Is justice system blind to colour?

Jul 21, 2008 04:30 AM
Jim Rankin
Betsy Powell
Staff Reporters

Visible minorities charged with a crime in Canada are less likely to
be convicted, but more likely to have a DNA sample taken. They're also
more likely to have police warnings on their file for violence, escape
risk and suicidal behaviour.

These differences were identified in a Star analysis of the criminal
histories of nearly 3 million people. The data comes from the Canadian
Police Information Centre database, in which race is recorded as white
or non-white.

While the differences between the two groups are clear, the reasons
for them are less so. On the surface, they raise questions about the
fairness of Canada's justice system.

The data, obtained in an access to information request that took 2 1/2
years, is a snapshot of Canadian criminal histories as of late 2005.
The cases were serious enough to require fingerprints and were
submitted by local police to the RCMP-administered CPIC database in
Ottawa.

The Star asked criminologists, lawyers, a judge, and a police chief
for their theories on the key differences.

NO CONVICTION

The data obtained by the Star contains two kinds of files: 2.4 million
criminal records where a conviction was registered and 500,000
criminal histories, where there was a charge but no conviction.

A "no conviction" notation means there was one of the following:

an acquittal;
a withdrawal or stay of charges;
a finding of guilt but an absolute or conditional discharge upon
sentencing.
Even without a conviction, the record of having been charged can
remain for years in the CPIC database, which is accessed tens of
millions of times a year by police, other enforcement agencies and
even potential employers.

The Star's analysis of the data shows that non-whites were 53 per cent
more likely than whites not to be convicted.One explanation for the
difference is that judges could be giving more discharges to non-white
offenders as a "reward" for dead time spent in jail awaiting trial.
The 1995 Report of the Commission on Systemic Racism in the Ontario
Criminal Justice System determined that black accused, for example,
are more often held without bail.

"My guess," said an Ontario judge who reviewed the findings but who
asked not to be identified, "is that if the 'non-whites' have spent
more time than 'whites' in pre-trial custody, one of the ways judges
may 'reward' them is by giving a discharge rather than registering a
conviction, especially as there may be immigration consequences if a
conviction is registered."

That same systemic racism report found that black accused were more
likely than white accused to plead not guilty, which would increase
the chance of not being convicted.

Defence lawyer Daniel Brown, of the Toronto law firm Pinkofskys,
suggests there is over-charging in cases where there are multiple non-
white accused.

"We see this all the time in large gang projects where hundreds are
arrested and thousands of charges are laid, only to see a few accused
left at the end of the day facing a handful of charges."

There have been similar sweeps of Aboriginal gangs out West, which
might also explain this phenomenon.

University of Windsor law professor David Tanovich also pointed to
overcharging as a possible explanation, but also saw something
positive in the data differences.

It may mean, he said, that more Crowns are "withdrawing charges they
feel are the product of racial profiling. This is a positive thing."

Scot Wortley, a University of Toronto criminologist who has devoted
most of his academic career to examining bias in the justice system,
said the differences in conviction rates could damage the reputation
of police.

"For whatever reason, the data suggests that minorities are much more
likely to be charged without enough evidence for prosecutors to get a
conviction.

"If they are concentrated in particular communities, it could
undermine the legitimacy of law enforcement – that the community
itself may believe police lay bogus or unwarranted charges as a means
of harassment."

Lawyer Adam Weisberg, also with Pinkofskys, suggests fewer findings of
guilt for non-whites were due to heavier policing in poorer
neighbourhoods with a higher proportion of new immigrants. "In a
neighbourhood with a heavy police presence there are more charges, and
with quantity, there is often a decline in quality."

Toronto police chief Bill Blair, president of the Ontario Association
of Chiefs of Police, says the explanations suggested by defence
lawyers are "quite predictable."

"It is the job of defence counsel to create reasonable doubt,
obfuscate, and one of the ways they might do that is to undermine the
credibility and confidence the criminal justice system would have in
the police," says Blair.

