Canadian Criminal Justice Research Articles

The Shackled Sexual Assault Victim: Trauma, Resistance, and Criminal Justice Violations of an Indigenous Woman

This article provides a critical exposition of the harrowing experience of an Indigenous woman who was the complainant in a sexual assault case. Angela Cardinal was shackled and incarcerated during the preliminary inquiry into the matter of R v Blanchard, 2016 ABQB 706. The story of what this woman endured is among the most appalling examples of gendered, colonial and racialized brutality the Canadian criminal justice system has imposed on a sexual assault complainant and is a devastating indictment of this system. However, as well as a story of violation it is simultaneously a story which is most usefully understood through the lens of this woman’s strategy of dignified resistance in the face of the egregious institutional revictimization of her. I organize the analysis of what happened to Angela Cardinal around themes, described as intersecting and compounding layers of violation. The themes, or layers of violation, revolve around the violation of Angela Cardinal’s most fundamental rights and liberties, her retraumatization at the hands of the criminal justice system, and the failure to hold any of those responsible for this to account. I also examine the story, and its many dimensions, through three lenses. First, the story of the shackling of Angela Cardinal at the preliminary inquiry and her subsequent incarceration has to be situated in its wider context. It is only in the larger social, political, and economic contexts of both pervasive gender inequality and colonial forms of inequality shaping the lives of Indigenous women that the significance of the story of Angela Cardinal’s abuse at the hands of the Canadian legal system can be fully grasped. Second, I elucidate the narrative in terms of what it tells us about how the criminal justice system’s response to sexual assault victims––and in particular to women not seen as “ideal victims”—can go very badly wrong; the themes are expressed here in the worst possible way. The epidemic levels of sexual violence marking the lives of Indigenous women in Canada have been well documented, as have the state failures in delivering equal protection or benefit of the law. The third lens through which I explore this story is through that of Angela Cardinal’s amazing resistance in the face of the degrading and dehumanizing treatment to which she was subjected by the Canadian criminal justice system. This theme of women’s resistance to sexual violence is an important corrective to dominant and totalizing narratives of victimization which obliterate their agency––an agency which often survives even in the face of the most extreme forms of violence and abuse. Indigenous women, often individually and as a collectivity (diverse as this collectivity is), have displayed fierce agency and resistance in response to the historical harms and contemporary wrongs they have endured and continue to endure.

RACIAL DISCRIMINATION IN THE CANADIAN CRIMINAL JUSTICE SYSTEM: HOW ANTI-BLACK RACISM BY THE TORONTO POLICE HARMS US ALL

Due to the persistent and tenacious practices of anti-Black racism, embedded in White supremacist policing practices, Black and Indigenous people are overwhelmingly overrepresented in the Canadian criminal justice system. Unsurprisingly, a disproportionate number of Black people are killed at the hands of police in Toronto. The Canadian criminal justice system is complicit in perpetuating anti-Black racism through practices of surveillance, carding, and racial profiling. This paper contributes to the analysis of anti-Black racism in the Canadian criminal justice system, emphasizing the circumstances of Black people in Toronto. The goal is to wed the study of Black criminalization with the analysis of anti-Black racism and social stratification in Canada to show how existing patterns of racism and socioeconomic marginalization are reinforced by a White supremacist criminal justice system. The paper offers recommendations to address the issue of anti-Black racism, including the hiring of more Black people in the police force. Conceptually, the paper contributes to our understanding of how anti-Black racism ricochets to hurt us all in society.

Prisoning Indigenous Women: Strength and Resilience in the Face of Systemic Trauma

The overrepresentation of Indigenous peoples in the Canadian criminal justice system is an enduring and systemic issue that must be addressed. Over the past 10 years, the proportion of women behind bars has increased by almost 30 percent; for Indigenous women, this number is 60 percent (Office of the Correctional Investigator 2017). Using a critical feminist criminological lens, this paper explores the ways in which colonial legacies, patriarchy, trauma, and systemic victimization inside and outside the criminal justice system contribute to the criminalization and (over)prisoning of Indigenous women and questions the practice of prisoning an already marginalized and oppressed group of people. Drawing on critical feminist criminological research and empirical studies, I theorize a victimization–criminalization–incarceration cycle concept to explain the ways in which societal- , institutional- , and individual-level factors intersect and impact Indigenous women’s journeys through the criminal justice system in tangled and complicated ways. Future research could provide additional insights into the potential value of this concept for policy and practice.

