In theory, Canadians have equal rights. In practice, they do not.
Our justice system is neither fair nor accessible. It works best for the economic and social elites who have access to money and are not burdened by biases and systemic discrimination.
The criminal justice system suffers from systemic racism. Indigenous peoples and racialized communities are over policed and over incarcerated. Rehabilitation principles are not sufficiently considered within the criminal justice system.
In the civil justice system, which includes areas such as personal injury and family law, only the very wealthy can afford to access the legal system or seek justice. Given the feminization of poverty, women are most acutely affected and unable to pursue their rights under the law.
In addition, technology is being used by both governments and private companies in Canada in ways that threaten to further erode human rights in Canada. These technologies need to be better understood and better regulated.
Ultimately, the legal system does not fulfil the basic function of a justice system, which is to provide citizens with security, dignity and compassion. Though some reforms have been undertaken, they are inadequate and incomplete.
Police and Prosecution Reform
Indigenous and racialized communities are over-policed. Racialized communities and those living at a lower socio-economic status are disproportionately “randomly” stopped and carded. Not only are these stops arbitrary, the information that collected from them is not well regulated and police forces are sharing information without considering the privacy interests of people who are stopped or that the information collected might be improperly used. (See https://www.mcscs.jus.gov.on.ca/english/Policing/StreetChecks/ReportIndependentStreetChecksReview2018.html#part_I).
- Reduce funding for the RCMP by 25% over a five-year period and reallocate the savings to initiatives and systems that empower communities to promote their wellbeing and prevent violence before it escalates. This reallocation of funding is particularly important in marginalized communities where policing disproportionately occurs.
- Strengthen civilian oversight of the RCMP by requiring the Civilian Review and Complaints Commission (CRCC) to disclose its reports in any case where the complainant and witnesses to the alleged RCMP misconduct consent to disclosure, and by requiring the CRCC to track and disclose annually data on the racial background of complainants. Also, the CRCC’s recommendations should be made enforceable so that the RCMP no longer has the authority to disregard its recommendations.
- Conduct an external human rights audit of the RCMP annually to ensure progress against human rights indicators. The goal of this audit would be to support cultural change within the force and prevent further harassment and discrimination by the RCMP as detailed in the Merlo Davidson class action settlement. The RCMP sought over $50 million dollars in extra funding to pay for this class action alone. This money would have been better spent serving communities than paying for decades of harassment and human rights abuses. (On the budget request, see https://www.canada.ca/en/department-national-defence/corporate/reports-publications/proactive-disclosure/vac-estimates-budget/rcmp-estimates-budget.html On the settlement, see https://merlodavidson.ca/en/rcmp-settlement/the-agreement/)
- Institute a major programme of training in non-violent policing aimed at enhancing the trustworthiness of the police within the communities they serve.
- Require the police to recruit so that the force reflects the racial, gender and orientation composition of the population it serves and ensure that trainers are experts in equality, diversity and inclusion principles and practices.
- Ban all training exercises between Canadian police and foreign police forces that have a record of infringing civil liberties or human rights.
- Institute a national ban on carding, and prohibit the RCMP and CSIS from receiving or using information obtained from carding.
- Monitor prosecutorial decision-making for biases and tunnel vision in the exercise of the decision to prosecute offenses. This can be done, in part, by introducing a “contrarian thinking advocate” within Crown Prosecutors offices as recognized by the Public Prosecution Services of Canada. (see https://www.ppsc-sppc.gc.ca/eng/pub/is-ip/ch2.html#ch2_4)
Prison and Parole Reform
Indigenous and racialized communities are over-incarcerated, and are treated unequally within the prison system.
In January 2020, Canada’s correctional commissioner revealed that over 30% of inmates in Canadian prisons are Indigenous – even though aboriginal people make up just 5% of the population. Between 2005 and 2015, the number of black inmates in Canada’s federal prisons ballooned by 69%.
Experts have been sounding the alarm for years. For example, in 2017, the John Howard Society reported the following:
"The extent to which blacks and Aboriginals are over represented in Canadian correctional institutions is similar to that of African Americans in the United States. Blacks are over represented in federal prisons by more than 300% vs their population, while for Aboriginals the over representation is nearly 500%. The same disparities exist in provincial jails. In Nova Scotia Blacks are 2% of the population but 14% of the jail population. In Manitoba Aboriginals are 16% of the population but 70% of the jail population. In Alberta the numbers for Aboriginals are 6% and 39%. Moreover, these imbalances are getting worse, not better."
"Once in jail, these minorities are more likely to be subject to disciplinary procedures and less likely to be paroled. Aboriginal people make up more than 21% of federal prisoners but less than 14% of parolees, a 50% under representation."
