Following article apperaed in the Toronto Star on Feb 25, 2004. After reading this article you decide if racism exist in Canada.... it is worth reading

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Biomed

Why race matters on sentencing


DAVID M. TANOVICH

This is black history month and, coincidentally, the Ontario Court of Appeal recently heard three sentencing cases involving poor single young black mothers who received sentences of house arrest for importing cocaine into Canada.

The justice department appealed the sentences, arguing that these women should be sent to the penitentiary, in accordance with the sentencing guidelines, and their children to foster homes.

They appear to be profoundly troubled by the fact that the trial judges followed the lead of earlier decisions and took into account systemic racism in order to free themselves from the rigid application of the sentencing tariff.

So troubled, in fact, that they have made the outrageous claim that one of the judges was possibly biased. They even attempted to kick off the case a coalition of black groups who had intervened a few days before the appeal.

Unfortunately, it seems that every time this issue gets discussed or reported, pejorative terms such as "discount," "special sentencing regime" or "playing the race card" are used to describe what the court or lawyers are doing.

But why? Why do Canadians have so much trouble understanding why race is relevant to sentencing?

Perhaps it is the belief that Canada is a tolerant country and therefore race is irrelevant. Well, we are not and have never been.

With respect to anti-black racism, Canada has a 200-year history of slavery and a 20th-century history of racial segregation and exclusion and substantial Ku Klux Klan activity.

In a recent report filed by the African Canadian Legal Clinic on Canada's compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, it was documented that racism remains prevalent in education, housing, employment, the media, social services, immigration and the criminal justice system.

Formal equality only serves to perpetuate inequality, not relieve it. It assumes that there has been a fair start. But that is simply not our history. By taking race into account we are simply levelling the playing field.

Perhaps the outrage stems from the belief that what is really relevant to sentencing is poverty, and not race.

While poverty is certainly a relevant factor, the experience of racism must be given special attention. Poverty can be hidden. Race cannot.

Education and employment allow individuals to escape poverty. But not racism. Poverty is not linked to police shootings. Race is. Poverty does not, generally speaking, attract significant police attention. Race does.

Poverty is irrelevant in screening potential jurors for bias. Race is not. Poverty rarely results in the imposition of disproportionately longer sentences. Race does. Poverty rarely leads to deportation. Race does.

So how then is race relevant to sentencing?

On a global level, Canada has one of the highest rates of incarceration. This is a serious problem. It is precisely why the same government that is appealing these cases enacted a sentencing regime in 1996 to enable judges to give greater emphasis to restraint, alternatives to incarceration and to give special attention to those groups who are overrepresented in our prisons.

To the extent that sentencing can be used to remedy this serious social problem, race is relevant where it is linked to overrepresentation.

Parliament was satisfied that there is a problem of aboriginal over-representation and specifically demanded that special attention be given to their situation. Black offenders are also overrepresented in our prisons and in some parts of Canada to a greater degree than aboriginal offenders. Ontario data from the 1990s reveals a black prison admission rate of 3,686 per 100,000, an Aboriginal rate of 1,993 per 100,000, and a white rate of 705 per 100,000.

Over-incarceration is also relevant to general deterrence, that is, using the threat of prison to send a message that if you commit the crime you will do the time.

If a group is already over-incarcerated and already faces significant social and economic dislocation, it is a myth to think that prison will deter other members of that group.

At the individual level, we largely sentence people to put them on the road to rehabilitation and to denounce their conduct. Can it really be said that a young black woman who has faced discrimination and exploitation for all of her life is going to be rehabilitated by going to jail for two or three years, particularly where it will result in the loss of her children?

The discrimination and exploitation will continue behind bars and she will likely emerge with even more psychological and physical scars than when she entered.

The same issues are raised where the offender is a young black male charged with a drug or gun offence.

It is not these individuals who, generally speaking, need rehabilitation or denunciation but Canadian society. Until greater efforts are made to remove the barriers, we will continue to have the black community exploited by criminal elements.

As the Supreme Court recognized in R. vs. Gladue, "Sentencing innovation by itself cannot remove the causes of ... offending" but judges can play a limited role in "remedying injustice."

If we as a society are not even prepared to recognize that race still matters, and be prepared to take some remedial steps where its effects may be most pronounced, then we will never be able to escape the bonds of racism.

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"Change before you have to" : Jack Welch