The Consideration of Indigenous Peoples in High Stakes Evaluations of Risk

While Indigenous peoples account for a small portion of the Canadian population, they are overrepresented in the Canadian Criminal Justice System. Research and case law suggest culture should always be considered in violence risk assessments (VRAs), but it is unknown whether this recommendation is followed. The present study examined the role of Indigenous versus non-Indigenous culture in judicial opinions regarding evaluators’ VRA and expert witness testimony in Dangerous Offender and Long-Term Offender (DO/LTO) hearings under Canadian Law. 214 DO/LTO hearings from 2009-2016 where judges commented on VRAs submitted to the court were systematically identified via the Canadian Legal Information Institute database. Judicial comments were analyzed in cases with Indigenous and non-Indigenous defendants for discussions of culture and the prevalence of comments regarding qualities of the evaluator(s), qualities of the VRA(s) completed, and qualities of the evaluators’ expert testimony about the VRA. Judges considered culture meaningfully in 64% of Indigenous offenders’ cases. Discussion of VRA tools’ content was significantly more frequent in non-Indigenous cases; otherwise, frequency of non-cultural themes did not vary between case groups. Given the importance of considering culture in VRA, it is concerning that culture was considered in just over half of cases; improving this deficit is discussed.

Criminalization and capture strategies in the HIV/AIDS assemblage.

This study aims to ask how HIV/AIDS is arranged as a public threat in and through Canadian law, particularly in relation to transmission, and how strategies of capture extend the affective force of criminalization leading to poor health outcomes for persons living with HIV/AIDS. This is a conceptual paper with a focus on applying affect theorist Jasbir Puar's work on assemblage and debility. The authors use Puar's work to frame the conditions that persons with HIV/AIDS experience in the Canadian criminal justice context as debilitating. The authors found that while HIV transmission is not itself a criminal act in the Canadian criminal justice context, activities where transmission is prevalent or possible have been criminalized, particularly in relation to nondisclosure of health status, sex work and substance use. Further, the authors found that when the activities associated with HIV transmission are criminalized, strategies of capture extend the affective force of criminalization first in the inadequate provision of health-care and pharma-care services, second in state resistance to implement harm reduction measure and third in punitive population management strategies. Persons living with HIV/AIDS have historically experienced stigmatization, especially intersecting with neoliberal, white supremacist and heteropatriarchal axes of power. This paper uses assemblage theory to shore up how these relations operate in ways that close off possibilities, by constituting the HIV/AIDS assemblage as a criminal - rather than a health phenomenon. This paper, thus, holds Canada to account for debilitating a historically disadvantaged and multiplying marginalized population.

Cop-Killers, Emotion, and Capital Punishment in Moncton, New Brunswick: The Ambrose and Hutchison Case, 1974–5

On 13 December 1974, Moncton policemen Corporal Aurèle Bourgeois and Constable Michael O’Leary were kidnapped and murdered, evoking an intense public response of grief and anger against the perpetrators. The funeral for the murdered men and the trial and conviction of Richard Ambrose and James Hutchison for the crime offers an example of how emotions evoked by sensational murders played an important role in the Canadian criminal justice system and debates on capital punishment. Examining the reactions of the police, political figures, and the media, as well as how sympathy was managed at the trial, demonstrates how certain laws aimed to regulate the emotions related to violent crime: accepting expressions of compassion and sadness, but not anger and vengeance. The murders also coincided with a majority federal Liberal government committed to changing the laws surrounding capital punishment. Even though the perpetrators elicited little public sympathy, their case was used as both an opportunity to champion hope and forgiveness in the cause of abolition and an example for retentionist calls for retribution and punishment. This article examines how the grief and anger of one community illustrated the criminal laws designed to regulate emotions in court and outside of it and intersected with the contemporary debates on abolition, highlighting the importance of the grief and anger of policemen and police associations in capital cases and in the debates over the death penalty.

