For important political and historical reasons, based on treaty claims and the fiduciary responsibility of the Crown for aboriginal peoples, aboriginal first nations are not considered for government policy purposes as ethnocultural groups along with the immigrants and their descendants. From a sociological perspective, however, aboriginal peoples are considered within a class and cultural minority, which offers instructive similarities and contrast with other ethnocultural minorities in Canada.
The paradigm question in aboriginal justice has been the issue of overrepresentation in the criminal justice processing system. Native people are overrepresented as inmates in the correctional system of every Canadian province and territory, and in the federal correctional system.<91> Research in overrepresentation has concentrated on corrections data because of the lack of data on other key areas in the criminal justice process: arrest, charging, plea, and sentencing. While a strong empirical case has not been made for unequal treatment of aboriginal people compared with non-aboriginals, there is strong anecdotal evidence to suggest unequal treatment of aboriginal people at every stage of the criminal justice process.
There have been similar claims with respect to some ethnocultural minorities, in particular, non-white minorities. The research conducted by the Minority Advocacy Rights Council (MARC) for the Department of Justice Canada<92> suggests that representatives of minority groups have knowledge or experience of unequal treatment in the criminal justice system. In his review of the existing research, Etherington cites a number of reports that point out the unequal treatment of racial and ethnic minorities in the criminal justice system.<93> Background reports prepared for the former Law Reform Commission of Canada by Brodeur<94> and by Kaiser<95> also raise issues relating to unequal treatment of racial and ethnic minorities at various stages of the criminal justice process.
With respect to the overrepresentation as it relates to ethnic and racial minorities, Samual and Faustino-Santos summarize several studies on the representation of members of national origin groups (an imperfect proxy for ethnic origin) in the federal corrections system dating back to the 1950s.<96> All the studies cited in their research indicate that these groups have been underrepresented in the criminal justice system.
More recent data presented by Thomas confirms the earlier findings, with two important exceptions.<97> Thomas' research shows the historical pattern of lower rates of incarceration, and therefore, a lesser degree of conflict with the criminal justice system for all but two ethnic groups; Latin American and Caribbean groups are overrepresented in federal correctional institutions. It is important to recognize that illegal immigrants probably account for much of the overrepresentation. When the data are constructed for Canadian citizens and landed irnmigrants only, Latin American groups are no longer overrepresented, and the extent to which the Caribbean groups are overrepresented diminishes.
The most recent research on this issue is a study of ethnocultural minorities in the British Columbia Corrections system.<98> This study focuses on representation of selfidentified ethnic groups in the B.C. corrections system. The research reveals that members of Asian and East Indian ethnocultural minorities are underrepresented as inmates in the provincial corrections system relative to their proportion in the general population. Hispanic and Black inmates, however, are overrepresented. These data are consistent with the research on the federal prison population by Thomas.
Caribbean Blacks and Hispanic groups are among the most recent immigrant groups. The results presented by Gordon and Nelson, and Thomas reflect the more general discussion in the ethnic studies literature. In an analysis based on 1971 and earlier census data, Richmond and Kalbach show that most immigrant groups had integrated successful into Canadian society, often surpassing their native-born counterparts on many measures such as education, home ownership, and income.<99> These groups were, however, the early migration groups of "white ethnics." The work by Richmond and Kalbach did not produce definitive patterns for the more recent immigration streams because of the lack of data. Later analysis by Beaujot, Basavarajappa and Verma based on the 1981 census shows that more recent immigrants, especially from the Caribbean and from South and Central America, lag behind other groups including the native born, with respect to income.<100> To some extent, these findings reflect the length of residence in Canada. They may also suggest that integration into Canadian society is more difficult for the more recent groups, possibly because of recent economic recessions, or because of greater discrimination against visibly distinct groups. In any event, the general economic data relating to the integration of ethnic groups parallels, in some ways, the data on overrepresentation. Some of the more recent immigrant groups are experiencing problems integrating economically into Canadian society. Data on overrepresentation show that some of these groups are also coming into conflict with the justice system more than groups from earlier periods, thus reflecting difficulties of integration into the society in terms of conflict with the justice system.
Studies of differential or unequal treatment have focussed on the corrections system, mainly because of the availability of data. Ethnic or national origin data are not collected in the administrative data systems at other stages of the criminal justice system. However, the overrepresentation that is apparent at the corrections stage of the criminal justice process may be the cumulative product of unequal treatment at various stages of the system from arrest to sentencing. Only two empirical studies have been carried out in Canada, one by Lescop dealing with differentials between Blacks and Whites at the arrest stage in Montreal,<101> and the other by Clairemont, et al., carried out in connection with the Marshall Inquiry and dealing with sentencing differences between Blacks and Whites in Nova Scotia.<102> Neither study produced conclusive results.
There is a larger body of American research dealing with
differential treatment and overrepresentation. The general
conclusion from this literature is that discrimination does
exist throughout the justice system in the United States
although it is subtle and not overt.<103> Research results
are generally inconclusive or very weak.
4.1 Police Contact
4.1 Police Contact
The police are the most visible justice system actors. They are, therefore, very important with respect to minority group perceptions of fairness, equity, and access to justice. The police are the first point of contact with the justice system for victims of crimes, witnesses, and suspects, and they are often the first and primary source of legal information. 104 As a result, any perceived abuse of discretionary power by the police can anger communities and affect their perception of the entire justice system.<105>
It is evident that anger and mistrust of the justice system arising from police shootings of Blacks in both Toronto and Montreal has grown in recent years. This was found recently in both the Lewis Task Force report in Ontario<106> and the Comitee Bellemare report in Quebec.<107>
Etherington points out that despite the general perception by minority groups that police abuse of discretion exists, there has been very little study of broad police discretion concerning surveillance and patrolling, stop and search powers, detention, search and seizure, charging, pre-charge release, post-charge release, and the use of deadly force.<108> The small amount of existing evidence suggests the incidence of differential treatment. An unpublished study in Montreal by Normandeau, cited by Etherington, reported that non-whites were stopped and questioned by the police three times more frequently than Whites.<109> According to Brodeur, there is widespread consensus in the general research literature that minority youths are subject to a form of over-policing -- i.e., subject to surveillance, stop, and search procedures to a greater extent than white youths.<110>
Police use of deadly force has become a highly visible issue as a result of a number of shootings of minorities by the police in Toronto and Montreal. These incidents have led to new police complaint procedures and, more recently, to the establishment of the Race Relations and Policing Task Force in Ontario. The former Law Reform Commission of Canada called for the reform of Section 25(4) of the Criminal Code which permits a police officer to use as much force as necessary to prevent the escape of a person in the course of an arrest.<111> Any changes to federal legislation amending the section of the Criminal Code defining the conditions under which the police can use firearms to stop fleeing felons should be monitored.
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