Confronting Racism in the Criminal Justice System 2021

Course Date: June 2, 2021

Full Course Materials
Total: 6h 28min
Total Ethics: 6h 28min

Welcome and Land Acknowledgement (9:00 – 9:10)

Chief Leah Sisi-ya-ama George-WilsonTsleil-Waututh First Nation, Vancouver

Confronting Racism in the Criminal Justice System (9:10 – 9:25)

The criminal justice system is a fundamental societal instrument but it is not immune to the problems endemic to our societysystemic racism foremost among them. This is in large part due to the fact that the individuals tasked with enforcing, prosecuting, defending and applying the law, are, and have been, predominantly white and male.

  • How do we disrupt systemic racism and white privilege in the criminal justice system?
  • By examining each stage of the criminal justice process, can we expose its weaknesses and highlight responsibility?
  • How has the law evolved and in what ways is it still deficient?
  • What perspectives are important for Crown/defence/the bench to know? 
  • How are these issues raised in practice and what are the consequences of doing so?
  • What can we learn from other sectors that have undertaken initiatives aimed at eliminating systemic racism?
  • How do we move forward? How do we make decisions that seek to disrupt patterns of racism but also reflect the values of impartiality and fairness that the criminal justice system is meant to uphold? How can we work together?

Halie Kwanxwa'loga BruceCedar and Sage LLP, Cultus Lake
Nadia K. FarinelliCrown Counsel, Ministry of Attorney General, Vancouver

Lessons from Human Rights (9:25 – 10:15)

In the human rights context, there is a system that allows for addressing individual instances of racial discrimination. In the healthcare context, the review by Dr. Mary Ellen Turpel-Lafond engaged in an expansive investigation of systemic issues. What are some important lessons or findings from each of these contexts that may be considered in the criminal justice context?

  • What are the important elements of fact-finding in the individual context of racial discrimination? How important is it for those who have been victimized and those who have been accused, to have their voices heard?
  • The investigation into healthcare demonstrated the method of asking questions and proactively investigating racism in order to fully address it at a systemic level. To what extent is there a need for this kind of deeper dive in the criminal justice system?
  • What kinds of remedies are there for people experiencing incidents of racism that may or may not attain the status of a "hate crime"?
  • How do we define racial discrimination in the realm of human rights law?
  • How is that different from the way that we define and recognize racial discrimination in the realm of criminal law?
  • Are there aspects of the law of racial discrimination in the human rights realm that should be cross-applied to our criminal justice system?

Moderator: Kevin B. WestellPender Litigation, Vancouver

Susan EngDirector, Chinese Canadian National Council for Social Justice, Toronto
Kasari GovenderHuman Rights Commissioner of BC, Victoria
Dr. Mary Ellen Turpel-Lafond/Akikwe
Senior Associate Counsel, Woodward & Company Lawyers LLP, Victoria

BREAK (10:15 – 10:30)

Policing and Charge Assessment (10:30 – 11:20)

In BC, the Crown is responsible for evaluating police conduct in the context of charge assessment. Systemic racism at this stage influences issues such as arbitrary detentions, police violence/use of force, investigative techniques, and witness and victim credibility. The presence of race as a factor is often between the lines.

  • How does systemic racism in policing influence the charge assessment process?
  • What questions should be asked? How do we read between the lines? What is the Crown's role and responsibility at this stage? 
  • How do we detect or prove racism in policing?
  • What laws or instruments exist in BC (or nationally) that address the issue of systemic racism in policing? 
  • When should policing be characterized as racial profiling? Is it ever reasonable? 