Kijibashik: Turn it Around

Over the last decade, there has been a dramatic increase in the number of incarcerated Indigenous women within Canada’s federal prisons. More than half of these women also identify as single mothers of multiple children, extending the scope of incarceration’s impact across generations. While maternal incarceration has been shown to contribute to a myriad of issues in children, including mental illness and increased mortality, there are few qualitative studies where previously incarcerated Indigenous women have been asked directly about the impact of incarceration on their wellbeing and mothering. This project will utilize a community-based research methodology that centers the voices of previously incarcerated Indigenous mothers by examining the commonalities and distinctions in their lived experiences. We will (1) identify the mental, emotional, spiritual, physical, and relational implications of incarceration for Indigenous mothers, (2) explore Indigenous concepts of motherhood and kinship, (3) identify the unique needs of this population in the criminal justice system, and (4) inform new and existing programs and services directed towards Indigenous mothers involved in the criminal justice system. Semi-structured individual interviews with previously incarcerated Indigenous mothers and Sharing Circles (focus groups) with key stakeholders, including Elders, Healers, and community partners involved in the criminal justice field will form the core knowledge for the project. This project will address a critical gap in public health research concerning the wellbeing of marginalized and incarcerated individuals and contribute significantly to our understanding of the experiences of Indigenous women in the criminal justice system. Through a collaborative partnership with several key Indigenous-centred organizations, the knowledge generated will be used to inform and develop decarceration programming and supports for previously incarcerated Indigenous mothers, establishing concrete measures to reduce the overrepresentation of Indigenous women in the Canadian criminal justice system, now and into the future.

Sexual Assault Policing and Justice for People With Developmental Disabilities.

The Services and Supports to Promote Social Inclusion of Persons With Developmental Disabilities Act that passed in 2008 was intended to improve services and supports for persons with developmental disabilities in Ontario, Canada. This legislation introduced a new mandatory police reporting policy for any suspected abuse, including sexual assault. While heralded as a significant advancement, questions remain about the policy and the Canadian criminal justice system's capacity to effectively respond to abuse of people with developmental disabilities. Drawing on qualitative interview data with police investigators and Victim Crisis Services employees in Ontario, this article examines how police respond to these reports. The findings highlight the need for more clearly defined protocols and training on these types of sexual assault investigations and increased provision and coordination of appropriate support for victims/survivors with developmental disabilities.

Aboriginal Women and the Canadian Criminal Justice System

The purpose of this policy review was to critically examine the Aboriginal Justice Strategy (AJS), which is a federal governmental program founded in 1991 to combat the problem of high rates of criminality in the Aboriginal population in Canada. Considering the high recidivism rates of AJS program participants, we suggest the AJS is not as effective in achieving its objectives. Looking at this strategy through a lens of structural social work, we found that it is inattentive to the impact of structural factors on criminality in some Aboriginal communities, groups, and individuals. Also, the strategy does not take into consideration gender-based factors that influence the interaction of Aboriginal men and women with the criminal justice system, which is profoundly different. Moreover, the strategy is inattentive to the five pathways that often bring Aboriginal women into contact with the criminal justice system - poverty, violence, sex trade, mental illness, and addiction. These pathways are inherently linked to the primary structures of colonialism, racism, and sexism, which continue to oppress Aboriginal women in Canada. For these reasons, we proposed that gender-based analysis would be useful for an improved understanding of these pathways. We also provided several recommendations for lowering the rates of crime committed by Aboriginal women, which include, state supported economic investments for community development, job creation, education attainment, and employability skills as well as policies against homelessness and supports for trauma, addictions, and mental health issues.

