University of Toronto Undergraduate Criminology Review

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AFFLIATIONS CENTRE FOR CRIMINOLOGY AND SOCIOLEGAL STUDIES School of Graduate Studies, University of TorontoThe Centre for Criminology & Sociolegal Studies is a research andteaching unit at the University of Toronto. Founded in 1963 by Pro-fessor John Edwards, the Centre’s faculty and students study crime,order, and security from a variety of disciplinary perspectives andtheoretical approaches. With backgrounds in sociology, history, law,psychology, philosophy, and political science, the faculty are activelyengaged in Canadian and international criminological research. CRIMINOLOGY STUDENTS’ ASSOCIATION Arts and Science Union, University of TorontoThe Criminology Students’ Association (CRIMSA) is an undergraduateorganization for Criminology students at the University of Toronto. Itspurpose is to extend the learning experience for students beyond theclassroom by broadening the students’ participation in the life of theCriminology program and at the University of Toronto. CRIMSA orga-nizes career seminars, special lectures, and interesting excursions, aswell as exciting social events that are designed to help foster newfriendships among fellow Criminology students. 3

TABLE OF CONTENTSLETTER FROM THE EDITOR - IN - CHIEF 5MASTHEAD 2016-2017 6FACULTY ADVISORS 7GRADUATE ADVISORS 7Theories, Empirical research, and Publication Bias: 8A Review of Violent Video Game Effects on YouthTerren LeeClosing the Distance: : 15Between the PunisheBr and the PunishedShayyan MalikA Comparative Analysis of International Law 22Responses to Gendered Sexual Violence:Rwandan Civil War and Yugoslav WarsTanzim RashidNot Your China Doll: The Potential Consequences of 26Formalizing the Cultural Defence in the ContemporaryCanadian Criminal Justice System, and the Need for anIntersectional ApproachEmily Yin Kot KotManaging the Muslim Identity in the Post 9/11 32Age of Terrorism Age of TerrorismFlorence Chan Florence ChanDiverting Youth: An Analysis of the Efficacy, Strengths 37and Weaknesses of the Diversion Programs in Canada daShrikha Khemani Shrikha KhemaniJustice Initiatives and Black Canadians: Mending 44the Gap the GapOluwapelumi Olatunbosun Oluwapelumi OlatunbosunABOUT OUR AUTHORS ABOUT OUR AUTHORS 52 4

LETTER FROM THE EDITOR-IN-CHIEFDear valued readers,It is my great honour to present the fourth volume of the University of Toronto Un-dergraduate Criminology Review (UTUCR). The UTUCR is an academic journal pub-lished annually by the students of the Criminology & Sociolegal Studies programunder the supervision of Faculty Advisors. This is an avenue through which under-graduate students are able to share their academic work with a wider audience,and gain a sense of being published in a journal. The content of this journal is everchanging, and depends on issues, ideas and debates prevalent within a year. Thisjournal, then, is more than just a few published essays. It is a place where differentideas are presented pertaining to various criminological issues. This journal con-tains seven high-quality essays on matters requiring public attention and debate.This journal would be incomplete and non-existent without the contributions madeby the wonderful masthead. These students have devoted their valuable time torefine the papers in terms of grammar, spelling, citations, and style. Their dedica-tion and commitment has evidently increased the quality of this journal. I wouldalso like to thank the Faculty Advisors, William Watson, Mariana Valverde, ErickLaming, and Giancarlo Fiorella, for their involvement in the publication and edit-ing process. I would also like to thank the Centre for Criminology and SociolegalStudies for their support in attaining the physical copies that you have in yourhands. And finally, I would like to thank Daniel Konikoff, who has always been agreat helping hand and mentor throughout this process. He was always willing tohelp me and answer all the questions I could possibly have, having an invaluableimpact on this journal.In my second year, I joined the UTUCR team as a junior editor and was absolute-ly thrilled to do so. Every year since then, to now, being the Editor-in-Chief, thethrill and dedication has remained. This journal process has taken me a year andI always reflect back on the previous volumes and commend all the effort every-one has put into this journal since its inception. I am certain that the next year’smasthead will continue to put together a marvelous journal, giving students moreopportunities to share their work. I look forward to seeing the journal reach newheights and reach the endless possibilities that await.For any inquiries, comments, or requests to attain physical copies of the journal,please feel free to contact us at [email protected] truly,Radha LambaEditor-in-Chief | 2016-2017University of Toronto Undergraduate Criminology Review 5

MASTHEAD 2016-2017 EDITOR-IN-CHIEF Radha LambaSENIOR EXECUTIVE EDITORS Ilda Cuko Richard Kennedy ARTICLE EDITORS Amy Lin Annie Chen Emilie Nectoux Felisha Jagiah Jane Clause Nikita Bakaleni Terren Lee PRODUCTION MANAGER Amanda Li 6

FACULTY ADVISORS Giancarlo Fiorella Ph.D. Student – M.A. (Socio-legal Studies, York) Erick Laming Ph.D. Student – M.A. (Legal Studies, Carleton) Mariana ValverdeProfessor of Criminology and Acting Director of the Cen- tre for Criminology & Sociolegal Studies B.A. (Brock), M.A., Ph.D. (Social and Political Thought, York). William Watson Lecturer and Undergraduate Coordinator ofCriminology | B.Sc. (University of Leicester), Ph.D. (Cam- bridge) GRADUATE ADVISORS Daniel Konikoff Master’s in Criminology & Sociolegal Studies, University of Toronto 7

