-crrctns/index-en.aspx#a10.4

Summary

Proper reintegration into the community is a vital step in preventing an individual from falling

into old patterns and behaviors and breaking the cycle of crime on reserves. First nations reserves

are often isolated from mainstream society. If indigineous people are causing crimes in these

areas it will continue to happen when they return. The deep rooted trauma on reserves will

remain if nothing is put in place to act as a support system.

Justification

After being released from prison it is difficult to get a job with a criminal record and the existing

social stigma associated with having committed a crime. A healthy supportive social network is

key to re-integration. Without employment, support or direction in life it is difficult to create a

positive change for yourself. Restorative justice programs provide a more holistic approach to

dealing with crime however requires a more cooperative approach between the affected parties.

The relatively small size of indigineous communities provide ideal conditions for programs like

this to be successful.

Canadian Prison Funding

https://www.theglobeandmail.com/canada/article-canadas-investment-in-prison-system-mo

del-isnt-bringing-results/

Summary

Under funding in prisons is often the root cause of many problems. Prisons are often

understaffed and lacking in needed resources. The Canadian Prison System was given a large

amount of money ($2.5 billion) to improve their services. Even with this funding the right

changes aren't being made. The large amount of money is going into a dated system and not

being put to proper use. Some money is meant to be going towards new housing to avoid solitary

confinement. The article states “Dr. Zinger would rather see CSC funding shift away from

prisons and into community corrections, particularly toward mentally ill, Indigenous and elderly

people”. Despite the amount of money Canada's Correctional System is receiving they are still

facing issues and are not getting better results.

Justification

According to the Ombudsman, based on global standards Canadian prison system has adequate if

not ample funding however it is not translating into a significant drop in recidivism or the

problems within the prison system being addressed. It seems that until as a society we address

some of the root causes underlying criminal behaviour and having a justice system that

understands this and responds accordingly we will not break the cycle. Criminal behaviour and

the mental illness that can be associated with it is a symptom of an unhealthy culture. Experts

have recommended that we divert funding towards better social services outside of prisons to

prevent criminal behaviour and to support individuals better upon release. Without a holistic

perspective and more proactive approach simply putting funds into a dysfunctional system will

only lead to the same results we have been getting for decades.

Topic 2: Youth and the Law

R v. Adam Capay

https://redpowermedia.wordpress.com/2016/10/26/first-nations-man-spends-4-years-in-solit

ary-confinement-in-northern-ontario-awaiting-trial

Summary

Adam Capay was sent to jail at 19 on minor charges. After an altercation resulting in the death of

another inmate in 2012, Capay was charged with first-degree murder. He was held in solitary for

1647 days, the lights were kept on for 24 hours a day and he remained in the cell for 23 of those

hours. Correctional officers at the Thunder Bay District Jail say they have few options for

dealing with people like Capay, who exhibits symptoms of mental illness. Putting someone who
is dealing with mental illness into segregation will only worsen the problem. The Thunder Bay

District Jail did not have the correct resources for dealing with inmates like Capay so they had to

put him in solitary confinement.

Justification

Canadian prisons need to make significant changes within their system. It is clear they are not

properly equipped with dealing with inmates with mental illnesses. It has to do with issues with

funding as well, not every facility has the ability to hire proper staff. Prison workers and guards

could be better trained and educated on cultural issues. When laws change more education is

needed for officers, caregivers and guards

Ontario Black Youth Action Plan

http://www.children.gov.on.ca/htdocs/English/documents/youthandthelaw/youthactionplan/

yap.pdf

Summary

Ontario has implemented the Ontario Black Youth Action Plan in hopes to help create more

equitable treatment and opportunities for black youth in Ontario. Black people in Toronto make

up 4% of the population yet they account for as many as 40% of murder victims. “An analysis of

10,000 arrests in Toronto showed that Blacks were 50% more likely to be taken to a police

station for processing after arrest, and 100% more likely to be held overnight than were whites,

even taking into account criminal history and age. When given bail, they had more conditions

imposed.” There are many examples of two individuals with similar criminal pasts and crimes

given drastically different sentences because of racial discrimination. The goal with the Black
Youth Action Plan was to try and give black youth the same opportunities as their non-black

peers. They also plan on supporting and improving existing organizations that help the youth.

Justification

This article gives an example of small steps for positive change with Youth and the Law. I think

to make a change, it is best to start within smaller community settings. Black neighborhoods are

often made up of low income families and don’t have beneficial resources accessible. An

organization like OBYAP will slowly start to bring in more opportunities. The key is to think

globally and act locally. Different areas have different needs so it is important to tailor actions to

the unique requirements of the community. Working on improving existing community services

and adding new ones will make big changes. We have to acknowledge that even if every child is

given equal opportunities, things such as the colour of their skin, socio-economic status will still

create an unfair advantage.