“Do you understand these charges?”: How procedural communication in youth criminal justice court violates the rights of young offenders in Canada

Abstract This paper considers Canada’s young offenders in the context from which they enter the youth criminal courtroom. To determine how youth criminal justice courts violate the Canadian Youth Criminal Justice Act (YCJA), this analysis relates said context to several phenomena, including legal linguistics, oral language competency, literacy, communicative competency, non-verbal communication, the physical structure of youth courtrooms, and legal translation (Government of Canada eds. 2018. Youth criminal justice act. Ottawa: Government of Canada.). As a result of the standards of procedural communication upheld by the Canadian criminal justice system, young people’s rights, including the right to be respected regardless of cultural, ethnic, or linguistic differences, the right to be heard and to participate in proceedings, the right to be sentenced meaningfully, the right to privacy, and the right to be tried in a timely manner are abused in the youth criminal courtroom. Although insufficient structures of procedural communication cause these issues and are beyond the control of counsel, defense counsel are often blamed for their effects. Legal professionals must make important adjustments such as altering the formal speech required in youth criminal courtrooms, employing legal professionals with the role of translating legal jargon to young people in the courtroom, and closing youth courtrooms off from the public to reduce the YCJA violations occurring in youth criminal justice court. These adjustments are ultimately the responsibility of the Canadian criminal justice system.

Constitutionalizing (In)justice: Treaty Interpretation and the Containment of Indigenous Governance

To state that the Canadian criminal justice system has historically failed to provide adequate measures of justice for Indigenous peoples would be both an understatement and a mischaracterization. Canadian institutions of justice have not merely failed Indigenous peoples but were not designed to protect Indigenous interests to begin with. Designed by and for European newcomers who sought to institute their own legal orders, the justice system has functioned as an integral part of the structure of settler colonialism in Canada.

Obstacles to the Development of Restorative Justice: a Comparative Analysis of Russia, Canada and Germany

Restorative justice (RJ), which is a concept of criminal justice focused on the needs of victims and the community affected by the criminal act rather than on the punishment of the offender, is becoming an integral part of criminal justice in many developed Western countries. Russia, however, is just taking the first steps in the development of restorative justice with the focus on mediation for juvenile delinquents. Using the theory of the (de)civilization process by N. Elias, the authors suggest that a weak state, characterized not so much by inefficient economy as by underdeveloped social institutes, could be an obstacle for a more active use of RJ in Russia. Specifically, the authors claim that corruption undermining the legitimacy of public administration, a lack of trust in law enforcement, suppression of small business and hatred towards some groups of people all strengthen punitive sentiments that contradict the principles of RJ. A comparative criminological analysis of RJ in Canada and Germany reveals the unique history of its emergence and use in these countries in comparison with Russia. As for Germany, the moments of de-civilization in this country in the first half of the 20th century and in the recent years (connected with the uncontrolled influx of migrants) are slowing down the development of RJ. The absence of any significant social upheavals in Canada could explain a strong support for RJ among the local population and a comparatively successful integration of its principles in traditional Canadian criminal justice. In conclusion, the authors debunk some myths regarding RJ, which could constrain its implementation in these countries. In particular, the authors argue, that the traditional paradigm of punishment should not be abolished, but could be supplemented by the paradigm of reconciliation and restoration.

‘It’s a dead place’: A qualitative exploration of violence survivors’ perceptions of justice architecture

Each year, thousands of victims of violence enter the Canadian criminal justice system and, by extension, justice buildings, such as police stations and courthouses. The architecture and design of these buildings communicate symbolic messages about justice and may influence the emotions, behaviors, and well-being of survivors. This qualitative study explored survivors’ emotional experiences with justice architecture. Findings reveal that survivors experience justice architecture as cold and hard; a facilitator of feelings of insignificance; lacking in privacy and; representative of their raw emotional state. The author discusses implications of these findings for victim engagement in the context of justice spaces.