TAHNEDOPRUIEBLS,ICEAMTIPOINRICBAIALS:RESEARCH,A Review of Violent Video Game Effects on Youth TERREN LEEABSTRACT This paper seeks to reviewexisting empirical research on the ef-fects of violent video games onyouth behaviour in order to iden-tify whether public concerns onyouth internalization of violentvideo game content are warrant-ed or misinformed. This essay at-tempts to revise the inconsistentfindings and provide a refined under-standing of the issue at hand. The-oretical frameworks that pertain tointrapersonal and interpersonal factors arefirst identified in order to support the exam- Artwork derived from original artwork created by Rihards Gromuls and GoodFridayys found on NounProject.comination and make sense of existing studies.Evidence on both sides of the hypothesis will then be evaluated with thepurpose of demystifying conflicting findings. Finally, this paper discussesflaws in empirical studies and media bias that are largely responsible for thedichotomy of research findings and public opinion. Suggestions are madeto avoid future shortcomings with regards to study design. After consider-ing several study findings and controlling for flawed research designs, thisessay finds that exposure to violent content in video games merely leadsto desensitization in youth towards violence but that no evidence has yetshown that desensitization leads to violent youth behaviour. Recent virtualreality game platforms are not discussed or considered in this paper, asthere is little research on the behavioural impact of such simulators. Violentvirtual reality games would be a valuable avenue of research and should beexplored in forthcoming studies. 8

Introduction This essay explores the research and media literature surrounding the issue of violentvideo games, and asks whether the findings on their negative influence hold any merit. Theo-retical frameworks will first be presented, followed by an overview of empirical studies on therelationship between violent video games and violent youth behaviour. Empirical studies andmedia bias will then be discussed with the aim of shedding light on issues that have misinformedthe public and policymakers alike. Ultimately, this paper will argue that violent video games donot cause, directly or indirectly, youth violence. Instead, violent video game content was found tomerely desensitize youth to violence.Theoretical Frameworks Several theoretical explanations have been suggested for understanding the relation-ship between violent video games and violent youth behaviour. For the purposes of this paper,youth violence will encompass both deviant and aggressive behaviour. Theoretical frameworksrelated to the current issue fall under two categories: internal and interpersonal.Internal Factors Many explanations rest on an individual’s internalization of violent elements in videogames. Motivational structures serve as a compelling interpretation of this link, suggesting thatthe internalization of media by consumers is more reliant on an individual’s personal interestrather than a video game’s violent content (Ferguson, 2015). One motivational structure the-ory Uses and Gratifications Theory, suggests that humans are regulating and thus respond totheir own needs (Sherry, Lucas, Greenberg, & Lachlan, 2006). In the case of video games, theconsumption of violent games serves some purpose for the player, such as entertainment andeducation. Therefore, violent content in video games will likely have varying influences on indi-vidual youth consumers, depending on what the youth seeks to achieve from playing the game(Ferguson, 2015). The personality traits of an individual would therefore be a larger determinantof how violence in video games translates into violent behaviour (Ferguson, 2008). A related paradigm is the effect of exposure to violent content on desensitization,which is a reduction in emotional reactivity to violence (Carnagey, Anderson, & Bushman,2007). Regular exposure to violent content (particularly realistic simulations) from video gamesnumbs one’s reaction to real violence (Carnagey et al., 2007; Dill & Dill, 1998; Funk, Baldacci,Pasold, & Baumgardner, 2004). Studies have suggested that desensitized players may cause vi-olence with no fear or guilt, due to a conditioned lack of sympathy towards victims (Carnageyet al., 2007). Since violence is used in all mediums of entertainment, violence may also becomeassociated with fun (Dill & Dill, 1998; Grossman & DeGaetano, 1998). Games such as Call ofDuty reward players for killing, and have been thought by some theorists to justify and perpetu-ate aggressive behaviour (Dill & Dill, 1998; Funk et al., 2004; MacDonald, 2014). However, ifviolence in video games were portrayed to have consequences and its perpetrators were vilified,then a youth’s propensity to imitate violent behaviour would be mitigated, suggesting a rewardsand punishments model (Dill & Dill, 1998; Grossman & DeGaetano, 1998). Another contending explanation is Routine Activities Theory. The time spent onplaying video games removes opportunities for the individual to commit crimes and also bevictims of crimes (Ferguson, 2015). This suggests that youth who spend a lot of time playingvideo games are much less likely to engage in criminal behaviour or become suitable targets forpotential offenders. Youth who do not have their time occupied by playing video games or otheractivities may choose to alleviate their boredom by engaging in criminal activity.Interpersonal Motivations Interpersonal motivations pertain to the external influences from peers and family.It has been suggested that some video games, even those with violent content, provide oppor-tunities for friendship and socialization for youth (Ferguson, 2015). Relationships with prosocialpeers may provide the social bonds necessary to discourage a youth from engaging in violentbehaviour. However, connections with mischievous peers could also negatively influence a per-son towards antisocial behaviour. This theory is ultimately dependent on the personality of anindividual, as this is largely contingent upon the peers with which they choose to associate. 9

