Aboriginal Incarceration is Increasing, Despite Falling Crime Rates

Written on Behalf of Affleck & Barrison LLP

Despite only comprising 4.3 per cent of the Canadian population, Aboriginals make up over 25 per cent of federally sentenced inmates. The percentage of Aboriginal women in federal prison is even higher – 36 per cent of all female federal inmates are Aboriginal.

In recent years, much attention has been drawn to the of the over-incarceration of black men in the United States, where black men are six times more likely to be imprisoned than white men. But in Canada, Aboriginals are incarcerated at 10 times the rate of non-Aboriginals. The problem is greatest in the Prairies. In Saskatchewan, for example, Aboriginals are 33 times more likely to be incarcerated. This is particularly concerning in light of Canada’s steadily declining crime rate which recently hit a 45-year low.

Just last week, Raymonde Saint-Germain, Quebec’s ombudsperson, released a scathing report on the treatment of Inuit people in the Quebec justice system. Ms. Saint-Germain highlighted numerous concerns after witnessing serious violations of inmates’ rights in northern Quebec. Ms. Saint-Germain also noted a dramatic increase in the number of Inuit in provincial jails over the past six years.

The reasons for the disparity are complex. Howard Sapers, Correctional Investigator of Canada, points to poverty, the history of colonialism and the lasting effects of the residential school system as some of the reasons why so many Aboriginal people suffer from problems that land them in the justice system. Cuts to social services, health care and education have also served to multiply the problems faced by Aboriginals in Canada. Another reason for the spike in Aboriginal incarceration is the harsh mandatory-minimum sentencing laws passed by Stephen Harper’s conservative government over the past decade which increased sentences for a wide variety of crimes while limiting parole opportunities. Finally, Aboriginal people are further disadvantaged by discriminatory practices and a biased justice system.

To speak with an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

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Differences between the Canadian and American Legal Systems, Part 2

Written on Behalf of Affleck & Barrison LLP

As criminal lawyers, our clients often have an understanding of the law that is based on watching American television shows and movies. A few weeks ago, we wrote a blog post about how the Canadian legal system differs from the American legal system, despite the fact that both legal systems are based on British common law. This post is a continuation of that list.

Here are some more things you may not have known about the Canadian legal system, as it relates to criminal law:

  • Robes – In most Canadian courts, lawyers, judges and some court personnel wear long formal black robes with white collars. However, unlike in the United Kingdom, lawyers in Canada do not wear wigs.
  • Court formality – Conduct in the courtroom is generally more formal in Canada than in the U.S. Lawyers refer to opposing counsel as ‘my friend’. In Ontario, judges are called “Your Honour,” but in some other provinces, such as Manitoba and Saskatchewan, judges in the Court of Queen’s Bench are referred to as “My Lord” or “My Lady” or alternatively, “Madam Justice” or “Mr Justice”.
  • Bowing to the court – It is common practice for lawyers to bow to the court when entering or leaving the court, and when the judge enters or exits the courtroom.
  • Standing to address the court – When the judge is speaking to you, or you are speaking to the judge, you must stand. You must also stand when the judge is entering or leaving the room.
  • There is no gavel on the judge’s bench – Because Canadian courts are more formal than American ones, we consider gavels to be unnecessary. If the situation inside the courtroom does get out of hand, a judge will usually cast a disapproving look and only rarely raise his or her voice.
  • There are no motions to “strike from the record” – In Canadian courts, if something happens in the courtroom it is on the record no matter what.

This list is far from complete. There exist many superficial and deeply ingrained historical differences that are unique to each of our countries, and make our legal systems quite different than most people would imagine.

If you have questions about a criminal defence matter, please contact the lawyers at Affleck & Barrison online or at 905-404-1947.








Differences between the Canadian and American Legal Systems

Written on Behalf of Affleck & Barrison LLP

Despite Canada’s physical and cultural proximity to the United States, Canadians are quick to point out the larger cultural differences such as free health care in Canada, our penchant for politeness and our rainbow-hued currency. But many Canadians, raised on a diet of American movies and television, are unaware that our legal systems are quite different. Although the American and Canadian legal systems are both based on British common law, in practice there are significant distinctions.

The following is a list of a few things you may not know about the legal system in Canada, as it relates to criminal law:

1. Criminal law is under federal jurisdiction

In the U.S., criminal law varies from state to state. But in Canada, there is only one federal criminal law and Criminal Code across the country.

2. No death penalty

  • In the United States, 31 states still have the death penalty. The last execution in Canada was performed on December 11, 1962 at the Don Jail in Toronto, but the death penalty for murder wasn’t officially abolished in Canada until 1976.

3. Judges are appointed by the government, not elected

  • Our judiciary in Canada is independent, but judges in provincial courts are appointed and paid for by the provincial governments. Other judges, the Supreme Court of Canada and in superior and federal courts, are appointed by the federal government and paid for by the provincial governments.

4. Canadian courts are bilingual

  • Canada has two official languages – English and French. Language rights are protected in our Charter of Rights and Freedoms. Everyone is entitled to a trial in either English or French.

5. You cannot “Plead the Fifth”

  • In the United States, the Fifth Amendment to the Constitution is part of the Bill of Rights. This amendment protects a person from being compelled to be a witness against him or herself in a criminal case. “Pleading the Fifth” allows a witness to decline to answer questions where the answers might incriminate him or her. Canadians have a similar protection against self-incrimination under section 13 of the Charter of Rights and Freedoms, but witnesses are not able to excuse themselves from testifying.

There are of course many more differences between the Canadian and American legal systems, some of which will be addressed in later blog posts.

If you have any questions about the differences between criminal law in Canada and the United States, please contact Affleck & Barrison online or at 905-404-1947.



On the Brink of Marijuana Legalization

Written on Behalf of Affleck & Barrison LLP

With the election of the Liberal government led by Justin Trudeau just a few short weeks ago, Canada is now on the brink of legalizing marijuana. After decades of prohibition, Canadians are finally discussing the implementation of a national, regulated system for the sale of marijuana. The question of how to implement the legalization of marijuana is a big one, with many considerations. According to the Liberal party platform, one of the first steps on the path to legalization will be to establish a provincial, territorial and federal task force to hear from experts in the public health, substance abuse and law enforcement fields. Trudeau has not yet revealed how he plans to fulfill his election promise.

At present, the use of medical marijuana is already permitted by law. Last June the Supreme Court of Canada unanimously held that patients who qualify for medical marijuana have the right to obtain not just dried buds but any form of cannabis they find useful. Today, federally licenced producers produce and sell medical cannabis under rigorous safety and quality standards. The Liberals now intend to create a licenced and regulated marijuana system serving the recreational market, eliminating penalties for the possession of marijuana.

The Liberal party election platform also promised to create “new, stronger laws, to punish more severely” people who sell cannabis to minors, or to people operating outside of their as yet undefined new system. Given that outgoing Prime Minister Stephen Harper’s government was already responsible for introducing mandatory minimum sentences for cannabis offences, it is unclear just what kinds of “more severe” punishments the Liberals have in mind.

Legalization of cannabis should also include an amnesty for past cannabis convictions, so that those criminal records are erased from the system. The prohibition against marijuana has caused untold harm to the lives of many Canadians. Erasing all possession convictions and granting immediate pardons would be a step in the right direction. For trafficking or cultivation charges, there should be a process in place to allow people to have those criminal records erased, provide no violent or other significant crimes were also committed.

If you have any questions about marijuana charges or any other criminal defence matter, please contact Affleck & Barrison online or at 905-404-1947.