Introduction Aboriginal people in federal and provincial prisons.

Introduction

We
live in a society where race is often seen as a vital part of an individual’s
identity and it’s an important factor which prevents people from developing
their own personality and initiative. Racism is extremely ingrained in our
society –  race, gender and social class
are important issues that Critical Race Theory (CRT) discusses. These issues
are brought forth through theoretical and interpretive modes which examines the
appearance of race and racism across dominant cultural modes of expression in
society. CRT, examines the scope of racism and how this is ingrained in both
the legal, cultural and psychological aspects of an individual’s life. This
essay provides one with an opportunity to explore this theory and its influence
in the legal context and how racisms has effected Canadian Aboriginal’s. This
theory was developed by the American Civil Rights Movements and it continues to
gain support today. Additionally, CRT believes that by ignoring racial
differences, it perpetuates the injustices occurring to racial minorities.
Critical Race Theory has also helped
to develop many ideas relating to social class and the factors that are
involved. In contemporary society, issues with race and racism are still an
ongoing issue. CRT is perhaps one of the fastest growing and most controversial
movements in recent years. This
movement has stirred up considerable debate among Critical Legal theorists who
study Critical Legal Studies (CLS). Furthermore, CLS is a theory which as laid
the foundation for CRT. CLS challenges and disputings the accepted norms and
standards in a legal system. This theory asserts that law and politics should
not be separated. This is a novel approach, as this thinking was not developed
until the 1960’s and 1970’s. However, CRT was inspired in part of by the
failure of CLS which had not discussed racial issues in a legal context. In
Canada, it is important to discuss the relevance of CRT in order to better
understand the socio-legal issues facing our Aboriginal people. In the Canadian
Criminal Justice System, there is an over representation of Aboriginal people
in federal and provincial prisons. A disproportionate number of men and women
of Aboriginal descent are incarcerated compared to any other ethnic group. By
studying CRT this will help to understand why these issues are still occurring
and what may be done in order to reduce the number of Aboriginal
incarceration.  

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Theoretic Framework                                                              

CRT began in the mid- 1970’s in an
“effort to revitalize what was perceived to be a stalled movement of civil
rights struggles of the 1960s” (Pavlich 130). CRT emerged as a concept to
confront race and racism in a legal context in the United States. As a result,
various links emerged such as critical legal studies which created an “overall
critique of law as a neutral set of rules” (Pavlich 130). Like CLS, CRT had
gathered many scholars and theorists under a common umbrella. However, CRT is a
less formally organized school of thought as compared to CLS. It is important
to first understand CLS as it was a foundation for CRT. CLS is a theory which
challenges and overturns the accepted norms and standards in a legal theory and
practice. CLS movement arose out of the “anti-establishment ethic and
specifically targeted the manner in which law replicated and contributed to
established social patterns” (Pavlich 117). The central focus of this approach
is to understand the relationship between a legal doctrine and legal education
and how the resulting practices work together (Pavlich). Critical legal studies
are important as they discuss several themes such as ‘law’ and ‘society’ by
examining these concepts in a socio-political process which generate several
forms of law. Therefore, Critical Legal Studies attempts to develop a radical
alternative that explores and debates the role of law through, social, economic
and political relations which will benefit society as a whole (Pavlich). This
theory was aligned with ‘civil rights struggles and political events which
sought to address class, race, and gender inequalities and which also brought
about feminist jurisprudence and critical race theory in a legal context. The
theory claims that logic and structure attributed to the law which was the
foundation for Critical Race Theory. However, CRT studies racism and how it
persists despite its nearly universal condemnation by state policy and by
society. It also rejects the conventional liberal position that views racism as
a historical idea which only poorly-educated or troubled individuals could be
racists. In addition, critical race theorists take the position that racism is
ordinary and normal in our contemporary society as it is integrated into many
social and institutional practices. CRT is a theoretical and interpretive mode
that examines the appearance of race and racism though dominant cultural modes
of expression (Purdue Owl). This theory attempts to understand the relationship
between racial inequalities and how this is maintained in society. Critical
Race Theory contains four major themes, the first being racism, which regards
racism as being deeply entrenched in our social order (Purdue Owl). Critical
Race Theorists emphasize that ‘racism does not necessarily operate in crude or
explicit forms – however, it operates in more of a sociopolitical context where
it becomes enshrined in society’ (Academia) The second aspect of CRT is
discusses white supremacy and the role of its power in society. Thus, white
supremacy has reinforced many racial subordinations which have maintained an
overall sense of white privilege today. This is a central idea to CRT which
‘opposes racial inequality'(Academia). However, white supremacy is usually
referred as a “political, economic, and cultural system in which whites
overwhelmingly control power and material resources, conscious and unconscious
ideas of white superiority and entitlement”( Ansley 592) is then created in
society. CRT also places importance on individuals of colour and their insights
into the operation of racisms and their understanding of racial minorities. An
individual’s accounts may vary from various forms of story-telling or counter-narrative
etc. (academia). By using story- telling, this could provide a powerful
understanding and allow one to understand the injustices that racial minority
groups have experienced. Therefore, ‘story-telling has the potential to act as
a persuasive and potentially transformative tool to challenge liberal racist
ideology (Rollock). In addition, there have been times when greater race
equality operates in the interests of white people, and this notion is further
explained by ‘interest convergence’ which has helped to further understand CRT
(Purdue Owl). Additionally, CRT is concerned with the structures and the
relations that maintain racial inequality. The notion of ‘Intersectionality’,
as advanced by Kimberle Crenshaw, believes that by adopting an intersectional
framework, it helps the various differences between racial groups that will
then take into account the various historical and socio-political contexts they
have endured. (Crenshaw). Therefore, Critical Race Theory emphasizes a need to
develop a ‘sophisticated historical analyses of law which would then render
ecliptic the long-standing role in racisms’ (Pavlich). This theory claims to
offer reconstructions and the prospect of a different society without racial or
other forms of oppression (Pavlich).

