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Systemic discrimination in the criminal justice system: OHRC letter to Attorney General Naqvi

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April 19, 2017

Hon. Yasir Naqvi
Attorney General
McMurtry-Scott Building, 11th Floor
720 Bay St
Toronto, ON M7A 2S9

Dear Minister Naqvi:

I hope this finds you well. In our strategic plan, the Ontario Human Rights Commission (OHRC) committed to using our mandate and powers to address systemic discrimination in the criminal justice system.  That’s why we welcome your Government’s commitment to reconciliation with Indigenous peoples, combatting racism, and reforming policing, police oversight, bail, and corrections.

Indeed, we believe that the current backlog of cases in criminal justice system coupled with the Supreme Court of Canada’s decision in R. v. Jordan offers a unique opportunity to create a more sustainable criminal justice system in Ontario.

Therefore, we are writing today to ask you to work with your federal-provincial-territorial (FPT) counterparts to develop a national, whole-of-government action plan to address the systemic issues that have led to the over-representation of Black and First Nations, Métis, and Inuit (Indigenous) people, and those with mental health and developmental disabilities in the criminal justice system (national action plan). A concrete first step would be to ask the federal Minister of Justice to put discussion of a national action plan on the agenda for the upcoming emergency meeting of FPT justice ministers to be held in Ottawa at the end of the month.

The disproportionate impact of the criminal justice system

The OHRC is focused on criminal justice reform because groups protected under Ontario’s Human Rights Code bear the brunt of the system’s negative consequences. The prison population provides a snapshot: Indigenous and Black people are grossly over-represented, and the prevalence of addictions and mental health and intellectual disabilities amongst the prison population has grown dramatically. Moreover, the impact of the criminal justice system is felt at an individual, family and community level and can have inter-generational impacts on well-being.

The disparate negative impact of criminalization on certain groups persists despite repeated urgent appeals by the United Nations, federal Correctional Investigator, and the Truth and Reconciliation Commission and is a reality I have witnessed first-hand in my role as Chief Commissioner of the OHRC.

The current crisis presents an opportunity for reform

The decision in R. v. Jordan offers the opportunity to usher in a new era of faster and fairer justice. To that end, we know that Ontario has committed to appointing and hiring more provincial court judges and Crown prosecutors, and working with its FPT counterparts to consider other “structural changes” to clear the backlog of cases and make criminal prosecutions more efficient going forward.

However, since the release of R. v. Jordan, commentators have rightly questioned the long-term sustainability of Canada’s criminal justice system. Despite steadily decreasing crime rates, the criminal justice system has continued to grow in size and complexity. In 2011-2012, the Parliamentary Budget Officer found that Canadians spent $20.3 billion dollars on criminal justice. This amount does not even capture the cost to society of lost productivity, the personal cost of prolonged pre-trial detention and isolation from community and family supports, or the inter-generational impact of high rates of criminalization on communities.

R. v. Jordan should spark a re-examination of the appropriate role of the criminal justice system in the pursuit of our broader social priorities. The failure to effectively implement rights guaranteed in the International Covenant on Economic, Social and Cultural Rights, Convention on the Rights of Persons with Disabilities, and the UN Declaration on the Rights of Indigenous Peoples has resulted in up-stream issues that contribute to a bloated criminal justice system. These systemic issues include persistent poverty and homelessness, inter-generational trauma within Indigenous communities, inadequate community treatment and support for people with mental health and developmental disabilities and addictions, and continued systemic discrimination in child welfare, education, and employment.

The Ontario Government’s commitment to criminal justice reform

We know that you share the OHRC’s concerns about the chronic over-representation of marginalized and vulnerable people in all aspects of the criminal justice system: from first contact with law enforcement to charging to pre-trial custody to sentencing and to incarceration.

