Jamie Sarkonak: Looks like the courts aren't actually systemically racist

National Post

22-05-2025

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But overall, the study showed that the creeping evil of systemic discrimination that has allegedly corrupted the justice system (and, really, all of Canada) isn't actually there. Yes, it's true that Indigenous people are overrepresented in the justice system, but that's just a function of that population being charged with more crimes. Accounting for offence severity, they're guilty at just the same rate as the privileged whites. And, on a number of metrics, they receive gentler outcomes, as well: stayed charges, shorter prison terms, house arrest.
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There's even room to suggest white people are treated with more punitive force: the study found that half of Indigenous offenders had five or more prior convictions, compared to one-quarter of white offenders. 'This finding is important,' the authors noted, 'because evidence suggests that accused with more prior convictions are more likely to be reconvicted.' If that's the case, and both groups were found guilty at equal rates (when accounting for severity), one could infer that the criminal history of white offenders is taken into greater consideration.
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Then, there's the fact that white offenders were given more long-term sentences, and were less likely to get house arrest. That tracks with the aggressive nudging the federal government has been giving the courts regarding Indigenous offenders: lower jail sentences and more house arrest. The federal prosecution deskbook even tells Crown prosecutors to seek lighter sentences for Indigenous offenders. Heck, it's the law: the Supreme Court has required judges to consider race-based discounts for Indigenous people since the 1999 decision of R v. Gladue.
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White offenders did indeed have a higher acquittal rate, which could be attributed by some to anti-Indigenous racism by the courts — but it could also be a result of more white accused persons being taken all the way to trial. If weaker cases against Indigenous people are being habitually dropped, but the same isn't being done for white offenders, you'd likely see relatively more white acquittals. Indeed, federal prosecution guidelines instruct Crowns to consider Indigenous identity and 'the impact of systemic racism' in deciding whether to drop charges.
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Another explanation for the relatively higher jail rate for Indigenous offenders could be their greater likelihood to commit 'administration of justice offences' — these include charges for not showing up to court, as well as breaches of bail and probation conditions. These offences theoretically come with a greater likelihood of jail, because the offender has demonstrated trouble following court orders while out in the community. So, if a group was committing them at greater rates, one would expect that group to end up in jail at greater rates. Which is exactly what was found.
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There are still plenty of unknowns in the data, but what is certain is that we don't have definitive proof of a systemically racist justice system. Liberals will point to the demographics of the prison population as a sign of Canada's sins, but any further perusal of the data shows that the system isn't, in fact, tilted in all ways against Indigenous people.
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And yet, the Liberal government is almost certain to carry on with the Trudeauvian crusade against 'systemic racism,' which involves doling out vast sums to Indigenous groups and assisting them in setting up a parallel justice system, a 'decarceration strategic framework' and all sorts of other racially-restricted programs that erode the notion of equality in Canada. Evidence-based policy, indeed.
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