More Stormy Weather or Sunny Ways? A Forecast for Change by Prisoners of the Canadian Carceral State

Upon being elected, Prime Minister Justin Trudeau (2015) mandated the Minister of Justice and Attorney General of Canada Jody Wilson Raybould to review criminal justice laws, policies and practices enacted during the 2006-2015 period where successive Conservative federal governments were in power. Recognizing that the knowledge produced by prisoners, particularly when brought together with academic arguments, can serve to enlighten public discourse about the current state of carceral institutions, the Journal of Prisoners on Prisons undertook a Canada-wide consultation with federal prisoners with regard to what changes have occurred in the institutions where they have served time in the last decade. This paper, which summarizes that consultation, begins with an overview of the Conservative punishment agenda, followed with a thematic review of how these changes have affected prisoners and what they would like to see moving forward in the context of the governments promised review of the Canadian criminal justice system. Representing the captive from every region of the country at all security levels and privileging the voices of Women, Black, Indigenous, LGBTQ, and Elderly prisoners, the ten most prevalent areas of concern and reform that emerged include: sentencing, mental health, health care, food, prisoner pay, old age security, education and vocational training, case management and staff culture, parole and conditional release conditions, and pardons.

Measurement Matters: Offense Types and Specialization.

Offender specialization-the tendency to repeat specific offenses-is the basis of practical orientations toward managing offending by the criminal justice system. Alternatively, dominant criminological paradigms postulate that offending versatility is the norm. We consider this incongruity by, first, considering "practice" in action, through the examination of the designations used by the Canadian criminal justice system to categorize offenders based on the assumption of specialization, and whether these determinations accurately reflect the offending behavior of offenders who have committed violent interpersonal crimes. Second, we compare several other measures of specialization among our population to investigate whether different measures produce similar findings regarding the repeat of specific offense types. Official criminal record data, from first offense to the end of the study date (2014), for a population of offenders in a western Canadian city who were convicted of violent interpersonal sexual and nonsexual offenses (N = 110), were used to examine the tendency toward specialization. We employ three measures of specialization: the specialization threshold, mean percent specialization, and the diversity index-across this group of career criminals. Results indicate that evidence of specialization depends on the way in which it is measured. Although there is some support for the treatment of individuals who sexually offend against children as a distinct group compared with those who are violent (sexually or nonsexually) toward adults, there is greater evidence of versatility among all offenders than there is of specialization. Our findings suggest that establishing the risk of future offending using models other than those geared toward offense specialization may be more effective for addressing offending patterns.

Restitution in the Context of Criminal Justice

In 2015, the Canadian Victims’ Bill of Rights, promised to recognize the rights of victims in the criminal justice system and introduced the right to restitution. Restitution, which consists of an amount of money paid by the offender to the victim in order to make redress for the harm suffered, involves numerous advantages, as well as significant disadvantages or limitations for victims. According to the Bill of Rights, “Every victim has the right to have the court consider making a restitution order against the offender,” and, in order to facilitate the victims’ restitution requests, together with the Victims’ Bill of Rights a standard form has been developed. As such, it important to examine the implementation of restitution orders within the criminal justice system in Canada and to question their effectiveness for victims. In this article, we delve into the concept of restitution in order to better understand its use, its function, and its reach in the Canadian criminal justice system. We examine how restitution orders are applied, their advantages and limitations for victims, and we present several alternatives from other justice systems.

Mental health issues and the Canadian criminal justice system*

The critics assert that a significant proportion of incarcerated individuals suffers from mental health issues, i.e. ‘the criminalization hypothesis.’ The current paper reviews the scholarly literature to address five interrelated questions: (1) What are the risks of those classified as mentally ill for committing crimes and, in particular, violent crimes? (2) As the gatekeepers to the criminal justice system, what happens during ‘first encounters’ between the police with those who have mental illnesses? (3) What community-based services are available for effective diversions as an alternative to incarceration for those with mental illnesses? (4) What are the impacts of treatment options upon those experiencing mental illnesses while incarcerated, including the impact upon recidivism? (5) What types of pre-release planning and community responses have the most positive effects to help reduce recidivism and assist offenders in coping with mental health issues in the Canadian context? After summarizing key evidence pertaining to these questions, the paper presents case studies as exemplars of ‘best practices’ to illustrate promising directions conducive to integrated, holistic, and effective responses at the intersection of the criminal justice and mental health systems.