             CRT developed into
its current form during the mid-1970’s with scholars like Derrick Bell and
other law professor and activists who became disillusioned with the results of
the civil rights movement. Derrick Bell, an African-American professor of law, at
Harvard Law School and Alan Freeman laid the foundation what would be called,
Critical Race Theory. Derrick Bell, a legal scholar, believed that racisms in
the United States was persistent and sought to expose it though books, articles
(NY Times). He ultimately transformed our understanding of the relationship
between race, racism and official power. Bell, contributed to a ground-breaking
analysis of conflict of interest in regard to civil rights litigations and the
role of the white elite and their self-interest. Bell questioned “the basic
assumptions of the law’s treatment in regards to people of colour, he also
asked questions about the role of law in the construction and maintenance of
social domination and subordination (Critical Race Theory). He developed and
taught a legal doctrine from a race-conscious viewpoint. Bell’s core beliefs
included ‘the interest convergence dilemma’ which is the idea that whites would
not support efforts to improve the position of blacks unless it was in their
interest (Critical Race Theory) In addition, Bell brought the notion of
colour-blindness in regard to the law. 

However, in Canada, cultural and
political identities in regard to social class and racisms are comparatively
different to the United States. Canada’s official policies of bilingualism,
multiculturalism, employment equality and the Charter of Rights and Freedoms
are regarded as a nation’s commitment to social justice and inclusions.
However, this is not fully the case as Canada has ongoing issues with regards
to Aboriginal people. Therefore, Critical Race Theory is especially important
regarding our Canadian racial problems and issues. Racisms is abundant for
Aboriginal people who are incarnated more than any other ethnic group.
Therefore, by examining Critical Race Theory, it can help develop one’s
awareness of the injustices that aboriginal people are facing.

 

Analysis

In Canada, we must acknowledge that many of our regulations
marginalize Aboriginal people and other racial minorities. Aboriginal people
are still unofficially facing cultural oppression, social inequality and
racisms etc. Canada passed in September 1996, Bill C-41 which amended the
Criminal Code seeking to clarify sentencing principles. However, section 718.2
(e) instructed judges to use incarceration only as a last resort when
appropriate. It also indicated that Aboriginal offenders must be given special
consideration. However, it did not provide specific conditions or parameters
for its use but left it to the judge’s discretion (Parliament of Canada). Some
clarification was provided by the Supreme Court of Canada in its decision of
R.v. Gladue. The Court clarified that the application of section 718.2 (e)
highlighted its role in alleviating Aboriginal overrepresentation in prisons
(Parliament of Canada). Essentially both section 718.2 (e) and in the case of
Glaude, the Supreme Court sought to address Aboriginal overrepresentation in
the criminal justice system via their sentencing reforms. Nevertheless,
demographic projections suggest that the disproportionate rates of
incarceration of Aboriginal people will continue to rise (Government of
Canada). Even though, this issue has been brought forth in a number occasions
by the Canadian Bar Association, the overrepresentation of Aboriginal people is
still an ongoing issue. Additionally, “only 2 percent of the population in
Canada were of Aboriginal descent, but they comprised of 10 per cent of those
in federal penitentiary” (Elliott). In addition, Aboriginal people are often
sentenced to longer prisons terms and spend more time in maximum security and
are less likely to be granted parole. As well, if an Aboriginal person is
convicted, he or she is 2.5 times more likely than non-aboriginal people to be
sentenced to some form of incarceration (Tefft). In addition, Aboriginal
offenders face being incarcerated for less serious offences. Furthermore,
Aboriginals also experiences a hard times being granted bail and experience
high levels of reincarceration by courts across Canada. In 1991, the Royal
Commission on Aboriginal Peoples (RCAP) noted that while Canada held a
reputation of being fair, however the realities for Aboriginal people were
starkly different (RCAP). In order to understand the issues that Aboriginal
people face, one must recognize the history of colonialism, and the systemic
oppression they face. Therefore, it is important to examine the scope and the
impact of the legal provisions in regard to sentencing and the circumstances
relating to Aboriginals.     