Parental supervision has been forwarded as a screening factor in the issue of youthexposure to violent video games. Due to the portable and ubiquitous nature of video games,they are not subject to high levels of parental supervision, unlike other forms of violent mediacontent (Janssen, Boyce, & Pickett, 2010). The initial moment of supervision a parent provides inthe context of violent video games is during the purchase of the game, where the parent is madeaware of a game’s rating based on its content (American Academy of Child and AdolescentPsychiatry, 2006; Ferguson, 2015). However, this initial screening has had less significance overthe past few decades with the rise of free-to-play online and offline games (MacDonald, 2014).Unsupervised youth access to violent content has therefore increased due to the prevalence ofeasily accessible content. Without supervision, youth have unrestricted exposure to violent con-tent and have no guidance from their parents in regards to making sense of graphic violence.Game addictions have also been suggested to deteriorate family bonds (Zorbas, Ulas, & Kizildag,2015). Since family is a large factor in a child’s social and emotional development, a loosenedfamily structure can serve as a risk factor in a youth’s propensity towards engaging in antisocialbehaviour (AACAP, 2006; Zorbas et al., 2015).Empirical Studies This paper will solely consider studies pertaining to North American youth popu-lations. This is needed to control the different cultural value backgrounds and accessibility tovideo games that youth have in different geographical locations (AACAP, 2006). Further, youthwill encompass both children and adolescents (ages 10-24) due to the fluidity of its categoriza-tion (Youth, n.d.). Studies that allegedly found support for the hypothesis will first be discussed,followed by research that found no link between violent game play and violent youth behaviour.Studies Purportedly Showing a Positive Link Janssen et al. (2010) examined the relationship between screen time and physical vi-olence in Canadian youth. The study found that playing video games has a slight positive cor-relation with violence in females but not in males (Janssen et al., 2010). However, this findingcontributes little to the current issue since the study did not control for whether youth wereplaying violent or non-violent video games and how much time was spent playing each type. Dilland Dill’s (1998) meta-analysis revealed a mix of findings across a wide set of empirical research.A majority of these studies had findings supporting the relationship between violent video gameconsumption and violent youth behaviour such as increased anxiety and aggressiveness. Carnagey et al. (2007) sought the effects of violent video game exposure on one’s de-sensitized perceptions of real-life violence. Results found that college students who played violentvideo games showed less of an increase in heart rate and galvanic skin response when exposed toviolent content, suggesting that exposure to violent content resulted in desensitization (Carnageyet al., 2007). The authors argue that desensitization could explain why no witnesses helped KittyGenovese in her 1964 murder incident, despite hearing her being assaulted for almost half anhour (Carnagey et al., 2007). The effects of desensitization alarmingly reduce one’s attentionand recognition of violent indicators, reducing protective community members into bystanders. Funk et al.’s (2004) study explored the effects of several forms of media violence ondesensitization, finding that only violence portrayed in video games was associated with lowerempathy, whereas other entertainment forms did not show any correlation. Violence in videogames was also associated with stronger pro-violent attitudes (Funk et al., 2004). However, thestructure of the study did not investigate causality; results were merely correlational and the re-lationship between exposure to violent content and youth violence was weak. Funk et al.’s (2004)study also found that individual characteristics affected a child’s vulnerability to negative influ-ence from exposure to violent content in video games. Therefore, this study does not contributegreatly to supporting the link between violent video games and youth violence.Studies Showing No Positive Relationship Multiple studies have found that violent video game consumption by youth and ad-diction to video games has increasingly grown over the past two decades (Dill & Dill, 1998;Ferguson, 2015). Meanwhile, American government data displays an overall decline of seriousviolent crimes by youth (Childstats.gov, 2013). Coupled together, these statistics demonstrate 10

that high levels of violent video game consumption correlate with reduced youth violence on amacro-level. Although these numbers are merely correlational, it does undermine studies thatpurport a positive link between violent game consumption and youth violence. Two of Ferguson’s (2008) meta-analyses found no evidence in existing literature sup-portive of a causal relationship between violent video game play and aggression. Consistentwith motivational structures, Ferguson (2008) proposed that violence in video games does notcause youth to act violently; inherently violent youth simply choose to play violent video gamesas the genre appeals to their aggressive character. Furthermore, once external variables such asexposure to family violence were controlled for, studies showed no correlation between violentvideo game play and youth aggression (Ferguson, 2007b; Ferguson, 2008; Janssen et al., 2010).In Ferguson’s (2007b) meta-analytic review, it was found that violent games might stimulateaggressive thoughts, but it was determined that these emotions did not necessarily translate intoviolent behaviour. Ferguson (2007b) identified that some violent games, such as Re-Mission, leadto a higher quality of life and self-efficacy for youth cancer patients in another study.The Uses and Gratifications Theory is thus consistent with each of Ferguson’s studies. Youthappear to be playing games to serve some other purpose; aggressive youth may use video gamesas an outlet for their anger, while young cancer patients may turn to video games to do thingsthat are unachievable in the real world (MacDonald, 2014). Another study by Ferguson (2010)demonstrated that video games promoted social involvement, hence developing social bonds (i.e.online games such as League of Legends) and education (i.e. Plague Inc.—a game that rewards theplayer for killing populations with viruses, but also educates on viral terms and symptoms). Thisfinding is consistent with Routine Activities Theory. Prosocial relationships that a youth can de-velop over an online game (violent or non-violent) can contribute to a reduction in opportunitiesand propensity to engage in violent and deviant behaviour. Weighing the evidence on both sides of this issue, it is clear that study results merelysupport the argument that playing violent games leads to the desensitization of emotions. How-ever, much evidence stands against the hypothesis that violent games lead to violent behaviour.The aggregate results imply that youth are less emotionally stirred in the face of real-life vio-lence, but this merely indicates indifference and not a propensity to act violently. Youth maybe cruel, as they may not sympathize with a victim of violence, but this does not necessitatethat youth would be perpetrate violent acts. As Uses and Gratifications Theory estimates, youthchoose to play violent video games as a means to an end, which could be to entertain or to chan-nel their anger. Motivational structures suggest that youth that are not innately aggressive wouldself-determine whether violent content in video games is moral or immoral.Why Findings Are Inconsistent Results of several existing empirical studies reveal concern for literature publishedon the effects of violent games. Some empirical studies conducted in this field are laced withresearch design flaws that undermine their purported findings. Some of these flaws could havebeen affected by media publication biases and may also have exerted an influence over thesebiases. Each will be discussed below.Tainted Empirical Studies The American Psychological Association (APA) is a major proponent of the positiverelation between violent video games and an increase in aggression, a conclusion their taskforcefound through reviews of research (Ferguson, 2008). Ferguson (2008) criticizes the integrity oftheir findings, indicating that the APA’s panel consisted of members who were the authors of theresearch reviewed. Independent reviewers and anyone who challenged the Association’s findingswere not invited to the panel. The absence of an objective and critical party in the panel raisessuspicion of bias, undermining the findings and evidence of studies that the panel promulgated. Meta-analyses by Ferguson have discovered the shortcomings of multiple indepen-dent studies. Several studies that purportedly found evidence in support of the correlation be-tween video game violence consumption and youth violence were found to be plagued withpublication bias (Ferguson, 2007a; Ferguson, 2007b; Ferguson, 2010). Publication bias was ex-ercised either by rejecting studies that presented negative findings more often than research that 11