Youth Crime on Reserves

https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ststclsnpsht-yth/index-en.aspx#sec02.2

Summary

Many statistics show the difference in the number of crimes committed by youth on reserves

compared to the rest of Canada. In 2004, 9,815 youths aged 12 to 17 were accused of a criminal

offence on a reserve. This rate was more than three times higher than the average for the rest of

Canada. The article also states that “young Aboriginal people are more likely to drop out than

non-Aboriginal people, with the 2007 to 2010 dropout rates among off-reserve First Nations,
Métis and Inuit at 23%, compared with 9% for non-Aboriginal people”. Intergenerational trauma

has profoundly affected younger generations in negative ways.

Justification

I chose this because I think understanding why First Nations youth commit more crime than

other youth around Canada and offering more services to prevent that will be a step towards

reducing the number of indigineous youth in prison. This article highlights the fact that these

underlying issues within these communities lead to higher crime rates. The higher dropout rates

are another factor that can lead to higher crime rates. In more recent years, with collective

recognition of the lasting impact of the residential school system more space has been created for

healing.

Defunding Schools in Chicago

https://www.theguardian.com/us-news/2018/dec/06/chicago-public-schools-closures-racism-

ghosts-in-the-schoolyard-extract

Chicago City Budget: 2013 Budget

Summary

In 2013, 49 schools in Chicago were shut down. Chicago's public schools have been seen as

‘crumbling prisons’. Mayor Rahm Emmanuel made a statement on the day of the closures

saying: “I know this is incredibly difficult, but I firmly believe the most important thing we can

do as a city is provide the next generation with a brighter future.'' But how can taking away

childrens access to education near them give them a brighter future? All students in these schools

were given spots in nearby schools but their sudden displacement can be very overwhelming and
not always successful. This is not only affecting the students but also all of the staff members

that will be out of jobs. On the list of schools closed down, 90% of the schools were majority

black and in majority black neighborhoods. Bronzeville, a community in Chicago's

majority-black South Side, has had 16 schools either closed since 1999. This was the country's

largest mass school closure in recent history.

Justification

This brings up the idea of the ‘school-to-prison pipeline’. The school to prison pipeline is the act

of criminalizing youth during highschool or right after. In rougher neighborhoods (commonly

BIPOC) schools will have security guards, metal detectors and even police officers. This is

putting the youth in contact with the law at an early age and in some cases involving them in

in-school arrests. In the case of the Chicago schools shutting down it was due to lack of funds yet

they were able to increase the police department's budget. The inequality of funding with

education and policing is a big reason for the large number of youth convicts. In some areas

schools act as the glue that holds the community together, it is supposed to give children a safe

place to learn away from home. Budgets convey priorities and this is clearly seen when they are

funding police more than social services and education.

Police Officers in Schools

https://www.aclu.org

https://www.wsws.org/en/articles/2019/03/18/poli-m18.html

Summary
In response to high profile school shootings, schools across the United States made an effort to

hire more police officers in order to protect students. Instead of providing funds for mental health

providers, counselors and nurses, schools are spending upwards of 1 billion dollars to hire new

police officers. This is another instance where significant cuts to public school budgets were

made and redirected towards law enforcement. A study showed that 75% of Delaware school

arrests were for disorderly behavior or fighting. Altercations like this that take place in a school

should be dealt with by properly trained school staff before the police need to be involved.

Students are now being arrested, sometimes incarcerated and left with a criminal record. By

looking at different school shootings that have taken place in the US you can see what the

outcome was at the end and that they follow a similar pattern. Out of 25 shootings 13 resulted in

the shooters committing suicide, 5 were disarmed by teachers or other staff members, 4 were

arrested by police (not school police) and the others ended in other circumstances. This shows

how police officers in schools will not stop school shootings from happening nor stop them in

the moment. “Black students are more likely to have police in their schools, 3x more likely to be

arrested at school and more likely to be arrested for the most minor offenses. No evidence

schools are any safer. The only thing more police in schools is proven to do is criminalize more

kids.”

Justification

This article fits into my research because it addresses the systemic issues that lead to juvenile

crimes. At risk students often arrive at school with pre-existing trauma. When schools have

replaced support services with law enforcement their behaviour instead of being treated

therapeutically it is criminalized. Having police officers in schools can lead to arrests for things
such as routine behavior violations. In the last 2 decades over 1 million students have been

arrested in school (mostly students of colour). Hiring police in school is meant to be for

protection yet it is doing more harm than good. 1.7 million students attend schools with police

officers but no nurses.

