(CRM1a) Canadian Contributions to Criminology I

Criminology is a multi-faceted field that uses 'crime' as its subject matter but has no single methodological commitment or paradigmatic theoretical framework. Many areas and conversations in criminology, however, are often dominated by work from the US, Britain, and the Scandinavian countries that differ from the Canadian context in significant socio-political respects. The main objective of this session is to connect researchers and discuss work that advances our understanding of crime and criminal behaviour in Canada as well as criminological knowledge more broadly. Tags: Criminologie, Droit, Société Canadienne

Organizers: Timothy Kang, University of Saskatchewan, Daniel Kudla, Memorial University; Chair: Daniel Kudla, Memorial University

Presentations

Vanessa Rhodes, University of Guelph

"Within the Limits of the Law": Examining Anti-Black Racism and Judicial Sentencing Discretion in Canada between 1990-2022

Anti-Black racism is often discussed within the American context; however, Canada also has deep-rooted racial tensions that present in the over-representation of Black and Indigenous peoples in the Canadian criminal legal system. Canadian courts have recently held that sentencing judges must consider systemic racism when issuing a sentence, while simultaneously citing the role of a sentencing judge is not to remedy systemic failures. Framed within Critical Race Theory, this study draws on Canadian court decisions over a 32-year period (1990-2022) to examine whether and how the judiciary considers anti-Black racism in sentencing decisions. Preliminary findings suggest that sentencing judges are reluctant to use judicial discretion and existing tools in the Criminal Code of Canada to address systemic discrimination in sentencing. The Canadian government expanded sentencing legislation in 1996 to reduce Indigenous incarceration, however it has not ameliorated the incarceration rates of Indigenous peoples. Therefore, findings demonstrate that legislation alone cannot remedy systemic racism in the Canadian criminal legal system.

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Non-presenting author: Kanika Samuels-Wortley, Ontario Tech University

Katharine Dunbar Winsor, Mount Allison University

Dance as revolution: Exploring prisoner agency through arts-based methods

Carceral spaces such as prisons are designed to restrict freedoms and keep inhabitants confined and under surveillance through various mechanisms. As a result, prisons are spaces where movement is restricted through confinement, while prisoners’ ability to move is conflated with freedom. We aim to move beyond this dichotomy and consider a complex rethinking of the body in criminological theory and practice through dance in carceral space. In doing so, we explore under what conditions movement represents agentic practices. Understanding these nuances requires an interrogation of prisoner agency, including prisoners’ subtle maneuverability of power dynamics within the prison. We explore these dynamics using feminist and arts-based methods, specifically dance workshops delivered to twenty participants incarcerated in a Canadian provincial women’s prison. We find that movement and expression in prison may create moments of agentic freedom for incarcerated women under certain conditions. We argue that more nuanced understandings of incarcerated women’s agency can be found in their daily negotiations of time and space, and movement can provide numerous meanings. Our findings suggest arts-based approaches within prison environments create opportunities for women to express their identity and sexuality through movement in ways otherwise not permitted in prison. For many incarcerated women in this study, this sense of freedom may be associated with the ability to focus and take care of themselves while confined.

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Non-presenting author: Amy Sheppard, Memorial University

Nicolas Carrier, Carleton University

Improper guilt: On exceptional postponements in the formal manufacture of criminals

Theoretical criminology has not yet taken stock of the crucial role played by the admission of guilt in summary justice: it allows criminal law to absolve itself from the violence it employs to manufacture criminals and produce ‘just’ punishments. Relying on some elements of Luhmann’s sociological theory, our thesis proposes that, in summary justice, the admission of guilt deparadoxifies legal self-referentiality, allowing criminal law to maintain a blind spot on the violence that precedes punishment. This thesis was developed following the observation of peculiar courtroom decisions, undocumented in the academic literature: exceptional instances where individuals are maintained in a state of pre-penal legal ensnarement on the grounds of an improper admission of guilt.

