SOUND OFF: Should we settle for imperfect justice?
Yvon Dandurand is UFV’s Associate Vice-President, Research and Graduate Studies. A criminologist who has been at UFV for 15 years, he is very deeply involved in justice reform and human rights in Canada and around the world.
By Yvon Dandurand
|Yvon Dandurand has examined justice reform in many countries.|
In 2007, we were all reasonably confident about our economy. We trusted our financial institutions implicitly, yet a huge financial crisis was looming. It affected not only people’s wealth, but also their confidence in financial institutions and in government.
One could draw some useful analogies between our financial institutions and our justice institutions, starting by the false sense of confidence and security that they inspire until the major flaws are exposed. Both systems are largely shaped by the self-serving arguments of a specialized elite. They are rarely transparent and they are both incredibly resistant to change despite a rapidly changing world. Both financial and justice institutions run on public confidence.
A recent study released by the BC Branch of the Canadian Bar association showed that only 50% of British Columbians expressed confidence in the justice system, as opposed to 57% of Canadians. Either way, the figure is low and probably decreasing.
Criminal justice institutions are under a terrible amount of pressure to meet new challenges and face demanding public expectations. Public safety, the main commodity, is at a premium and the justice system is hard-pressed to deliver it to acceptable standards. They’d have us believe that the problems and mistakes that come to our attention are isolated incidents, not symptomatic of more systemic and recurrent problems. When we consider the frequency with which we become aware of botched investigations, crashed trials, failed prosecutions, incidents of corruption, abuses of power, excessive uses of force, long delays, or misrepresentations of the truth, we have to recognize that we are dealing with very serious systemic failings.
The RCMP has made mistakes in a number of important cases, prompting questions about its overall competence. Reports have concluded that there is a need to radically overhaul the way in which the RCMP is governed and to increase the accountability of the force.
In 2006/07 over 109,000 criminal cases were dropped in Canada (nearly 30 % of all cases), after an average 385 days. Over a 10-year period, the number of cases completed has declined by 10% and the average number of court appearances per case has increased by almost 50%. Criminal Code cases are taking longer to reach completion; the average time taken to process a case has jumped 72% in 13 years. In 2007 it was more than 8.3 months; five years earlier it was six months. Yet crime rates have dropped and are still dropping.
The Canadian system is certainly not the worst one. The problems it faces are similar to those in many other countries I have a chance to work in. We know that we have an organized crime problem in this country, but it could get a lot worse. A few months ago, I had an occasion to participate in a small project in one of the Mexican states where local prisons are filled with kidnappers and dangerous drug traffickers. Local prosecutors cannot go anywhere without a heavy armed escort and every so often one of them gets killed. In another part of Mexico, judges are often kidnapped or killed by members of criminal gangs who often successfully intimidate justice officials when they cannot simply corrupt them.
A few weeks before the earthquake, I worked with officials in Haiti on the issues of fraudulent adoptions and child trafficking; I could see how the police and other elements of the justice system were part of the problem, not the solution. There are countries where corruption is systemic and endemic.
The criminal justice system requires immediate attention, but Canadians seem prepared to ignore this. During my career, I have watched the Canadian system become less transparent, stubbornly resistant to change and accountability and crafty in justifying its failures. Canadians have grown accustomed to inadequacies of their justice system. Those who are responsible for that system are counting on the public’s tolerance and poor memory. Can they spread enough red serge uniforms around the Olympic ceremonies to compensate for the recent RCMP scandals? Someone somewhere is betting that they can.
There are a number of reports that have analyzed many of these fundamental issues, and more on the way. The fact that we have some serious problems with criminal justice systems and our procedural law is openly admitted by many honest officials, yet serious justice reforms are not forthcoming. Justice systems everywhere are in need of a major overhaul, yet we don’t find many leaders and politicians who have the courage to accept the challenge.
My specialty is criminal justice reform. Over the last few decades, as crime went global, so did I. I have had wonderful opportunities to work in countries with justice leaders who are committed to rebuilding their justice institutions. I have been involved in research, evaluation and policy development regarding all kinds of criminal justice reforms: comprehensive criminal justice reforms in Ethiopia; legal aid in China; juvenile justice reforms in Latvia, Myanmar, India, Bangladesh and Vietnam; restorative justice in Turkey, Uruguay, Mexico, Jamaica, Myanmar and Viet Nam; prison reform in Uganda, Uruguay, Argentina, and Southern Sudan; police reforms and civilian oversight of the police in Thailand; violence against women, in Mexico, Caribbean countries and several Latin American countries; human trafficking in Viet Nam, Haiti and other places; as well as firearms control, witness protection, counter-terrorist measures, money laundering and corruption in various parts of the world.
I have specialized over the years in supporting international cooperation in the criminal justice area. This is largely supported by various international treaties that have been adopted over the last decade or two. Criminal justice systems traditionally defined their role and the extent of their reach, or jurisdiction, in terms of their territory. They now have to deal with the increasingly deterritorialized nature of crime. They have to learn to cooperate with each other and that is not as easy as it may seem. Criminal justice systems around the world are rooted in a distant past and are slow to change. Their methods and processes are often incompatible with each other. Yet, each system jealously protects its legal tradition and its exclusive sovereignty-based jurisdiction over criminal matters. As crime becomes more globalized and transnational, justice systems are uneasily contorting themselves to try to comply with their new obligations under a fast-growing body of international law. One convention at a time, justice systems of the world are being bent out of shape, and forged again to meet new challenges. They often forget their real priorities as they purport to wage “wars” on drugs, on organized crime, or terrorism.
That too is disappointing. When one starts paying attention to the challenge of controlling criminal access to firearms, it does not take long to figure out how governments are often blatantly complicit with the illegal arms market. When one examines international efforts to control the spread of hatred, violence, and terrorism, one quickly sees how unwilling governments are themselves to renounce these means or how the terrorist groups they supported at one time or another are the ones they are fighting today. When one looks at the problem of corruption, governments soon appear to be more concerned with the corruption they observed among their neighbours than that which prevails in their own backyard. When one is concerned about human trafficking, one soon finds out how governments have a general tendency, in spite of the eloquent discourse, to be far more concerned about protecting their borders than the poor victims. In the end, a superficial concern for victims of human trafficking can conveniently help justify some pretty nasty practices for controlling and harassing illegal immigrants.
Once upon a time, Canada had a law reform commission which made it its business to remind us constructively of a few “inconvenient truths” about our justice system. That too has been replaced by carefully crafted press releases from politicians. Our politicians apparently felt that the law commission was upsetting their ability to control their policy agenda.
There are a wide range of challenges that justice systems all over the world are facing. The “experts” can enable and facilitate some of these crucial justice reforms, but ultimately the process of reform is a political matter. It takes a courageous politician to engage in comprehensive reforms and the political payoffs for them are minimal. It seems to me that we suffer from a severe shortage of courageous politicians, but also of informed citizens.
It is so easy in this field to be cynical. Canadians must care enough about their own justice institutions to demand some fundamental reforms. People like me have to care enough to remind Canadians that their justice institutions are in real trouble and need some real fixing.