- Institute a requirement that, at the outset of incarceration, correctional authorities develop a personal rehabilitation plan (PRP) that is tailored to the needs and circumstances of each incoming inmate. PRP’s will be subject to periodic audits by an independent auditor to ensure that they are effective and are implemented.
- Institute a requirement that the criminal justice system be guided by the principle that prison is a last resort, and that prolonged prison sentences should be reserved for only the most extreme and intractable offenders.
- Eliminate mandatory minimum sentences.
- Make rehabilitation, not punishment, the primary guideline for both sentencing and prison management. The greatest security for society will be achieved if offenders do not re-offend.
- Institute a prohibition on solitary confinement, which constitutes torture (For an update on developments, including critiques of legislation that purportedly ended solitary confinement, see this overview dated Dec. 1, 2019: https://theconversation.com/the-end-of-solitary-confinement-in-canada-not-exactly-124679#:~:text=As%20of%20Dec.,Sort%20of.&text=The%20act%20eliminates%20administrative%20and,also%20known%20as%20solitary%20confinement.)
- Give effect to The Truth and Reconciliation Commission’s Calls to Action as they relate to the justice system, including calls for funding to ensure community based sanctions and realistic alternatives to imprisonment. (See paragraphs 25-42 of the Calls to Action: http://trc.ca/assets/pdf/Calls_to_Action_English2.pdf)
Rather than solve the problem of bias within the criminal justice system, the current government has allowed it to get worse by failing to regulate the development and use of so called “predictive” software across the criminal justice system and other areas of law, without understanding how these systems perpetuate unfairness and bias. (Predictive software is software that purports to “predict” who is at most risk of (re) offending. The technologies hide and perpetuate biases.) As the Law Commission of Ontario has emphasized:
“Critically, there is no legal framework in Canada to guide the use of these technologies or their intersection with foundational rights related to due process, administrative fairness, human rights, and justice system transparency.” (Automated Decision Making in the Criminal Justice System at p. 4, https://www.lco-cdo.org/wp-content/uploads/2019/11/LCO-Crim-AI-Background-Package.pdf)
Canada should therefore also:
- Ban the use of predictive software until it can be demonstrated that it does not adopt and perpetuate existing racial and other biases (see https://www.lco-cdo.org/wp-content/uploads/2019/11/LCO-Crim-AI-Background-Package.pdf)
- Develop a legal framework to guide the use of these technologies to ensure that they do not automize the violation of human rights and freedoms.
Access to Justice
In 2015, Beverly McLachlin, then Chief Justice of Canada, declared that we have an access to justice crisis in this country. (See https://www.scc-csc.ca/judges-juges/spe-dis/bm-2015-08-14-eng.aspx)
The cost of legal representation is beyond the means of many. In 2015, the national average cost of a two day trial exceeded $30,000 for the first time. The numbers have not gone down since then, and in some cases, they have gone up. (See https://www.canadianlawyermag.com/surveys-reports/legal-fees/the-going-rate/269815)
Given the costs of getting legal representation, an increasing number of Canadians are forced to represent themselves in court at great risk to their rights and their psychological well-being.
Poverty in Canada is gendered and racialized. Women and other vulnerable communities are most affected by the fact that legal aid is generally not available outside of criminal law.
Moreover, the inability to access the legal system means that women remain in abusive relationships and/or continue to suffer harassment and other forms of discrimination in the workplace. These forms of violence are the main reasons why women live in poverty in the workplace. (See https://www.leaf.ca/leaf-files-submission-to-the-law-society-of-ontario-access-to-justice-consultation/)
Domestic violence has risen with the pandemic.
Women need to access justice, especially in the family law context, but they are the least likely to be able to afford a lawyer. Even the most inexperienced family lawyer in Canada bills an average of $200 per hour. (See https://www.canadianlawyermag.com/staticcontent/AttachedDocs/CL_Apr_18_LegalFeesSurvey.pdf)
Without access to affordable and competent legal representation, individuals cannot navigate the civil justice system effectively. While a number of solutions have been proposed, these remain inadequate without the injection of more funding into the system. (For an overview of some of the innovation, see http://www.justicedevelopmentgoals.ca/sites/default/files/canadajdg_report19_en.pdf)
Canada should therefore:
- Implement an Access to Justice tax on corporate litigants equivalent to 1% of all damages recovered by corporations in litigation (whether by way of judgment or settlement). Revenues generated by the tax will be used entirely to fund legal representation for individuals, especially in family law, who require representation but who cannot afford a lawyer.