    There
are several explanations as to why the incarceration rate among Aboriginal
people is higher compared to other racial groups. There are three main reasons
that contribute to the increase of incarceration which includes cultural,
structural and historical factors that Aboriginal people have faced since the
beginning of colonization and experience them today (RCAP). The cultural aspect
focuses on the conflict between Aboriginal and non-Aboriginal cultures which
argues that discriminatory practices are embedded within the legal system which
results in the over-incarceration rate (RCAP). Canadian law, also conflicts
with Aboriginal traditions as Canadian law places the onus on the individual.
The Aboriginal’s concepts of justice often involve the community.
Therefore, the concept of justice involves more than just rules and regulations
especially in regard to Aboriginal people who are faced with systemic
discrimination and racism. Furthermore, Aboriginal justice bases it laws on a
restorative system which would not only benefit the accused but the community
as a whole. The historically enduring of Aboriginal cultures and practices and
the denial of equal treatment are in turn based on colonial attitudes. Therefore,
these attitudes and views have manifested themselves within Canadian society
including in our jurisprudence. Additionally, the criminal justice system is a
postcolonial institution in which it functions the interests of the dominant
groups by maintaining inequalities (Rudin).

It
is important to examine the application of CRT as a framework for understanding
how race and racisms are embedded in the fabric of Canada’s legal system. In
addition, it is important to note that everyday racisms define race and how
personal institutional teachings impact our legal context especially regarding
the application of section 718.2 (e) in its dealings with Aboriginal offenders
within Court of Appeal cases (Parliament of Canada). CRT believes that a core
belief of racism is not limited to only one individual act of discrimination,
but rather a historical, systemic and ideological manifestation of power which
has served and maintained to protect white privilege (Critical Race Theory).
Therefore, by eliminating all forms of discrimination, this could bring about a
fairer treatment both within the legal system and in society as a whole. One
must raise the issue of systemic racisms found in section 718.2 (e). All
members of society are supposed to be treated the same under the law and any
differential treatment would result in discrimination (Government of Canada).
Therefore, with the use of section 718.2 correctly, it could contribute to a
lowering of Aboriginal incarceration rates (Government of Canada). Section 718.2
(e) has not been applied to satisfy its intended original purpose. However, the
original intent of this section was to bring about more information about the
offender’s background to the forefront and to discuss his or her crimes.
Nevertheless, it has had an effect on many judges’ decision making. In
some cases, judges have required more specific information regarding an
offender’s connection to his or her roots. In addition, Aboriginal’s must
therefore provides clear statements on how colonialism may have been linked to
the individual and how this may have negatively affected them. Thus, Aboriginal
people who hope to employ this section for their defense must show a clear
connection to residential schools, intergenerational trauma or other
consequences that, due to colonialism have had a direct negative influence
(Government of Canada). There is no doubt that Aboriginal over-representation
is one of the most documented trends in the Canadian criminal system which has
contributed to systemic discrimination and racisms today. The reason the number
of Aboriginals incarcerated continues to increase is due in part of judges not
discussing the root cause of the problem as to why the individual committed the
crime. As such, Aboriginal criminality and their over-representation in prisons
must be looked at in more detail as these are components of much larger
social issues that have caused these individuals to commit crimes. The issues
that need to be addressed include social issues which may occur from
problematic social, economic and political dimensions from an Aboriginal’s
life. It is imperative, to crucial focus on these issues in order to help
Aboriginal communities throughout Canada.

