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Revised June 2020
The Justice System
Authors: Kate Kehler and Maraleigh Short
The criminal justice system in Canada and Manitoba is primarily based on the European adversarial model. The crown attorney seeks to prosecute on behalf of the government while the defense attorney works to discredit the Crown’s arguments. The Crown’s role is to do what is best for society as a whole, not seek revenge for an individual. However, the day to day reality is such that many Crown attorneys seek the strictest punishment they think they can get, and the defense lawyers just try to mitigate that. Often, this results in a plea bargain – a joint submission that the judge then accepts. In Manitoba, courts today are so backlogged with procedural matters that resolving cases has seemingly become more important than resolving them well. The process is often so rushed that the accused can be asked to make decisions that will affect the rest of their lives in cramped little rooms, just minutes before going into court.
The Crown does not lay charges. The police do that, but it is up to the Crown to decide which charges to pursue. The Crown is not supposed to pursue a charge if they are not convinced that they can prove it beyond doubt. However, Crown attorneys routinely pursue charges that are only ‘triable.’ The fear here is that someone who has spent months incarcerated prior to trial, if promised immediate release given time served, will just plead guilty and no real resolution will have been achieved.
Remand and Bail
Manitoba continues to be the province that holds the most people in pre-sentenced (or remand) status for the longest period of time. On any given day, about 70% of the people they have in custody are awaiting trial or sentencing.
The wealthier amongst us can pretty well count on getting bail because they are viewed as low risk and can afford a lawyer or afford to borrow money to hire one. People in poverty may or may not have a stable home or job and have to rely on the chronically underfunded legal aid system. The perceived risks in both this instability and lack of advocacy mean they are more often than not denied bail.
To the average person, it must seem that we have jails and prisons overflowing with very dangerous individuals. This is not the case. Most people in Manitoba’s jails are there for breaches of bail or probation conditions, not for committing a new crime. Most front line workers and even some judges complain about the number of conditions recommended and imposed on people as simply setting them up to fail.
- Here is just some of what we know about who we currently have incarcerated in Canada, with some Manitoba specific statistics:
- The adult non-Indigenous population in jail has been decreasing steadily, while the Indigenous population (a younger demographic) has increased dramatically. Indigenous peoples represent about 4% of Canada’s total population, but about 23% of those who are incarcerated.
- There has been an increase of 112% in the incarceration of Indigenous women in recent years. In the prison for women in Headingley (Manitoba), 8 out of 10 inmates are Indigenous.
- In Canada, you are 10 times more likely to be incarcerated at some point in your life if you are Indigenous.
- 90% of the 11,000 children in care in Manitoba are Indigenous.
- 65% of the men in Stony Mountain Penitentiary were children in care.
- 80% of those we incarcerate grew up in poverty and lack a grade 12 education.
Being Indigenous and poor is the most direct path to prison. Canadians worry about a two-tier health system? We have long had a two-tier justice system.
Poverty and Crime
Let’s look more closely at the link between poverty and crime. Former Conservative Senator Hugh Segal said, given the 80% statistic listed above, “if crime abatement is the goal then it is time that all Canadians and their governments got tough on poverty.” Many will say that they know lots of people who have grown up in and/or continue to struggle in poverty but have never committed a crime. Of course the majority don’t commit crime. They are in fact more likely to be the victims of crime given that they are forced to live in high crime areas due to the lack of truly affordable housing elsewhere. Furthermore, that is their community, so they may not want to leave.
In Manitoba, one in three children live in poverty. Winnipeg Harvest shares food with nearly 62,000 Manitobans a month, through emergency food programs across the province. Of these people, more than 26,000 are children and more than 4,000 of them are under the age of 2.
Harvest also reports that those growing up in poverty are far more likely to be in ill health and die before the age of 65, than those who do not.
When we allow people to be raised in desperate situations, we should not be surprised if some become desperate. Children know when they are being left behind or left out. The effects of that knowledge has a lasting impact. Crisis thinking and impulse decision making becomes all too easily entrenched.
Our current justice system relies on incarceration to rehabilitate individuals who commit crime.
What is actually happening in our jails is another matter. The vast majority of resources simply go to keeping staff and inmates alike physically safe. Rehabilitative programming resources are scarce. Headingly’s workshop rooms were converted to provide more beds. The use of solitary confinement as a security measure remains a huge issue. The Government of Manitoba and Justice Department recently changed terminology: they stopped calling the provincial institutions “jails” and renamed them “correctional centres.” It was meant to highlight the importance of rehabilitation. However, the reality is that people come out not corrected, but institutionalized.
Institutionalization creates its own consequences. Taking decision-making out of people’s hands creates dependency. People lose the ability to stay on a schedule and manage what little money they may have properly. This culture of dependency, added to a criminal record, keeps people from establishing stable living conditions and employment.
When we incarcerate people, we stop any progress they may have made. If they had a job or place to live, that is gone. If they are a woman with kids, those kids usually end up in government care. The disruption and cost to us all is massive.
It costs three times as much to incarcerate a person than it does to keep them supported in the community. These costs do not even include police, court and Child and Family Services’ costs.
The TRC highlights the need for child and family service, education and justice reform.
Restorative Justice is the traditional justice system for many Indigenous peoples. It also has the added benefit of being the form of justice for many of our newcomer communities, who are also becoming one of the fastest rising populations caught up in our justice system for much the same reasons: trauma, poverty, colonization through violence and war.
Restorative Justice approaches crime and harm as an imbalance that needs to be corrected.
It ensures that the person who committed the harm is accountable, takes responsibility for and works to repair the harm.
When possible, it allows for direct restitution to the person harmed, but also provides more peace to these victims as they get a better understanding of the whys of what was done to them. Victims of crime who engage in restorative justice processes report much higher levels of satisfaction than those who go through our current system.
Restorative Justice can also come into play at various stages in the system. It can divert one out of the system before all of the ill effects of incarceration makes matters worse. But it has also been used after a sentence has been served. Some family members of murder victims have received peace of mind when meeting with those who have served their sentence and have ‘owned’ what they have done.
Contrary to the popular perception that restorative justice is easier than incarceration and tantamount to ‘thug hugging,’ most perpetrators who go through the process say it is much harder to ‘own-up’ to their failings and face the ones they harmed than it is to sit in a jail cell and focus on their own suffering, rather than what they caused.
Most importantly, by a careful examination of the incident, the context of the crime is better understood by the community, which also gains a better understanding of how it can address the root cause of the imbalance.