- Implement a second Access to Justice tax on all members of the legal profession equivalent to 5% of their net income from the practice of law in excess of the current median income in Canada. Revenues generated by this tax will also be used entirely to fund legal representation for individuals who cannot afford a lawyer.
- Adopt legislation obliging all lawyers practising before Canada’s federal courts, tribunals and regulatory agencies to devote a minimum of 100 hours per year to pro bono legal representation of indigent and low-income Canadians.
- Ensure that women, especially women trying to escape domestic violence, have adequate legal representation by increasing the scope of legal aid and ensuring the availability of duty counsel.
- Take other immediate measures to address the costs, complexities and delays that plague the family law system, an area of law that encompasses both federal and provincial jurisdictions.
Holding Corporations Accountable
- Ban the use of deferred prosecution agreements for corporate entities and their directors and officers.
- Ensure that corporations are held accountable for environmental degradation. (For example, see https://www.cbc.ca/news/politics/environment-commissioner-julie-gelfand-disturbing-climate-change-1.5081027)
- Regulate Canadian companies that participate in the production and sale of spy software for regimes that violate human rights, and regulate against the increasing use of spyware technologies in Canada, especially against human rights defenders and journalists. (See https://citizenlab.ca/2018/09/hide-and-seek-tracking-nso-groups-pegasus-spyware-to-operations-in-45-countries/ and https://www.theguardian.com/world/2020/jan/16/israeli-spyware-firm-nso-hacking-case)
- Prohibit spyware companies that participate in human rights abuses from securing contracts in Canada to track coronavirus (or any future public health tracking), as they have proven themselves to be untrustworthy. (See https://www.bbc.com/news/health-52134452)
- Suspend Canadian arms sales to Saudi Arabia. (See https://takeaction.amnesty.ca/page/35358/action/1?gclid=EAIaIQobChMI3YS7pOeV6gIVirbICh2POwKOEAMYASAAEgIsR_D_BwE)
Reforming Judicial Appointments
The current process for appointing judges gives too much power to the Prime Minister and the executive branch of government to choose appointees. There is insufficient consideration given to diversity beyond gender. (For a breakdown of appointments by gender, see https://www.fja.gc.ca/appointments-nominations/judges-juges-eng.aspx)
The judiciary must represent the racial, gender and class make-up of the people of Canada, but currently it does not. The first Black Canadian was appointed to the Ontario Court of Appeal only as recently as 2012 (The Honourable Michael Tulloch). In 2018-19, 86 judges were appointed to superior courts by the federal government. But, only two identified as indigenous and only four identified as racialized. No persons with disabilities or LGBTQ+ judges were appointed. (See https://www.fja.gc.ca/appointments-nominations/StatisticsCandidate-StatistiquesCandidat-2019-eng.html)
Those who participate in the judicial appointment process must demonstrate expertise in equity, diversity and inclusion, including implicit bias, and better diversity stats need to be kept.
There has never been an indigenous appointment to the Supreme Court of Canada despite many qualified candidates. An indigenous person must be appointed to the Supreme Court.
- Keep more thorough statistics on the diversity of judicial appointments.
- Appoint an indigenous person to the Supreme Court at the very next opportunity.
- Adopt legislation conferring on Canadian Courts universal jurisdiction for prosecuting war crimes and crimes against humanity; eliminate any requirement that a prosecution for war crimes or crimes against humanity be subject to cabinet-level approval.
- Amend Canada's human rights and environmental laws to guarantee the right of victims of human rights abuses by foreign subsidiaries of Canadian companies to sue Canadian parent companies in Canadian courts.
The Secret State
Governments should be transparent, people should be able to maintain their privacy. But, Canadians are increasingly subject to intrusions on their privacy and constitutionally protected rights. At the same time, government is increasingly becoming less transparent, especially as it pertains to the use of surveillance technologies and data surveillance, including in the response to coronavirus. (See https://ccla.org/coronavirus-update-data-surveillance/)
- Ensure that rights protections are guaranteed and effectively implemented in relation to digital and data surveillance. (See https://iclmg.ca/digital-surveillance-covid-19/)
- Prohibit the routine surveillance of Canadians who protest against the government and the sharing of protesters and NGO staff information with the National Energy Board, and others.
- Amend the legislation governing CSIS to ensure that CSIS is subject to the same due process requirements as domestic police forces.
- Like the RCMP, subject CSIS to internal audits for compliance with human rights standards and to ensure equality within its ranks. If CSIS is biased and unable to respect human rights within its own ranks, it cannot do so in fulfilling their duties. (See https://theconversation.com/why-charging-incels-with-terrorism-may-make-matters-worse-139457)