Free Course! Confronting Racism in the Criminal Justice System

Practice Point

25
Mar
Racism_Criminal_Justice_System

Confronting Racism in the Criminal Justice System

Identifying racism at every stage of the process

June 2, 2021 (9:00 am – 5:00 pm) – Register Now (Free!)

July 20, 2021 (Rebroadcast) – Register Now (Free!)
July 27, 2021 (Rebroadcast) – Register Now (Free!)

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Who should attend: Everyone interested in improving the criminal justice system; criminal law practitioners, judges, Crown and defence lawyers at all levels of experience; all lawyers and others interested in addressing systemic racism in law enforcement and the BC criminal justice system.

Learning Level: all

Systemic racism is deeply embedded in civil society and in our governing structures. It affects every stage of the criminal justice system and contributes to the persistent over-representation of racially diverse communities from initial contact on through court processes and decisions. Beyond systemic issues, unconscious bias and micro-aggressions also influence outcomes and impact the experience of members of the BIPOC community as they interact with the criminal justice system.

At this course we will walk through where, when and how systemic racism, unconscious and conscious bias, micro-aggressions and white privilege exist at each stage of the criminal justice system – from policing to charge assessment, in the bail process, in trials and at sentencing. We will explore how this impacts decisions and proceedings and the ways we can interrupt negative outcomes.

This course is being offered at no cost to welcome both the legal, judicial and the wider community to participate. Join us to gain a better understanding of the issues and challenges surrounding racism and criminal law, and to learn how you can do your part to improve the criminal justice system in BC.

This course will include a minimum of 6.5 hours of professional responsibility and ethics, client care and relations, and/or practice management.

Course Chairs
Halie Kwanxwa’loga Bruce – Cedar and Sage LLP, Cultus Lake
Nadia K. FarinelliCrown Counsel, Ministry of the Attorney General, Vancouver

Planning Committee:
Leah B. M. FontaineCrown Counsel, Ministry of the Attorney General, Duncan
Jamala C. MacRaeCrown Counsel, Ministry of the Attorney General, Port Coquitlam
Gloria M. NgGloria Ng Law, Vancouver
Kevin B. WestellPender Litigation, Vancouver

Welcome and Land Acknowledgement
Chief Leah Sisi-ya-ama George-WilsonTsleil-Waututh First Nation

Keynote Speaker
Marion R. BullerChief Commissioner, Missing and Murdered Indigenous Women and Girls Inquiry, Vancouver

Faculty
The Honourable Mr. Justice Leonard S. Marchand – Court of Appeal for British Columbia, Kamloops
The Honourable Mr. Justice Michael H. Tulloch – Court of Appeal for Ontario, Toronto
The Honourable Judge David St. Pierre – Provincial Court of BC, Vancouver
The Honourable Judge Linda D. Thomas – Provincial Court of BC, Fort St. John
The Honourable Madam Justice Lori Anne Thomas – Ontario Court of Justice, Toronto
Susan EngDirector, Chinese Canadian National Council for Social Justice, Toronto
Kasari Govender Human Rights Commissioner, BC’s Office of the Human Rights Commissioner, Vancouver
Meenakshi MannoeCriminalization & Policing Campaigner, Pivot Legal Society, Vancouver
Professor Kent Roach – University of Toronto Faculty of Law, Toronto
Daniel SongPringle Chivers Sparks Teskey, Vancouver
Dr. Mary Ellen Turpel-Lafond/AkikweSenior Associate Counsel, Woodward & Company Lawyers LLP, Victoria
Douglas S. White, QC KwulasultunChair, BC First Nations Justice Council; Nanaimo
Nana Yanful – Legal Director, Black Legal Action Centre, Toronto

CLEBC Program Lawyer*
Teresa Sheward
tsheward@cle.bc.ca
*non-practising

Course Chairs
Halie Kwanxwa’loga BruceCedar and Sage LLP, Cultus Lake
Nadia K. Farinelli – Crown Counsel, Ministry of the Attorney General, Vancouver

About the Course Chairs

Halie Kwanxwa’logwa Bruce is a member of the Namgis/Kwa’kwa’kawakw Nation. Halie has over 30 years of experience working with Indigenous communities.  Before receiving her Juris Doctorate from UBC, Halie was the Administrator and Policy Coordinator for the Union of B.C Indian Chiefs where she worked with Indigenous communities and governments from across B.C., Canada and internationally, with respect to Aboriginal Title & Rights, Self-determination, land, resource, and social policy. She is a past member of the BC First Nations Justice Council and is a current Board member of the Sixties Scoop Healing Foundation.