offered positive findings of the hypothesis or by the selective reporting of research that did notconform to their hypothesis (Ferguson, 2007a). Studies subjected to publication bias are expectedto project inflated numbers and severity of their supposed positive findings. Once corrected forpublication bias, those studies of video games provided no evidence for the positive link betweenviolent video game playing and higher levels of youth aggression (Ferguson, 2007b). Fergusonalso highlights the inherent problem with the nature of violent video game studies. Video gamesare a popular form of entertainment amongst youth, with 98.7% of adolescents playing videogames to some degree (Ferguson, 2007b). With over 85% of video games containing violenceand over half of video games depicting serious violent elements, it is very easy to link isolatedincidents of youth violence with violent video games (Carnagey et al., 2007). Study designs have also been criticized for their methodology. Many studies that sup-port the link between violent game play and youth behaviour employ questionable measures. Anexperimental study by Anderson and Dill used noise blasts as a measure of aggression (Ferguson,2007a). Ferguson (2010) warns that noise blasts as an aggression measure are an inaccuraterepresentation and does not translate to criminally violent activity or aggression. Another ques-tionable measurement used in a study was the selection of violent words in a Fill-in-the-Blanksurvey after playing a violent game (Ferguson, 2008). The mere selection of words to completea sentence does not correlate with real-world violence. It merely demonstrates a connectionbetween violent games and aggressive thoughts. No indices of aggression (experimental or cor-relational) have been directly linked with violent youth behaviour (Ferguson, 2007a). A furtherproblem with the methodology in some studies is that no distinction is made between violent andnon-violent games in measurements (Dill & Dill, 1998). This makes the connection between vio-lent video games and youth violence vague and contributes little to the scholarly understandingof the effects of violent content in video games on youth behaviour.Media Bias Publication bias on part of the media is widespread. Grossman and DeGaetano’s(1998) Stop Teaching Our Kids to Kill presented the shooting incident of Michael Carneal.News outlets highlighted that Carneal was strangely proficient with a gun, in which the authorsargue that he learned to shoot a gun from playing violent video games just as military personneluse simulators to learn how to fire a weapon (Grossman & DeGaetano, 1998). Ferguson (2010)writes that the authors’ comparison between modern professional troops and volunteer nonpro-fessional World War II soldiers is a weak parallel. Ferguson (2010) also indicates that their claimthat video game violence is a predictor of youth violence is misinformed according to the largedecline in youth violence rates in light of the growing popularity of violent games. Age-culture shock has been suggested as an explanation for the moral panics sur-rounding violent video games (Ferguson, 2008). Many of society’s older members are unfamiliarwith video games (especially with some recent productions that depict more grotesque forms ofviolence) and are surprised to find adult content in many games. Politicians propagate exagger-ated consequences of violent content in video games. Former U.S. President Bill Clinton hasexpressed his concern on the issue, stating that the boundary between virtual and real violence isunclear for vulnerable children (Grossman & DeGaetano, 1998). MacDonald (2014) has writtenon violent content in video games, arguing that youth violence is linked to violent video gameconsumption. However, his non-empirical claims are based on dubious information. Most of thegames negatively cited in MacDonald’s (2014) piece do not reward the player for killing people,contrary to what the author believes. Killing innocent civilians in Grand Theft Auto, for example,punishes the player by having police pursue and apprehend the player’s character. Narrativesin the Call of Duty and Metal Gear Solid series also portray the exercise of violence to protect thegreater good while also revealing the devastating consequences of war to the player in memora-ble cutscenes. Portrayed in a virtuous manner, violent content in media can positively influenceand educate youth players on the concept of violence. These are some of the several instances of study design flaws and misinformed mediapublications. Both types of sources likely contribute to the development of one another andcatalyzed the partiality to uncover a positive link between violent games and youth violence.The promulgation of biased research findings and factually incorrect information can unfairly 12