Moderator: Nadia K. FarinelliCrown Counsel, Ministry of Attorney General, Vancouver

The Honourable Mr. Justice Michael H. TullochCourt of Appeal for Ontario, Toronto
Meenakshi MannoeCriminalization & Policing Campaigner, Pivot Legal Society, Vancouver

BREAK (11:20 – 11:30)

Bail (11:30 – 12:40)

  • How is the conditional release of suspects (for example, through police undertakings or judicial release) impacted by systemic barriers?
  • What are some practical constraints in the bail process that may result in differential treatment of detained persons or persons seeking release?
  • How can race or cultural background influence a person's access to bail?
  • What do we know statistically about the pre-trial detention of BIPOC persons? How do we account for racial disparity and what to do about it?
  • How should the court balance the presumption of innocence against the need to assess the risk of re-offending?
  • In what contexts is it important to be mindful of language, racialized characteristics, stereotypes, and bias?
  • How does unconscious bias impact risk-assessment?
  • What factors should influence the preparation of release conditions by police/Crown/the bench?
  • To what extent should Gladue form part of a bail analysis? Is Indigenous or cultural background relevant to the risk assessment?

Moderator: Leah B.M. FontaineCrown Counsel, Ministry of Attorney General, Duncan

The Honourable Judge David A. St. PierreProvincial Court of BC, Vancouver
Daniel SongPringle Chivers Sparks Teskey, Vancouver

LUNCH (12:40 – 1:15)

Keynote Presentation: Confronting the Elephants in the Room: Having the Difficult Conversations About Racism (1:15 – 1:35)

Chief Commissioner Marion R. Buller Murdered and Missing Indigenous Women and Girls Inquiry, Vancouver

Trial (1:35 – 3:00)

Taking a deeper look at how racism impacts the conduct of trials, our speakers will explore some of the following questions:

  • What is Crown Counsel's role and responsibility if racism is detected during early case preparation such as a pre-trial interview with the investigating officer?
  • As Defence Counsel, how do you go about trying to prove racism played a part in the police investigation? What are the mechanics of establishing or raising the issue of race at trial?
  • What role does access to justice play in an accused's ability to prove systemic racism or racial profiling?
  • Have we seen any improvements in recognizing the role of systemic racism since the case of R. v. Le, 2019 SCC 34?
  • View from the Bench: Have the principles set out in R. v. S. (R.D.), [1997] 3 S.C.R. 484 been revived and what lessons might be (re)-learned from this case? 

Moderator: Gloria M. NgGloria Ng Law, Vancouver

The Honourable Mr. Justice Leonard S. MarchandCourt of Appeal for BC, Kamloops
Jamala C. MacRae
Crown Counsel, Ministry of Attorney General, Port Coquitlam
Professor Kent W. RoachUniversity of Toronto Faculty of Law, Toronto
Nana Yanful
Legal Director, Black Legal Action Centre, Toronto

BREAK (3:00 – 3:15)

Sentencing (3:15 – 4:25)

  • A comprehensive look at Gladue reports and the over-representation of Indigenous people in the criminal justice system.
  • When you don't have a formal Gladue report: how to use Gladue factors in sentencing Indigenous people; changing the conversation to one of resilience and strength; creativity in sentencing.
  • How to raise the issue of a racialized background of a non-Indigenous person as a relevant factor for the court to assess when determining an appropriate sentence.

Moderator: Jamala C. MacRae Crown Counsel, Ministry of Attorney General, Port Coquitlam

The Honourable Judge Linda D. ThomasProvincial Court of BC, Fort St. John
The Honourable Madam Justice Lori Anne Thomas
Ontario Court of Justice, Toronto
Douglas S. White, QC KwulasultunChair, BC First Nations Justice Council, Nanaimo

Moving ForwardMaking Change (4:25 – 5:00)

Halie Kwanxwa'loga BruceCedar and Sage LLP, Cultus Lake
Nadia K. FarinelliCrown Counsel, Ministry of Attorney General, Vancouver
Leah B.M. Fontaine Crown Counsel, Ministry of Attorney General, Duncan
Jamala C. MacRae Crown Counsel, Ministry of Attorney General, Port Coquitlam
Gloria M. Ng Gloria Ng Law, Vancouver
Kevin B. Westell Pender Litigation, Vancouver