Halie’s legal practice has included Indigenous family law, Indigenous laws and governance, fisheries, Aboriginal business and Indigenous dispute resolution, laws and peacemaking protocols.  Halie has acted as Counsel for parents and grandparents in child protection matters and assisted with research and editing of both editions of the “Wrapping Our Ways Around Them:  Aboriginal Communities and the CFCSA Guidebook” (2015 & 2021).  She has devoted part of her practice to Indigenous restorative justice initiatives, including writing Gladue Reports for bail, sentencing and appeal courts in BC.

Halie has participated as a speaker, panelist and presenter at various CLE BC conferences, and Co-chaired CLE sessions focusing on Access to Justice for children, Gladue Submissions, and Indigenous Laws. She has presented at a number of gatherings on Indigenous topics as diverse as Aboriginal Title & Rights, Indigenous child welfare, housing, matrimonial property, poverty, cultural competency, trauma-informed decision making, and Indigenous conflict resolution.

Nadia Farinelli is Administrative Crown Counsel with the Commercial, Police and Regulatory Prosecutions Section of the BC Prosecution Service. She holds a JD from the University of Victoria and two LLMs from New York University and the National University of Singapore. Prior to being called to the bar in 2008, she clerked for the BC Supreme Court and worked as an intern in Nairobi, Kenya for the Canadian Bar Association and Canadian International Development Agency. Prior to joining the Provincial Crown, she worked for a large national law firm in its labour, employment and civil litigation group, as a Fellow for the International Centre for Transitional Justice in New York, as a Federal agent prosecutor and as in-house litigation counsel for the Greater Vancouver Regional District. In her current role, she conducts prosecutions in the areas of environmental and regulatory law, commercial crime and police prosecutions.

9:00 – 9:10 Welcome and Land Acknowledgement

Chief Leah Sisi-ya-ama George-WilsonTsleil-Waututh First Nation

9:10 – 9:25 Confronting Racism in the Criminal Justice System

The criminal justice system is a fundamental societal instrument but it is not immune to the problems endemic to our society – systemic racism foremost among them. This is in large part due to the fact that the individuals tasked with enforcing, prosecuting, defending and applying the law, are, and have been, predominantly white and male.

  • How do we disrupt systemic racism and white privilege in the criminal justice system?
  • By examining each stage of the criminal justice process, can we expose its weaknesses and highlight responsibility?
  • How has the law evolved and in what ways is it still deficient?
  • What perspectives are important for Crown/defence/the bench to know?
  • How are these issues raised in practice and what are the consequences of doing so?
  • What can we learn from other sectors that have undertaken initiatives aimed at eliminating systemic racism?
  • How do we move forward? How do we make decisions that seek to disrupt patterns of racism but also reflect the values of impartiality and fairness that the criminal justice system is meant to uphold? How can we work together?

Halie Kwanxwa’loga BruceCedar and Sage LLP, Cultus Lake
Nadia K. FarinelliCrown Counsel, Ministry of the Attorney General, Vancouver

9:25 – 10:15 Lessons from Human Rights

In the human rights context, there is a system that allows for addressing individual instances of racial discrimination. In the healthcare context, the review by Dr. Mary Ellen Turpel-Lafond engaged in an expansive investigation of systemic issues. What are some important lessons or findings from each of these contexts that may be considered in the criminal justice context?

  • What are the important elements of fact-finding in the individual context of racial discrimination? How important is it for those who have been victimized and those who have been accused, to have their voices heard?
  • The investigation into healthcare demonstrated the method of asking questions and proactively investigating racism in order to fully address it at a systemic level. To what extent is there a need for this kind of deeper dive in the criminal justice system?
  • What kinds of remedies are there for people experiencing incidents of racism that may or may not attain the status of a “hate crime”?
  • How do we define racial discrimination in the realm of human rights law?
  • How is that different from the way that we define and recognize racial discrimination in the realm of criminal law?
  • Are there aspects of the law of racial discrimination in the human rights realm that should be cross-applied to our criminal justice system?

Moderator: Kevin B. WestellPender Litigation, Vancouver
Susan EngDirector, Chinese Canadian National Council for Social Justice, Toronto
Kasari Govender Human Rights Commissioner, BC’s Office of the Human Rights Commissioner, Vancouver
Dr. Mary Ellen Turpel-Lafond/AkikweSenior Associate Counsel, Woodward & Company Lawyers LLP, Victoria

10:15 – 10:30 BREAK

10:30 – 11:20 Policing and Charge Assessment

In BC, the Crown is responsible for evaluating police conduct in the context of charge assessment. Systemic racism at this stage influences issues such as arbitrary detentions, police violence/use of force, investigative techniques, and witness and victim credibility. The presence of race as a factor is often between the lines.