That is why we welcome your Government’s commitment to reconciliation with Indigenous peoples, combatting racism, and reforming policing, police oversight, bail, and corrections. We encourage your Government to move quickly and decisively on these commitments by effectively implementing all the recommendations contained in the following:

  • OHRC Submission to the Ministry of Community Safety and Correctional Services (MCSCS) on its “Strategy for a Safer Ontario”;
  • OHRC Submissions to MCSCS on its review of segregation; and
  • Report of the Independent Police Oversight Review conducted by the Honourable Michael H. Tulloch.

These recommendations were arrived at after extensive consultation with communities most affected by criminalization. 

Beyond these recommendations, we believe the Ministry of the Attorney General (MAG) can and should do more. The decision in R. v. Jordan should mean immediately:

  • directing police and Crown Attorneys to take all steps necessary to ensure that people are not criminalized because of an addiction, disability, or because of racial profiling;
  • creating and funding restorative justice models in partnership with Indigenous communities that reflect and address the legacy and impacts of colonialism and divert people out of the criminal justice system;
  • making sure that all people who do not pose a risk to society, regardless of their geographic location or socio-economic status, are able to obtain bail;
  • effectively implementing the sentencing principles set out in R. v. Gladue;
  • making sure that incarceration is seen as a last resort, especially for vulnerable people and those who are over-represented in custody; and
  • working with MCSCS to make sure that they deliver intensive and culturally-appropriate programming, treatment, and community-based support to equip prisoners and parolees to break the cycle of criminality and successfully reintegrate back into the community.

These actions do not require legislative reform but rather a firm commitment on the part of Government to take all steps necessary to address systemic discrimination in the criminal justice system.

National, whole-of-government action plan to address criminalization

While MAG must play a leading role in responding to R. v. Jordan and reforming the criminal justice system in Ontario, the OHRC believes that a long-term response to this crisis must address the underlying factors that lead to criminalization in the first place. Developing and implementing sustainable solutions requires coordinated action amongst all levels of government, multiple ministries and departments, as well as non-governmental actors and affected-communities.

That is why we are asking you to work with FPT justice ministers to make a strong and clear commitment to developing a national action plan to address the systemic issues that result in the over-criminalization of vulnerable and marginalized people and which underlie the current crisis. These systemic issues include poverty and homelessness, the inter-generational impacts of trauma and colonialism, inadequate community treatment and support for people with mental health and developmental disabilities, and systemic discrimination in employment, education, child welfare and policing.

Coordinated action to address the root causes of criminalization, including clear timelines, benchmarks and deliverables, would reduce the burden on the criminal justice system, promote and improve public safety, and decrease the over-representation of certain groups in our prisons and jails. Moreover, addressing these issues is consistent with Canada’s and Ontario’s obligations under international human rights law, the Charter of Rights and Freedoms, and provincial and federal human rights legislation.

Your leadership is needed to facilitate this urgent conversation and commitment. We understand that the federal Minister of Justice is planning an emergency FPT meeting to address the current backlog of criminal cases in light of the strict time limits imposed in R. v. Jordan. From our perspective, the upcoming FPT meeting offers a critical opportunity to begin a broader discussion about refocusing the criminal justice system in light of the kinds of social problems we can realistically expect it to solve.

For over a decade, the OHRC has documented and called for an end to systemic discrimination in the criminal justice system. Respecting the full range of internationally-protected human rights means proactively addressing long-standing and entrenched discrimination at its source, and searching for sustainable solutions that respect the dignity of all Canadians and allow them to meaningfully contribute to society. Relying on the criminal justice system should be the last resort to address social issues, not the default. This could and should be the enduring legacy of R. v. Jordan.


Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner
Ontario Human Rights Commission

cc. Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada

Hon. Marie France-Lalonde, Minister of Community Safety and Correctional Services (Ontario)

Hon. Michael Coteau, Minister Responsible for Anti-Racism (Ontario)

Hon. Dr. Eric Hoskins, Minister of Health (Ontario)

Howard Sapers, Independent Review of Ontario Corrections

Marie Claude-Landry, Chief Commissioner, Canadian Human Rights Commission

OHRC Commissioners