penalize video game developers and youth consumers if policies were introduced to curtail youthconsumption of video games. Future studies should employ standardized methodologies andreview panels should consist of impartial representatives to provide media and literary authorswith non-biased information, thus avoiding unnecessary policies on violent video games.Conclusion This essay has reviewed theoretical models that interpret the relationship betweenvideo game and youth violence, evaluated empirical studies, and discussed the issue of empiricalresearch and media publication bias. Theoretical explanations for the hypothesis suggest therelevance of both internal and interpersonal factors such as motivational structures and desen-sitization effects in a youth’s propensity towards violence. An analysis of empirical studies over-whelmingly indicates that playing violent video games does not instigate youth violence. At best,exposure to violent content leads to desensitization in youth towards violence, and no evidenceshows that desensitization manifests in violent youth behaviour. Researchers and media culpableof publication bias contribute to the pool of inconsistent findings of the hypothesis. REFERENCESAmerican Academy of Child and Adolescent Psychiatry. (2006). Children and video games: playing with violence. Facts for Families, 91, 1-2.Carnagey, N. L., Anderson, C. A., & Bushman, B. J. (2007). The effect of video game violence on physiological desensitization to real-life violence. Journal of Experimental Social Psychology, 43, 489-496.Childstats.gov. (2013). America’s children: Key national indicators of well-being, 2016. Retrieved from http://www.childstats.gov/americaschildren/beh_fig.asp#beh5Dill, K. E., & Dill, J. C. (1998). Video game violence: a review of the empirical literature. Aggression and Violent Behaviour, 3(4), 407-428.Ferguson, C. J. (2007a). Evidence for publication bias in video game violence effects literature: A meta-analytic review. Aggression and Violent Behaviour, 12, 470-482.Ferguson, C. J. (2007b). The good, the bad and the ugly: A meta-analytic review of positive and negative effects of violent video games. Psychiatric Quarterly, 78, 309-316.Ferguson, C. J. (2008). Violent video games: How hysteria and pseudoscience created a phantom public health crisis. Paradigm, 12(2), 12-22.Ferguson, C. J. (2010). Blazing angels or resident evil? Can violent video games be a force for good? Review of General Psychology, 14(2), 68-81.Ferguson, C. J. (2015). Does movie or video game violence predict societal violence? It depends on what you look at and when. Journal of Communication, 65, 193-212.Funk, J. B., Baldacci, H. B., Pasold, T., & Baumgardner, J. (2004). Violence exposure in real- life, video games, television, movies, and the internet: is there desensitization? Journal of Adolescence, 27, 23-39.Grossman, D., & DeGaetano, G. (1999). Stop teaching our kids to kill: A call to action against TV, movie & video game violence. Harmony, 1-36.Janssen, I., Boyce, W. F., & Pickett, W. (2010). Screen time and physical violence in 10 to 16- year-old Canadian Youth. International Journal of Public Health, 57, 325-331.MacDonald, A. J. (2014, January 8). Video game addiction, virtual reality, and violence. Retrieved from https://ajmacdonaldjr.wordpress.com/2014/01/08/video-game-ad diction-virtual-reality-and-violence/Sherry, J. L., Lucas, K., Greenberg, B. S., & Lachlan, K. (2006). Video game uses and gratifications as predictors of use and game preference. International Journal of Sports Marketing and Sponsorship, 8, 213-224. Youth. (n.d.). In Merriam-Webster. Retrieved from http://www.merriam-webster.com/dictionary/youthZorbaz, S. D., Ulaş, Ö., & Kizildağ, S. (2015). Relation between video game addiction and interfamily relationships on primary school students. Educational Sciences: Theory & Practice, 15(2), 489-497. 13

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CLOSING THE DISTANCEBetween the Punisher andthe Punished SHAYYAN MALIK ABSTRACT Today, the prison population in Cana- da continues to grow at an astonish- Artwork derived from original artwork created by Anibileru ing rate (Gregg, 2014). Most prisoners Adelaru and Symbolon found on NounProject.com are serving a sentence for non-violent, relatively minor offences, in a place where they are caged, brutalized, and infantilized (Morris, 1995). Why are Canadians so quick to subject more and more people to such a fate?This paper borrows from Nils Christie’s (2000) notions of ‘moral indifference’and ‘social distance’ to account for and analyze these puzzling circumstanc-es. It examines the role of the media and the criminal justice system in man-ufacturing physical and social distance between the average person andthe reality of punishment. Their institutional practices demonstrate someof the most prominent ways in which the offender is often dehumanizedand punishment is depersonalized. In light of these practices, it becomeseasier to understand how a massive system of incarceration can be builtwith the implicit consent of the public (Davis, 2003). This paper goes on tostress the need for change by discussing the suffering of one of the mostvulnerable populations, the mentally ill, at the hands of this system. Theauthor concludes by suggesting a few solutions and recommending how toconceptualize alternative structures of punishment in a day and age wheremoral difference and social distance have contributed to the inevitability ofprisons. 15