"So they're suggesting the police would be responsible for this in the
absence of a great deal more information which would be required to
determine what is really going on."

Police do deploy more officers in troubled neighbourhoods "where are
people being hurt, where people are being injured, where violence is
taking place," says Blair. "Yes, there are criminal acts that take
place in other neighbourhoods but they don't represent the same level
of risk to the broader community."

As for his thoughts on the difference on convictions, Blair said he
would need to know more.

"Without knowing what charges we're talking about, what were the
reasons by which they were not convicted . . . it would be difficult
to speculate on why that would be."

DNA DIVIDE

The Star analysis of CPIC data shows that 32.5 per cent of those
required to provide DNA samples were non-white, even though non-whites
make up only 16.7 per cent of those with criminal records.

For sex crimes, kidnapping and murder, a DNA sample is required upon
conviction, although Canadian judges have been scolded for not always
ordering samples when they are supposed to.

For other major, yet less serious crimes, such as criminal mischief,
robbery and assault, judges have discretion to decide if DNA should be
taken.

The difference in who gives samples cannot be explained simply by
differences in the seriousness of charges. (Non-whites account for a
disproportionately high 23.9 per cent of records for violent offences;
the same for robbery.)

Comparing the same kinds of criminal records still shows a difference
between whites and non-whites. For example, of people who have a
criminal record for violence, 10.5 per cent of non-whites had DNA
taken versus 6.1 per cent of whites.

For with a record for robbery (and nothing else) non-whites are 50 per
cent more likely to have had a sample taken.

"The DNA stuff is troubling," the judge who reviewed the data analysis
said in an e-mail. "One would have to know if the charges are
different – i.e. if `non whites' are charged more frequently for
offences likely to carry a mandatory requirement for a DNA sample, or
whether judges are ordering them more where they have a discretion to
do so. I don't know about that, and I haven't heard any rumblings
about that as an issue."

Brown, the lawyer with Pinkofskys, questions giving judges discretion
to order DNA. It "leaves open the possibility that bias may play a
role – consciously or unconsciously – in the decision-making process."

Chief Blair says the difference here is "interesting," but believes it
reflects differences in the kinds of crimes being committed by the two
groups.

DANGER WARNINGS

Non-whites are more likely to have warnings on their file than whites
indicating they are considered violent or a suicide risk. These, along
with notations for mental instability and escape risk, are entered by
local police forces.

The differences remain even when looking at whites and non-whites with
similar records.

For example, of those with criminal records for violent offences, non-
whites are more likely to also have a notation for violent behaviour
marked on their record.

Chief Blair believes the difference here simply reflects reality and
that skin colour is not a factor. The warnings are "determined
entirely by the behaviour and the crime in which they're charged."

Police routinely see these warnings while accessing CPIC records from
computers in their cruisers and that helps "protect" officers, says
Blair.

But Wortley says having more warnings can "lead to an exponential
increase" in how harshly the justice system handles individuals. "It
might justify further surveillance. It might justify holding somebody
for bail. It may justify tougher treatment when individuals discover
that the special designation exists."

Wortley connected the extra warnings on the records of non-whites with
a study he and a colleague did of Toronto courts in the early '90s. It
examined more than 1,800 criminal cases handled in two bail courts and
determined that visible minorities were more likely to be detained
before trial. And, if they were released, they were much more likely
to have special conditions on their release, which gave police power
to stop and search them, increasing "their chances of ultimately
ending back in the justice system."

York University Professor Frances Henry and Carol Tator, researchers
who have co-authored a book on racial profiling in Canada, also
reviewed the data. In an e-mail, they say the differences in danger
warnings are "in line with the racial profiling evidence shown in much
of the literature both here and abroad in which extra surveillance and
scrutiny especially of blacks is often emphasized."Said the judge: If
"such notations are in the discretion of the police officer, that is
troubling. But one would need to know a lot more before one could say
that this amounts to direct/intentional discrimination."

The Star also asked the Canadian Association of Black Lawyers to
review the differences. President Frank Walwyn echoed a point raised
by ...

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