  • How does systemic racism in policing influence the charge assessment process?
  • What questions should be asked? How do we read between the lines? What is the Crown’s role and responsibility at this stage?
  • How do we detect or prove racism in policing?
  • What laws or instruments exist in BC (or nationally) that address the issue of systemic racism in policing?
  • When should policing be characterized as racial profiling? Is it ever reasonable?

Moderator: Nadia K. FarinelliCrown Counsel, Ministry of the Attorney General, Vancouver
The Honourable Mr. Justice Michael H. TullochCourt of Appeal for Ontario, Toronto
Meenakshi MannoeCriminalization & Policing Campaigner, Pivot Legal Society, Vancouver

11:20 – 11:30 BREAK

11:30 – 12:40 Bail

  • How is the conditional release of suspects (for example through police undertakings or judicial release) impacted by systemic barriers?
  • What are some practical constraints in the bail process that may result in differential treatment of detained persons or persons seeking release?
  • How can race or cultural background influence a person’s access to bail
  • What do we know statistically about the pre-trial detention of BIPOC persons? How do we account for racial disparity and what to do about it?
  • How should the court balance the presumption of innocence against the need to assess the risk of re-offending?
  • In what contexts is it important to be mindful of language, racialized characteristics, stereotypes and bias?
  • How does unconscious bias impact risk-assessment?
  • What factors should influence the preparation of release conditions by police/Crown/the bench?
  • To what extent should Gladue form part of a bail analysis? Is Indigenous or cultural background relevant to the risk assessment?

Moderator: Leah B. M. FontaineCrown Counsel, Ministry of the Attorney General, Duncan
The Honourable Judge David St. PierreProvincial Court of BC, Vancouver
Daniel SongPringle Chivers Sparks Teskey, Vancouver

12:40 – 1:15 LUNCH BREAK

1:15 – 1:35 Keynote

“Confronting the Elephants in the Room:  Having the Difficult Conversations About Racism”
Chief Commissioner Marion R. BullerMurdered and Missing Indigenous Women and Girls Inquiry

1:35 – 3:00 Trial

Taking a deeper look at how racism impacts the conduct of trials, our speakers will explore some of the following questions:

  • What is Crown Counsel’s role and responsibility if racism is detected during early case preparation such as a pre-trial interview with the investigating officer?
  • As Defence Counsel, how do you go about trying to prove racism played a part in the police investigation? What are the mechanics of establishing or raising the issue of race at trial?
  • What role does access to justice play in an accused’s ability to prove systemic racism or racial profiling?
  • Have we seen any improvements in recognizing the role of systemic racism since the case of v. Le 2019 SCC 34?
  • View from the Bench: Have the principles set out in v. S. (R.D.) [1997] 3 SCR 484 been revived and what lessons might be (re)-learned from this case?

Moderator: Gloria M. NgGloria Ng Law, Vancouver
The Honourable Mr. Justice Leonard S. Marchand Court of Appeal for British Columbia, Kamloops
Jamala C. MacRaeCrown Counsel, Ministry of the Attorney General, Port Coquitlam
Professor Kent Roach – University of Toronto Faculty of Law, Toronto
Nana YanfulLegal Director, Black Legal Action Centre, Toronto

3:00 – 3:15 BREAK

3:15 – 4:25 Sentencing

How does racism play into the sentencing stage and what are the impacts of racism in the sentencing of racialized persons?

  • A comprehensive look at Gladue reports and the over-representation of Indigenous people in the criminal justice system
  • When you don’t have a formal Gladue report: how to use Gladue factors in sentencing Indigenous people; changing the conversation to one of resilience and strength; creativity in sentencing
  • How to raise the issue of a racialized background of a non-Indigenous person as a relevant factor for the court to assess when determining an appropriate sentence

Moderator: Jamala C. MacRaeCrown Counsel, Ministry of the Attorney General, Port Coquitlam
The Honourable Judge Linda D. Thomas – Provincial Court of BC, Fort St. John
The Honourable Justice Lori Anne Thomas – Ontario Court of Justice, Toronto
Douglas S. White, QC KwulasultunChair, BC First Nations Justice Council, Nanaimo

4:25 – 5:00 Moving Forward – Making Change

Halie Kwanxwa’loga BruceCedar and Sage LLP, Cultus Lake
Nadia K. FarinelliCrown Counsel, Ministry of the Attorney General, Vancouver
Leah B. M. FontaineCrown Counsel, Ministry of the Attorney General, Duncan
Jamala C. MacRaeCrown Counsel, Ministry of the Attorney General, Port Coquitlam
Gloria M. NgGloria Ng Law, Vancouver
Kevin B. WestellPender Litigation, Vancouver