Jasjit Goraya

Canadian criminologists and policymakers alike have long debated the issue of “disproportionate minority confinement,” or the overrepresentation of minority youth in the criminal justice system. This debate has been ongoing since the early 1980s, with seemingly no end in sight. Key among the reasons for its never-ending nature include: the fact that policies often die in the implementation process; a lack of adequate funding for extra-judicial programs; and difficulties of coordinating across various government ministries to address the complexities behind the overrepresentation.

While crime rates in Canada have been declining since the early 1990s, the rate of incarceration among Aboriginal and black youth has remained largely unchanged. Put simply, minority youth have not experienced the same decline in incarceration rates as their Caucasian counterparts.

The recent decline in overall youth incarceration rates in Canada has been credited to the implementation of the Youth Criminal Justice Act (YCJA) in 2003, which shifted the youth criminal justice system’s formerly punitive approach to one that emphasizes community programs and rehabilitation. The success of the YCJA is largely attributed to its introduction of extra-judicial measures designed to keep youth out of the prison system. However, despite its effectiveness in reducing overall youth crime, minority youth continue to be grossly overrepresented within the criminal justice system.

Systemic racism is an element of this debate that cannot be ignored. Toronto-based criminal lawyer, Ried Rusonik suggests that similar offences are systemically punished differently:

“Black people go to jail for possessing and selling crack cocaine. White people who sell and use
 cocaine powder rarely do … White people get all of the discharges and conditional sentences
 for illegal possession of firearms; black people go to jail. Name any essentially similar offence and the
 case law always seems to find it more serious when a black man commits it, and this trend is no
 different for the minority youth of this nation.”

In the case of Canada’s Aboriginal youth, a history of systemic discrimination, addition, and the breakdown of the family unit have resulted in significant overrepresentation in the criminal justice system. Program director at Aboriginal Legal Services of Toronto Jonathan Rudin has called foster and state homes, as well as jails, the “new residential schools for Aboriginal youth.” In a similar vein, black youth in Canada are more likely than Caucasian youth to face poverty, unemployment, neighbourhoods violence, and family challenges — all of which can contribute toward arrests. Once arrested, a cycle begins, as systemic issues stack the deck against already disadvantaged youth.

The federal government has pushed through numerous attempts to reduce youth crime. The introduction of the YCJA followed a series of amendments to the Young Offenders Act (YOA), originally introduced in 1984, under which Canada incarcerated youth at four times the rate of adult offenders (and was ultimately called out by the United Nations to reduce the overrepresentation of Aboriginals and black youth in the criminal justice system). The YJCA was intended, at least in part, to correct the faults found in the preceding legislation.

However, federal legislation has done little to reduce the problem of disproportionate minority confinement. While Aboriginal youth today make up about six per cent of Canada’s total youth population, they account for approximately 46 per cent of its incarcerated youth population. Aboriginal youth also receive longer prison sentences on average regardless of offense severity, re-offending patterns, or criminal records. For black youth, the proportion of admissions into the correctional system is four times the national average. Diverting factors espoused by the YCJA, such as extra-judicial measures, have proven much more effective for Caucasian offenders than minority populations.

Disproportionate minority confinement is not just an issue in Canada. University of Toronto criminology professor Scott Wortley has compared the Canadian situation to that of the United States and found overrepresentation patterns to be similar. Federal youth incarceration rates in the U.S. are three to four times those of Caucasian youth, and overrepresentation is most prominent in states which have introduced community-based delinquency prevention programs for youth (like those in the YCJA).

Unlike Canada, however, the U.S. has adopted federal legislation that focuses specifically on the overrepresentation of minority youth and holds states accountable for addressing the issue. In 2002, the Office of Juvenile Justice withheld 20 per cent of a state’s formula allocation grant (funds appropriate by Congress and delivered through the Office) for the next year if it failed to address overrepresenation.

While the government recommends that states spend a majority of their grants on decreasing disproportionate minority confinement, actual spending ranges from as low as 20 per cent to as high as 80 per cent. The program success has been hindered by a lack of direction as to how the money should be allocated locally. It is also difficult to compare success across states given differences in state legislation and funding mechanisms. However, Canadian criminologists have argued that this model is worth exploring, as specific province-based agendas for addressing the overrepresentation of minority youth in the criminal justice system could be effective — each province has varying degrees of overrepresentation, and so federal funding could be tied to province-based plans. Federal legislation would ultimately be required to hold the provinces accountable and to ensure results.

While the complexities of addressing disproportionate minority confinement are numerous, and can be understandably overwhelming for policymakers, there is a need to address this issue. A step towards a credible solution in Ontario could be to bring together all of the relevant ministries who have a stake in criminal justice and youth matters, and create an overarching, comprehensive, and horizontally-administered strategy dedicated to managing the challenges of youth incarceration. According to youth policy advisor Alvin Curling, “there are enough resources in the province to move towards solutions.” The challenge now is how to best allocate those resources.

The price that Canadian taxpayers pay for incarcerating youth is far higher than the price society would have to pay in order to implement province-based solutions for addressing the overrepresentation of minority youth in the criminal justice system. On average, it costs more to incarcerate a youth today than it does to put that same youth through an alternative extra-judicial measure, such as community programming. Moving forward, Canada needs to find a way to encourage the provinces to create their own individual, comprehensive plans on how to address disproportionate minority confinement. To do so would be an investment in the country’s future.

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Jasjit Goraya is a 2016 Master of Public Policy candidate at the University of Toronto and a Compliance Analyst with the G20 Group at the Munk School of Global Affairs. She previously completed an Honours Bachelor of Arts Degree in Political Science and Criminology at the University of Toronto. Jasjit’s main areas of interest include Canadian youth justice policy, foreign affairs, and immigration policy.

[Image: Getty]