“If locking up those who violate the law contributed to safer societies, than the United Statesshould be the safest country in the world. In fact the United States affords a glaring example ofthe limited impact that criminal justice responses may have on crime” – 1993 House of Com-mons Crime Prevention in Canada Report (Doern & Stoney, 2014). Numerous committees, reports, and investigations have concluded that prisons frus-trate their own objectives (Doern & Stoney, 2014). Far from increasing public safety or reducingcrime, there is a distinct recognition in the criminological literature that prisons create moredangerous offenders (Cayley, 1998; Lacey, 1994; Morris, 1995). Yet, Canada continues to buildmore and more penitentiaries (Gregg, 2014). This paper attempts to resolve this paradox by ex-ploring how social distance and the production of moral indifference allows prisons to be a firstresort to social problems in spite of their counterintuitive elements, as well as unjust and immoralfailures. This paper will begin with arguing that these two processes have created a permissiveenvironment where ‘criminal’ bodies are stripped of their social context and rendered deservingof punitive punishment. Expanding on this analysis, this paper will demonstrate why the questfor alternatives requires our most immediate attention by focusing on a group that experiencesthe brunt of the incarceration system: the mentally ill. It will conclude by highlighting variousabolitionist strategies which, could help to ‘close the distance’ and address social problems inmore meaningful and effective ways.The Politics of Division Today, the prison population in Canada continues to grow at an astonishing rate(Gregg, 2014). Most prisoners are serving a sentence for non-violent, relatively minor offences,in a place where they are caged, brutalized, and infantilized (Morris, 1995). Why are Canadiansso quick to subject inordinate amounts of people to such a fate? A possible explanation for thisphenomenon lies in Nils Christie’s notions of social distance and production of moral indiffer-ence (2000), which are facilitated by the media and the criminal justice system itself.Media (Mis)Representations Research demonstrates that for most Canadians, news media is the primary sourceof information about prisons and prisoners (Roberts, 2005). Unfortunately, simplistic media de-pictions of criminality are so pervasive that much of the public views criminals as inherentlyevil (Kappeler & Potter, 2005; Minaker & Hogeveen, 2009). What the public constantly sees ontelevision is a “crook without a conscience, without a culture” (Cayley, 1998, p. 53). This is evi-dent in Pratt’s (2001) analysis of the media coverage surrounding the deportation of Tran TrongNghi Nyguyen. Tran and his mother arrived in Canada in 1993. Unfortunately, just two yearslater, his mother was left disabled due to a workplace injury, leaving Tran as the sole provider andcaretaker for his mother and little sister. In 2001, Tran was convicted of two counts of traffickingin cocaine, and then in 2003 he was convicted of assault with a weapon during a workplace fight(Pratt, 2001, p. 215). The criminal courts determined that Tran was not a threat to society, sothey sentenced him two years less a day in the community for trafficking and gave him a fine forthe assault. Yet, in 2004, Tran received a deportation order on the grounds of ‘serious criminal-ity’. Even though he only had a few minor offences on his criminal record and had never beendeemed to be danger to the public, he had become the public face for the gangster problem inCalgary and a threat to national public safety. Newspaper headlines for the case were as follows:“Accused gangster’s saga ends”, “Gangster finally sent packing”, and “Ex-MP Cries Foul OverAlleged Calgary Gangster’s Deportation Stay” (CBC News, 2010; Moharib, 2010; Richards,2009). The media had a pivotal role in transforming Tran from a local gang member into anorganized threat to national security. This is echoed in the sentiments of Tran’s lawyer, SharmaHarsanyi, who maintains, “…I know, from personal experience that there are many permanentresidents, inadmissible on criminal convictions far more serious than Tran’s, that are allowed tostay in this country. It was clear however, that the deck was stacked against Tran because of this‘persona’.” (Pratt, 2001, p. 275). In the end, the immigration tribunal upheld his deportationorder and the public praised its decision. Here, the media effectively contributed to producingsocial distance between Tran and the public by constructing Tran as a “violent foreign criminal” 16

(p. 275). Absent from the narrative was any mention of his role as the only lifeline for his disabledmother and younger sister, as well as other details of his life that would have elicited a more com-passionate response from the audience. The exaggerated, one-sided picture painted by the mediawas so persuasive that it ultimately rallied public support for Tran’s removal from the country.Tran’s case illustrates the ease with which citizens can be motivated to support punitive measuresif the offender is represented as outside the framework of ordinary people (Cayley, 1998).The Criminal (In)Justice System The logic of social distance and the production of moral indifference can be identifiedwithin the penal system as well. Public knowledge of corrections is most telling of this change asvery few Canadians (7%), know about its nature and functions (Roberts, 2005). Foucault (1979)maps out this change in punishment from public spectacle to being the most covert part of thepenal process. It is now carried out remotely due to a realization that its visible nature horrifiedthe audience by obscuring the line between punisher and punished (Foucault, 1979). Conductingit out of sight contributes to social distance between the wrongdoer and society, as the reducedvisibility of punishment minimizes the potential for invoking the pity it might have in the past.This would explain why today, “people know little about prison life but assume that it is tooeasy” (Roberts, 2005, p. 10). Another source of social distance is produced in the language ofpunishment that conceals many of its realities. In Canada, the body that deals with punishing of-fenders is referred to as ‘Correctional Services’, yet for the past decade rehabilitative ideals havebeen peripheral (Webster & Doob, 2015). The ‘new penology’ views the offender population asinevitable and aspires to manage and confine them rather than rehabilitate and reintegrate them(Feeley & Simon, 1992). Moreover, even when correctional programming is adopted, a closerreading of the practices employed may unveil treatment that is coercive, and even violations ofhuman rights (Moore & Hannah-Moffat, 2005). The euphemistic term of ‘corrections’ deflectsattention from the reality that “imprisonment is a deliberate and measured infliction of painon a person” (Cayley, 1998, p. 7). And so, not only does the secrecy of punishment allow for itto remain visually absent, but also the sanitized vocabulary used by the criminal justice systemallows for its realities to remain mentally distant. Without the knowledge of what takes place,people remain relatively indifferent to the ever-increasing use of incarceration (Roberts, 2005).Sentencing Made Simple Zehr (1999) uses the analogy of a ‘lens’ to describe how the framework used to inter-pret a problem significantly shapes our response to it. He insists, “…the lens we use to examinecrime and justice affects what we include as relevant variables, what we consider their relativeimportance to be, and what we consider proper outcomes” (p. 260). Regrettably, we currentlyview crime and justice predominantly through a retributive lens that is simply interested in at-tributing blame and administering pain rather than reparation and reconciliation (Zehr, 1999).As a consequence, the techniques used to determine punishment are plagued with the politics ofdivision. With the introduction of the Sentencing Reform Act (SRA) in the United States,punishment has been standardized such that, “same acts are met with the same punishments”(Christie, 2000, p. 153). Sentencing scales and tables provide guidelines for factors which shouldbe included and how much weight should be given. The focus is exclusively on the “type ofcrime, amount of loss, the tool (firearm, destructive device, substance), criminal history” (Chris-tie, 2000, p. 157). According to Christie (2000), these instructional manuals simplify the penalprocess to the extent that anyone could do the job. In the Canadian context, mandatory mini-mums fulfill an analogous role. Some crimes invoke pre-set punishments that judges must obligeby, irrespective of the offender’s history of mental illness, abuse, or socio-economic status. Asper Christie (2000), these punishments represent a form of ‘purified justice’ as they erase thecomplexities of individual lives. More specifically, in purified justice social circumstances are seenas obscuring the view and are removed from the picture, thus reducing the equation to strictlyone between the concrete act and the punishment. Moreover, “…by virtue of its simplicity, itbecomes a most useful theory for fast justice and a depersonalization of the offender duringthe penal process” (p. 119). That is to say, the straightforwardness and expediency of purifiedjustice makes standardized punishment a politically attractive option. In the process however, 17