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Non-presenting author: Jeffrey Monaghan, Carleton University

Marsha Rampersaud, York University; Jackie Sikdar, York University

Sentencing Indigenous Young Adults

This presentation shares findings from the Emerging Adults in Canadian Criminal Courts project, which explores the landscape of young adult jurisprudence in Canada. The larger study analyzes sentencing decisions for young adults, ages 18 to 25, in each province and territory in Canada over a five-year period (2018 to 2022) (n=372) in order to understand patterns in sentencing young adults. The current study uses critical legal analysis to analyze a sample of these decisions that involve Indigenous young adults (n=86). Specifically, the current study documents the application of Gladue principles when sentencing young adults and assesses whether there are any variations in application across the country. Twenty-four years have elapsed since the Supreme Court of Canada’s landmark decision in R. v. Gladue. This decision referred to the overrepresentation of Indigenous peoples at all stages of the criminal justice system as a “crisis ”, particularly because this group represented only 2% of the country’s population at the time (para 47). Importantly, Gladue established a guideline for how sentencing judges should interpret section 718.2(e) of the Criminal Code , which instructs judges to practice restraint in the use of custodial sentences by considering all other appropriate sanctions, with particular attention to the circumstances of Indigenous offenders. This subsection of the Criminal Code was designed with the intention of remedying the hyper-imprisonment of Indigenous peoples across Canada. Yet, prior to Gladue, there was little understanding about how to interpret this subsection and in what circumstances to apply it. In Gladue, (and later refined in R. v. Ipeelee), the Court affirmed the duty of sentencing judges to take notice of the systemic factors that may have brought an Indigenous offender before the courts and instructed them to consider all alternatives to imprisonment. As important and promising as the Gladue and Ipeelee decisions were, section 718.2(e) has not had its intended effect (Rogin, 2017). Data shows Indigenous imprisonment rates have worsened over time: At the time of the Gladue decision (1998-99), Indigenous peoples represented 17% of admissions to prison. This number rose to 19-21% in 2006-07 and 27-28% in 2016-17 (Baigent, 2020). In 2020 Indigenous peoples represented approximately 9% of the Canadian population, while the number of Indigenous peoples in federal prisons surpassed 30%, a historic high signaling the Indigenization of Canada’s correctional system (Office of the Correctional Investigator, 2020). The current study explores whether this overarching national trend of Indigenous hyper-incarceration applies to young adults, and if any variation exists in its application to this age group across the country. This research asks: How do sentencing judges understand an Indigenous offender’s lived experiences and social background? How are these understandings applied at sentencing and with what effect? And how are Indigenous young adults situated within the broader national trend of Indigenous hyper-imprisonment? In total, 372 sentencing decisions pertaining to young adults ages 18 to 24 were collected from the WestLaw Edge legal database. This study employed a critical legal analysis to analyze decisions pertaining to Indigenous young adults (n=86). A critical race theoretical framework (Crenshaw, 1989; Davis, 2003; Alexander, 2012) helped to make sense of the patterns emerging in the data. Two key themes were identified: (i) a discrepancy in applying Gladue when it comes to the moral blameworthiness of accused Indigenous offenders and (ii) the reframing of Gladue factors as sources of criminogenic risk that justify custodial sentences. Findings reveal that post- Gladue decisions tend to prioritize the sentencing objectives of deterrence and denunciation over rehabilitation or restoration, which ultimately limits the potential positive impact of Gladue on imprisonment rates. Further, while Gladue principles are intended to mitigate sentencing, systemic background factors that are connected to colonial legacies are often interpreted by judges as “risk” and “danger” factors, leading to harsher penalties for Indigenous offenders, contrary to the spirit of Gladue . Overall, this study questions the ability of the courts to remedy colonial legacies at the sentencing stage. This presentation is a good fit for hte CRM1 panel, Canadian Contributions to Criminology, as it discusses a solution to Indigenous hyper-imprisonment that is uniquely Canadian.