     One must look to CRT which has indicated that a lack of
a personal narrative or discussions of racial inequality could be a
cause for the current state of disproportionate jail sentences experienced by
Aboriginal people (Litowitz). In traditional Aboriginal decision-making, the
goal of a collective consensus is to achieve healing through healing rituals
and sharing circles. Therefore, what needs more exploration and consideration in judicial decision-making are the Aboriginal’s individual subjective
experiences regarding race and
discrimination. By considering the historical effects of colonization and the
treatment by the governing system, it
would in turn help the Aboriginal community and its interactions with Canadian society. As well this could
alleviate colour-blindness and create a greater justice system (Crenshaw).
Therefore, the issue seems to be that the
current punitive legal system in Canada as well as the other issue result in the lack of knowledge by the
judiciary of how to best apply the Aboriginal
restorative justice system. In addition, simply enacting laws
without providing proper knowledge and training for the individuals who hold
the power to make changes in the legal system, such as judges, that impose
sentences on Aboriginal offenders, has been ineffective. Critical Race Theory addresses
not only the incompatible nature of the current criminal justice system regarding
Aboriginal people but it also sheds light on how to better approach legal
issues. CRT must be given a greater emphasis in law when acting as an enabler to expose racial
discrimination and legal claims of neutrality, colorblindness and meritocracy
(Crenshaw). In addition, CRT seeks to establish a greater recognition of racism
and discrimination as interwoven within the fabric of society and in turn the
legal system. Understanding these theories could help us make better laws and
reduce discrimination against Aboriginal people. By building on CRT through an
interdisciplinary approach, it would eliminate racial oppression. The legal
system must challenge a historicism and hegemonic power in favour of historical
and contextual analyses of law and legal process. Additionally, judges have
attempted to include more background information in the appeal of an offender.
However, CRT states that storytelling and personal narratives would work better
to disassemble perceptions of the norms held by unknowledgeable judges
(Crenshaw). This would then give the accused a voice to express himself or
herself by sharing own stories and views. In turn, this would bring about a more
accurate account of an individual’s circumstances and would thus improve the
judge’s ability to handle each case on an individual basis. Therefore, in order
to reduce racisms, one must look beyond the legal system in order to reduce the
levels of incarceration. Furthermore, by reducing criminogenic factors within a
community, it could help Aboriginal groups who have been severely disadvantaged
throughout their lives. In turn, it would help the justice system to be more
effective when handling serious cases. This could also reduce the number of
cases that commonly overwhelm courts throughout Canada. If significant changes
are created this could resolve Aboriginal over-representation in Canada. In
order for Canada to achieve this, there needs to be an emphasis on a more
multi-faceted approach to criminal behaviour which would consider various aspects
of discrimination inflicted on the Aboriginal population. Thus, by studying
Critical Race Theory one can better understand the many issues concerning
Aboriginal people especially as it relates to in section 718.2 (e) which states
that the judicial system should consider all possible solutions in order to invoke
real restorative justice and rehabilitation. Policies, must be implemented to
target the various and numerous factors of disadvantage in order to achieve an effective
and fair approach for Aboriginals.           

Conclusion

     In
conclusion, Critical Race Theory challenges the validity of such concepts as
rationality, objective truth and judicial neutrality. CRT is an American theory
based on sociopolitical history in the United States and was created in response
to the growing body of literature on Critical Legal Studies and its idealism. CRT
is mainly applied to expose the controversies held by hegemonic power and the myth
of meritocracy by studying and changing policies that affect unequal treatment
based on race. In addition, it also believes that everyday racism defines race
and how people as well as institutional teachings impact behaviour and
outcomes, especially within the legal context. Critical Race Theory believes
that so long as a group of people have the power to exert control over the
legal, political, social and economic aspects of a society, individuals who
fall outside of the dominant group are not safe from oppression. Thus, in order
to change our view of racism in society that is prevalent, one must change our
legal context. This can be seen in Canada with the overrepresentation of
Aboriginals incarcerated. Although, there has been legislation which has brought
about new sentencing procedures, however, it has not alleviated the problem as
it has been left to the judge’s discretion. Concerns have been raised as judges
may give a harsh sentence for an individual’s crimes instead of listing to the individual’s
story and keeping in mind the effects of colonization, discrimination and
racism which the individual faced and faces on a daily basis. Some scholars
criticize CRT as they favour a more aggressive approach to social issues and
believe that racism affects the notion of a society. In addition, CRT brings
about a danger of narcissism and how ethnic groups claim superiority or special
status and thus ignore the collective voice. The most important criticism of
CRT is that it provides one with many critiques in regard to the legal system. However,
there is a lack of solutions in order to limit racisms in society and
effectively eliminate it all together. By studying CRT, it brings forth a
discussion about racisms and discrimination which isn’t usually at the
forefront in Canada.