policymakers essentially outlaw the judicial consideration of all the social factors that coincidewith one’s life trajectory. The erosion of judicial discretion, coupled with the depersonalizedsentencing methods, means that the lens is less blurred but the justice that is done is much moreapathetic. The experiences of offenders prior to punishment continue to be alien to the criminaljustice system, which weakens any restraints to resort to state violence (Berger, 2015)The Punished Purified justice also discounts what most of the prisoners have in common; they arelikely to be illiterate, have a mental illness, or belong to a racially oppressed community andbelong to a low socio-economic class (Morris, 1995). Davis (2003) estimates that “there may betwice as many people suffering from mental illness who are in jails and prisons than there are inall psychiatric hospitals in the United States combined” (p. 10). Indeed, those who suffer froma mental disability are among the most socially disadvantaged and in need of assistance. Theirdisability means that they are often left without a voice of their own. Moreover, there is not asmuch public outcry or social movements that speak for them as there are for those who expe-rience racial discrimination and suffer from poverty. As a result of their political silence, issuesthat distinctly affect them at the various stages of the criminal justice system are easy to overlook(Barnes & Oliver, 1993). To begin with, criminal justice personnel are not professionally trained to deal withmental health issues as much as they are with race and sexism (Chaimowitz, 2012). Miller (2015),in his study of police deadly force encounters, observes that police interventions with mentallyill citizens have a high chance of escalating into violence or even death. In court, mens rea orcriminal intent is necessary to be found guilty of a criminal act. However, these legal tools used todetermine guilt are difficult to apply to a group that arguably is not in the correct state of mindto comprehend their actions. Once in prison, prisoners do not have the option of “calling a crisisline, seeing a therapist of choosing on demand, or seeking the support of friends and family”(Moore & Hannah-Moffat, 2005, p. 97). After coming into contact with the criminal justice sys-tem they experience double stigmatization. On top of the stigma of their mental illness, they aregiven a ‘criminal’ label that severely limits their chances of ever finding employment, housing, orsocietal acceptance (Chaimowitz, 2012). Thus, the criminalization of the mentally ill especiallyhighlights how dire the situation is and makes the quest for alternatives all the more necessary.Escaping the Logics of DifferenceBreaking the Binary Socially and morally distancing criminals inhibits potentially better and more hu-mane terrains of justice from being fully realized. It follows that any conceptualization of alter-natives should entail the closing of this distance. Restorative justice approaches are one way to break down the oppositional binarybetween ‘us versus them’. For instance, the goal of the Victim-Offender Reconciliation Program(VORP) is to repair the ruptured relationship between the victim and the offender (Zehr, 1999).Zehr (1999) cites a background of abuse, history of disempowerment, and absence of meaning-ful employment, as some of the factors that contribute to crime, and as a result, he suggests thatcrime can be read as a call for help as, “they [criminals] do harm in part because of harm doneto them” (p. 524). In response, VORPs, while recognizing the importance of holding an individ-ual accountable for their behavior, also view accountability as an opportunity for the perpetratorto change and heal. Accepting that justice for the injured party does not necessarily have to comeat the expense of addressing the needs of the party responsible, restorative justice resolutions aimto satisfy the needs of victims and offenders, doing away with the idea that punishment mustalways be a zero sum game. Moreover, in sentencing circles, another restorative justice practice,members of the community collaborate with the judge, victim, and offender in order to deter-mine the most appropriate response to the offence (Cameron & Cunliffe, 2008). So, as an addedbonus, these types of sanctions bring punishment out of hiding by engaging the community inthe penal process. In addition to this, there is a pressing need to pursue punishment that is more attuned 18