Topic 3: Police powers

Habeas Corpus

https://www.commondreams.org/news/2020/06/05/deeply-disturbing-new-york-supreme-co

urt-judge-rules-protesters-can-be-detained

History: https://people.howstuffworks.com/habeas-corpus-important.htm

Summary

Due to the rise of peaceful protests as well as riots currently taking place, many arrests are being

made. A New York state judge has declined the petition to release all protesters who have been

held for more than 24 hours. This suspension of habeas corpus is taking away the right to an

arraignment hearing within 24 hours of the arrest to argue whether the arrest was lawful. Without

the arraignment hearing many protestors are being held without reason. The justification is that

we are currently in a pandemic so things are moving slower. However as Marlen Bodden, from

the Legal Aid Society said "The NYPD has no excuses with its 38,000 police officers and the

best technology in the world, with all the money they are being given. They have no excuse to

not process them in a timely manner." Without habeas corpus, a person could be imprisoned

unlawfully without any recourse for securing his or her release. Article 1, Section 9 of the

Constitution states that habeas corpus "shall not be suspended, unless when in Cases of Rebellion
or Invasion the public Safety may require it". Protesters are being seen as rebellious and a threat

to public safety. Habeas corpus has been suspended in the US before. Following September 11,

2001the military commissions act was passed. Section 7 of the Military Commissions Act of

2006 reverses the guarantee of habeas corpus to all people detained by the United States.

Justification

By suspending habeas corpus individuals are losing the rights that would typically be granted

upon arrest. Without habeas corpus, nine of the 10 articles in the Bill of Rights are lost. The

rights that we consider inalienable can easily be suspended, for example during a pandemic.

Amid 100s of protests currently taking place around the world, we are seeing this happen. Given

that these are race-based protests many people of colour are being targeted for arrest.

R v. McRae

“https://montreal.ctvnews.ca/montreal-cops-abused-their-power-when-they-racially-profile

d-man-police-ethics-report-1.4741609”

https://www.cbc.ca/news/canada/montreal/kenrick-mcrae-montreal-police-1.4008514

Summary

In 2017 Kenrick McRae was unlawfully arrested in Montreal, Canada. The police officers pulled

McRae over and notified him that the lights above his license plate weren't working. McRae got

out of his car while recording the situation showing that his lights were in fact working. The

officers asked McRae to hand them the camera he was recording with and when he asked why,

he was arrested for ‘disturbance’. The officers took away his camera when putting him in the

back of the police car, while doing this the officers deleted the footage he had taken along with
previous family videos. He was released after the two arresting officers told him they did not find

anything to charge him with. The incident ended up involving a total of four police cars and up to

eight officers. McRae called 911 to file a complaint against the arrest. McRae says encounters

with the police happen every month or two so he keeps the camera in his car to record them as a

form of protection.

Justification

Recording police officers is often done to keep them accountable. Asking someone to stop

recording is essentially admitting that they are doing something wrong. Kenrick McRae had the

absolute right to film the police officers but they used their position of authority to try and

circumvent the law. Police officers are not allowed to seize a camera or the footage unless they

have a warrant and this should only happen later in court when they declare their reasoning. This

kind of behavior is indicative of the systematic profiling of minorities and police abusing their

power.

Qualified immunity

https://theappeal.org/qualified-immunity-explained/

https://newrepublic.com/article/151168/legal-revolt-qualified-immunity

Summary

When police officers act unconstitutionally or use excessive force people will often resort to

filing a complaint. With some cases being very clearly unlawful it can still be near impossible for

civil lawsuits to be made against police officers or for any action to be taken. Qualified immunity

is what makes this so difficult. Judges may decide that what the officers did violated the
constitution but will still dismiss the case, relying on qualified immunity. This doctrine has

become a way to protect government officials from damages claims and avoid accountability for

misconduct . Qualified immunity states that your rights must be ‘clearly established’ or there

must be an existing case that is almost the exact same where a judge decided a police officer's

actions were wrong. “The Supreme Court invented qualified immunity in 1967, describing it as a

modest exception for public officials who had acted in “good faith” and believed that their

conduct was authorized by law”. Courts are no longer required to determine whether the act in

question actually violated the Constitution in qualified-immunity cases. Instead, judges can

simply cite the lack of existing precedent and end the inquiry there. Dr. Zadeh says,“to some

observers, qualified immunity smacks of unqualified impunity, letting public officials duck

consequences for bad behavior—no matter how palpably unreasonable—as long as they were the

first to behave badly.”

Justification

Within the criminal justice system there are many loopholes like this that are put in place to

protect government officials and police officers. While there may be situations where qualified

immunity is relevant, it exists in a system that has historically and systemically oppressed certain

groups in society. It is easy to see how this power can be abused or misused in a way that will

prevent justice from being served.

Conclusion

While the focus of this paper was on Canada's Correctional System, Youth and the Law and

Police Powers, my research allowed me to look more deeply at our Charter of Rights and
Freedoms as well. Concurrently, we are experiencing a pandemic and mass protests against

police brutality and racism which has led to governments curtailing many of the protections that

we celebrate in a free society, including freedom of speech and peaceful assembly. (ie Bill 1

passed June 17 in Alberta). In previous examples, it is shown that stronger, harsher policing,

higher incarceration rates and restrictions for minority groups has not increased the safety or

wellbeing of the population at large. Acts of violence and property crimes have not decreased.

These coercive measures only serve to create more separation and alienation in our society. My

original intent was to look at BIPOC communities however, I am seeing how some of these

extreme measures are affecting a greater population. As a result of current events, we are seeing

a global reaction/movement of solidarity. The question is, how will our leaders react and will this

have a meaningful and lasting impact?