One step forward, two steps back: the SCC, immigration & refugee law and discretion

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The myth of the neutrality of law

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*Please take note that this blog will soon be moved to juriblogger.com. A notification will be posted on this site when the change occurs.

A few days ago, I read a comment on twitter referring to the Zimmerman case in the US (involving the alleged murder of Trayvon Martin, a black teenager, by a Latino man who followed him during is “neighbourhood patrol” because he looked “suspicious”) affirming that the legal problem with this case was how the statute was written and not racism per se stating that law is neutral and cannot be racist (the tweet was posted before Zimmerman’s acquittal; I wonder if the person feels different now). I don’t know how the Florida Criminal Code is written and I don’t actually need to know how it is written to affirm that the law is not neutral nor is the justice system. And as Zimmerman’s acquittal shows, “Justice” is not blind.

For many, the above statement is obvious. But the neutrality of the law is a myth that is well entrenched in our political system. Lawyers and other jurists are often the first to affirm this absurd axiom. I have heard many times, in graduate legal courses of all places, that the law is separated from the rest of social science, its own little world (maybe the jurists are the blind one, not justice). Law is obviously not an impermeable phenomenon in our society; it is merely a part of it, a small part. It is very permeable as society decides what constitute law and what the laws are, and in return the laws and the legal system define the society. Laws are as racists as the society who adopted them. To take the Zimmerman case as an example, to answer the question was the acquittal the result of racism (internalized or overt) you simply have to ask is the American society racist? If the murder of Trayvon Martin truly was an isolated incident of racism, the verdict would have been different. But no, a jury panel of 6 women, none of whom were black, found Zimmerman the protector not guilty. If Trayvon would have been white, Zimmerman would be in prison. You only have to know how to use google to find similar cases with white victims and black perpetrators rotting in jail, often for a disproportionate amount of time (not to say they might have not been guilty in the first place).[1]

Of course this is far from being only an American issue. In Canada, for example and to stay in the realm of criminal law, racial bias in the justice system particularly affects Aboriginal people. Aboriginal people in Canada represent 3.8% of the total population yet they represent 26% of federal, provincial and territorial custodial admissions.[2] Parliament and the Supreme Court have both made attempts to limit over incarceration of Aboriginal people.[3] The Supreme Court itself recognised the plague that is racism and its effects on the justice system:

[58] Although they acknowledged the existence of widespread bias against aboriginals, both Esson C.J. and the British Columbia Court of Appeal held that the evidence did not demonstrate a reasonable possibility that prospective jurors would be partial. In my view, there was ample evidence that this widespread prejudice included elements that could have affected the impartiality of jurors.  Racism against aboriginals includes stereotypes that relate to credibility, worthiness and criminal propensity.  As the Canadian Bar Association stated in Locking up Natives in Canada:  A Report of the Committee of the Canadian Bar Association on Imprisonment and Release (1988), at p. 5:

Put at its baldest, there is an equation of being drunk, Indian and in prison.  Like many stereotypes, this one has a dark underside.  It reflects a view of native people as uncivilized and without a coherent social or moral order.  The stereotype prevents us from seeing native people as equals.

There is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system: see Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada, at p. 33; Royal Commission on the Donald Marshall, Jr., Prosecution: Findings and Recommendations, vol. 1 (1989), at p. 162; Report on the Cariboo-Chilcotin Justice Inquiry (1993), at p. 11.  Finally, as Esson C.J. noted, tensions between aboriginals and non-aboriginals have increased in recent years as a result of developments in such areas as land claims and fishing rights.   These tensions increase the potential of racist jurors siding with the Crown as the perceived representative of the majority’s interests.[4]

Regardless of all these recognition and attempts to deal with the problem through legal means, over incarceration of Aboriginal people continues and increases. The Supreme Court even felt like it was necessary to reaffirm its principle on Aboriginal sentencing after lack of progress and misapplication.[5] This is because the law is but a social construct. The law is as good as the people who adopted it, enforce it and interpret it. Unless humans can be completely objective – including police forces, judges, jurors, prosecutors, lawyers, lawmakers, etc. – the law cannot be neutral. And all actors count. If you adopt the best statute ever, it will be useless if it is not applied. If you have the most impartial justice system, it will be useless if the laws are biased. Over incarceration of Aboriginal people will continue as long as racism in Canadian society continues. The neutrality of the law is a myth, a myth we should get rid of since as long as it is propagated we will be unable to truly tackle the reforms that are needed, including racism in the justice system.


[1] See this for one example. For racial disparities in sentencing see: Tushar Kansal, Racial Disparity in Sentencing: A Review of the Literature, Washington: The Sentencing Project, 2005 (online); and Paul J. Hofer, Fifteen Years of Guidelines Sentencing – An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform, Washington: US Sentencing Commission, 2004, at Chapter 4 (online); see also How is the Criminal Justice System Racist?, Political Research Associates, 2005 (online).

[2] Statistic Canada, “Aboriginal Population at a Glance”, online: http://www.statcan.gc.ca < http://www.statcan.gc.ca/pub/89-645-x/2010001/count-pop-denombrement-eng.htm >; and Statistic Canada, “Adult correctional services, admissions to provincial, territorial and federal programs”, online: http://www.statcan.gc.ca < http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/legal30a-eng.htm >.

[3] See s 718.2(e) of the Criminal Code, RSC 1985, c C-46; R v Gladue, [1999] 1 SCR 688; and R v Ipeelee, 2012 SCC 13.

[4] R v Williams, [1998] 1 SCR 1128.

[5] R v Ipeelee, 2012 SCC 13.

Mexican Queer Refugees Need Not Apply

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*Please take note that this blog will soon be moved to juriblogger.com. A notification will be posted on this site when the change occurs.

We are all aware (hopefully) that the human rights situation, especially for LGBTQ people, is highly variable around the world. Many means of advocating for changes in countries with less enviable situation than ours (and by ours I mean Canada specifically but the global west generally) make me uneasy as they are often tainted with imperialism and colonialism, even if unconsciously. Beside direct interventions and other saviour type interventions, one thing that can help and does not require forcing western values down developing countries’ throat is welcoming and protecting refugees. It is the 1951 Refugee Convention and its 1967 Protocol,[1] adopted in the aftermath of the Second World War as a reaction to States who turned back Jewish and other refugees, that establish the prohibition to return refugees to their country of origin (the obligation is called non-refoulement). Crucial to this obligation on State is the determination of refugee status which is done mainly by the State in accordance with the Convention or by the Office of the United Nations High Commissioner for Refugees (UNHCR). In Canada it is the Immigration and Refugee Protection Act that governs refugee status.[2]

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