Why we are transforming the criminal justice system

2017 marks the 150th anniversary of Confederation, and the 35th anniversary of the Canadian Charter of Rights and Freedoms.

This is the year for celebrating who we are and how far we have come as a country. It is also a year to envision what kind of country we want Canada to become, and how our justice system will reflect this vision.

A strong foundation

Canada’s justice system is considered among the best in the world. Many other countries have emulated our Charter and Canadian judicial officials are often chosen to serve on international courts and tribunals.

Crime and severity of crime rates have been declining, and Canadians generally feel safe:

  • Crime rates are as low as in the early 1970sFootnote 1
  • The Crime Severity Index has declined 31% in the last decadeFootnote 2
  • 9 in 10 Canadians are satisfied with their personal safety from crimeFootnote 3
  • 8 in 10 Canadians feel safe in their neighborhoods at nightFootnote 4
  • 76% of Canadians have confidence in the policeFootnote 5

Challenges still remain

Despite its many strengths, there are ways Canada’s justice system needs to change to ensure long-term safety and justice for all Canadians. The system has become inefficient and at times crippled by delays. Judges have less discretion than ever to ensure the punishment fits the crime for the individual before them. Victims often feel isolated, re-victimized, and voiceless. Sexual assault reporting rates are unacceptably low, showing a lack of faith in the system. Indigenous peoples are seriously overrepresented in our prisons, particularly females. Police stations and jails often serve as inappropriate substitutes to treatment and rehabilitation for those suffering from mental illness and addiction.

System delays and inefficiencies

Delays within the justice system are harmful to all involved - victims, communities, and the accused. Due to the time it takes to get to trial, there are currently more people in provincial jails awaiting trial or sentencing than actually serving sentences. Victims and their families often have to wait years to see justice done, and since the recent Supreme Court of Canada decision in Jordan, some have seen charges against the accused dismissed before trial, due to constitutionally unacceptable delays. Delays and inefficiencies make it harder for the criminal justice system to focus on catching, convicting and punishing serious offenders.

There are many reasons for the current situation, and no one solution. One reason is the large number of “administration-of-justice” charges in the system. These include offences like failing to appear in court or breaching probation and bail conditions, often for actions that are not in themselves crimes such as a no-alcohol condition. Cases like these use up a tremendous amount of time and resources but do not always provide greater protection to the public.

It has also been suggested that a culture of complacency exists in our courts that must be reversed. The system has grown accustomed to and comfortable with delay.

Less discretion for judges

For an increasing number of offences, judges are no longer able to impose sentences they deem to be fair and reasonable for the particular offender before them, in all of the circumstances of the case, and must instead impose mandatory minimum penalties. For many offenders, this is not a problem. Their actions are deserving of serious punishment. Indeed, some suggest mandatory minimum penalties provide certainty in sentencing and help to ensure people are treated equally. In practice, though, they often make it hard to ensure the punishment fits the crime.

Many question whether mandatory minimums make Canadians safer. Studies in the United States and elsewhere show they do not deter crime. Recent data suggests they result in shorter sentences, fewer guilty pleas, and longer trials (including more Charter challenges). More victims are forced to testify and backlogs increaseFootnote 6.

The question, ultimately, is whether mandatory minimum penalties are actually working to make Canadians safer.

Low rate of sexual assault reporting

Sexual assault incidents are seriously under-reported in Canada. Only 5% of sexual assaults perpetrated against individuals 15 years and older were reported to police in 2014, compared to 31% from all crimes.Footnote 7 Victims and survivors of sexual assault often face significant barriers in reporting crimes to police and testifying in court. The charging, prosecution and conviction rates in cases of sexual assault are lower than for other types of violent crime. These statistics suggest victims of sexual assault lack faith in the criminal justice system and rightly feel their voices aren’t being heard.

We need to better understand the needs of sexual assault victims, including more insight into the impacts trauma can have. It may be that certain victims need to be empowered with options other than the adversarial system to seek justice, such as restorative justice and easier access to civil remedies.

Overrepresentation of Indigenous Peoples

Perhaps the most problematic aspect of Canada’s justice system is the overrepresentation of vulnerable populations as both offenders and victims.

In Canada, Indigenous people are the most at-risk of becoming involved with the criminal justic system. The degree of overrepresentation cannot be understated.

  • While Indigenous adults make up about 4.1% of the Canadian population, in 2016-17 they represented 30% of admissions to provincial/territorial custody and 27% of admissions to federal custody. Footnote 8
  • 50% of youth admitted to custody in 2016/2017 were Indigenous, despite making up only 8% of Canada’s youth populationFootnote 9

Indigenous over-representation in custody described below

Text version: Indigenous overrepresentation in custody
Indigenous overrepresentation in custody Indigenous people
Indigenous adults in the general population 4.1%
Indigenous adults in federal custody admissions 27%
Indigenous youth in the general population 8%
Indigenous youth in custody admissions 50%

Source: Malakieh, Jamil. 2018. Adult and youth correctional statistics in Canada, 2016/2017. Statistics Canada.

Other vulnerable populations

  • Up to 80% of federal offenders have past or current substance abuse issues. Footnote 10
  • According to some studies, 2/3 of crimes are committed while under the influence of drugs or alcohol.Footnote 11
  • Estimates of Fetal Alcohol Spectrum Disorder prevalence among correctional populations range from 10% to 23%, 10 times higher than in the general population.Footnote 12
  • Those suffering from mental illness are also greatly overrepresented in the criminal justice system, suggesting a need for more tailored and nuanced reforms.

Four stories, each with two paths

Every person’s experience with Canada’s justice system is different, but based on available evidence, there are some examples of what those experiences will likely be.

Read the four stories

Towards transformation

Canada's criminal justice system is complex: federal, provincial, territorial, and municipal agencies and organizations all play a part and share responsibility for the criminal justice system. Transforming the criminal justice system involves examining how the criminal justice system works and how its different components relate to other social support systems in our society such as housing, health care, education, employment, training and child protection.

As part of this process, the government is working with partners and identifying changes that can be made now to respond to known problems. Over the longer term, it will identify further reforms that can make the system more just, compassionate, accessible and fair and that promotes the safety of Canadians and a peaceful and prosperous country.

About transforming the criminal justice system

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