‘I don‘t know what you people are so concerned about’: homicide survivors’ experience with the Canadian criminal justice system

Victims of crime are often confused and frustrated by the criminal justice process. Those who have lost loved ones to homicide – often called ‘homicide survivors,’ ‘secondary victims,’ or ‘co-victims’ – suffer not only loss and a justice system that seems to have little place for them, but are often also left unaware of the circumstances of their loved one’s death. The current study sought to further our understanding of the experience of homicide survivors in the Canadian justice system. Toward this end, in-depth, semi-structured interviews were conducted with five individuals who lost loved ones to homicide. Results showed that receiving information and being treated kindly were far more important than having an influence over the proceedings; additionally, there was a great deal of distrust of the justice system as a whole, regardless of the kindness shown by individual actors in the system. Policy implications and directions for future research are discussed.

Criminal Justice Models: Canadian Experience in European and Islamic Comparative Perspective

This paper examines Canadian models of criminal justice in a European and Islamic comparative perspective. The traditional model of Canadian criminal justice is a state centred adversarial one intended to punish, deter and/or rehabilitate offenders who are accorded formal due process protections embedded in a liberal constitutional and procedural rights. This model has been transformed recently into an ambiguously tripartite adversarial model through an overlay of victims’ rights at all stages. However, Canadian law also recognizes alternative processes through various forms of problem solving courts and sometimes comprehensive restorative justice approaches, the latter rooted in relational notions of rights. Meanwhile, criminal models in Europe have been evolving as well. The British common law model of criminal justice has arguably been transformed by statute into a state-centred managerial approach which has shifted the balance from due process toward crime control in a somewhat continental manner, while tolerating restorative justice experimentation at its periphery. On continental Europe, traditional judge-centered investigatory/accusatorial models have been the subject of adversarial due process reforms in differing ways, while “penal mediation” has been introduced to enhance victim satisfaction beyond historically available civil party recovery procedures. In the Muslim world, there has been a revival of Shar’iah law to varying degrees in many states, centered upon Islamic jurisprudential sources based on the Qu’ran, and Sunnah or Hadith, and reasoning through qiyas (analogy) to achieve consensus (ijma) in relation to the three traditional forms of Islamic offences with their distinct procedural characteristics. The victim-centred nature of flexible aspects of Islamic criminal law has led some to characterize Shar’iah as being suffused with restorative justice principles, despite widespread views to the contrary. Examination of the differences and similarities among these various models of criminal justice from “pure” and “applied” perspectives, leads to reflection on the capacity for criminal justice systems to evolve and change, and to tolerate significant levels of internal diversity, while demonstrating a wide range of potential forms for the instantiation of plausibly common values.

Experiences in the Canadian Criminal Justice System for Individuals with Fetal Alcohol Spectrum Disorders: Double Jeopardy?

The study explored the experiences of individuals in the criminal justice system with a Fetal alcohol spectrum disorder (FASD) in order to identify possible ways to reduce the likelihood of re-entry into the criminal justice system. Semi-structured interviews were conducted to capture the voices of two participant groups: (1) individuals with an FASD, and (2) professionals who work with clients with an FASD. Qualitative research methods were used to analyse the data. Analysis of 20 interviews (n = 21) yielded three major themes: (1) primed to enter the system, (2) hindered within the system, and (3) strengthened to move beyond the system. Participants identified biological (e.g., poor decision-making abilities and inability to self-advocate), psychological (e.g., mental health issues and victimization), and social factors (e.g., limited social support) that increased risk of re-entry into the criminal justice system. Participants also identified strengths (e.g., hope, willingness to change, and resilience) that could assist with more positive outcomes. The study provides insight into the unique experiences of individuals in the criminal justice system with an FASD – with reference to both risk factors and relevant personal strengths. Implications for practice are discussed, including suggestions for increasing support, awareness, and a focus on strengths.