to the realities of prison life. Since policies originate from policymakers who are elected by thepublic, a starting point for accomplishing this would entail a more informed population. As itstands, the plight of prisoners is not at the forefront of the public’s concern and this is in largepart due to the efforts of the news media (Roberts, 2005). There is real opportunity here toinvest in bridging the gap between popular perceptions and the actual realities of Canada’s cor-rectional system. Education is key as a more knowledgeable public is likely to translate to moreinformed decisions about criminal justice at the policy level. Furthermore, Berger (2015) asks,“What would a jurisprudence of sentencing that was induced from the experience of punish-ment rather than deduced from the technocracy of criminal justice look like?” (p. 1). One stepin this direction would involve abandoning the use of mandatory minimums, sentencing scalesand the like. As established earlier, the elements that are absent from these tools are the ones thatneed to be paid special attention. This would enable judges to empathize with those they punish,which would in turn ensure that their decisions are informed by the context of an offender’sbackground (Christie, 2000). Lastly, since “much crime grows out of injury”, it is important to recognize that crim-inal actions do not occur in a social vacuum (Zehr, 1999, p. 524). Earlier we located what mostprisoners have in common: poverty, disadvantage, and deprivation. Prisons represent what Davis(2003) quoting Ruth Gilmore calls, “a geographical solution to socio-economic problems”, adepository for society’s undesirables (p. 14). In other words, we are dealing with those who cameout on the losing end of the genetic and geographic lottery. As a result, investing in alternativemodes of punishments demands serious engagement with societal issues such as addressing in-equality. Now, although there certainly are patterns to suffering, each person is bound to experi-ence suffering to varying degrees and intensity based on their specific life chances. Therefore, wemust check the impulse to combine individuals into a singular category in order to deliver morepersonalized and equitable justice. This could mean adopting a multifaceted approach, whichwould entail providing numerous social institutions, programs and services, such as access toeducation and employment, free drug treatment programs, and mental illness awareness trainingfor criminal justice personnel (Davis, 2003).Thinking Outside the (Prison) Box The issue at hand is multidimensional which is why the solutions offered here notice-ably encompass a vast array of policies and practices. The natural tendency is to brainstorm alone substitute for the prison system. This is a self-defeating stance as the sheer difficulty of sucha task inclines one to abandon the project altogether. Furthermore, it is also misguided becauseas established earlier this problem has many layers to it, with some aspects such as the media’stendency to eliminate the shades of grey when they do not neatly fit with the black and whitenarrative they are trying to present, are issues that lie beyond the justice system. This is why ourresponse cannot just be directed at the prison as an isolated institution. Rather, it must target andcontest other networks of social domination like racism, sexism, and ableism, which hide fromview within institutional structures. Therefore, the focus should be on conceptualizing a constel-lation of alternative strategies and institutions instead of a fixation on discovering one, singlealternative system of punishment that would occupy the same footprint as the prison system(Davis, 2003).Concluding Remarks When punishment is out of sight and out of mind, it is easier to understand how amassive system of incarceration can be built with the approval of the public. Social distancingand the production of moral indifference facilitated by the media and the criminal justice systemhas left the offender with few opportunities to present himself or herself as a normal personin society. These two processes have also obscured how certain people are disproportionatelydrawn from the same communities, distracting society from the issues of racism, classism, andableism that are embedded in the system (Davis, 2003). As a consequence, criminals have beencrafted as a special class of humans unworthy of human rights. For this reason, it is important todeconstruct this long-standing framework of understanding criminals in order to make way formore humane ways of delivering punishment. Closing this distance provides an opportunity for 19

exploring new terrains of justice such as restorative and social justice. REFERENCESBarnes, C., & Oliver, M. (1993). Disability: A sociological phenomenon ignored by sociologists. University of Leeds.Berger, B. (2015). “Sentencing and the Salience of Pain and Hope” in Osgoode Hall Law School. Legal Studies Research Paper Series, York University. 11(4), p. 1-23.Cayley, D. (1998). “Introduction and The Expanding Prison” in The Expanding Prison, Anansi Press, p. 1-11, 15-42, 367-371.CBC News. (2010, March 2). “Accused gangster’s saga ends”. CBC News. Retrieved from http://www.cbc.ca/news/canada/calgary/accused-gangster-s-saga-ends-with deportation-1.940716Chaimowitz, G. (2012). “The Criminalization of People With Mental Illness” in The Can Journal of Psychiatry, Canadian Psychiatric Association, 57(2), p. 1-6.Christie, N. (2000). “Modernity in Decisions” in Crime Control as Industry: Towards Gulags, Western Style, London: Routledge, p. 151-164.Christie, N. (2000). Selections from Crime Control as Industry: Towards Gulags, Western Style, Routledge, p. 13-24.Cunliffe, E., & Cameron, A. (2007). “Writing the circle: Judicially convened sentencing circles and the textual organization of criminal justice” in Canadian Journal of Women and the Law, 19(1), p. 1-35.Davis, A. (2003). “Introduction: Prison Reform or Prison Abolition” in Are Prisons Obsolete, Seven Stories Press, p. 9-21.Doern, B., & Stoney, C. (2014). How Ottawa Spends, 2014-2015: The Harper Government-Good to Go?. McGill-Queen’s Press-MQUP.Feeley, M., & Simon, J. (1992). “The New Penology: Notes on the Emerging Strategy of Corrections and its Implications” in Criminology, Blackwell Publishing,30(4), p. 449-474.Foucault, M. (1979). “The Body of the Condemned” in Discipline and Punish: The Birth of the Prison, Vintage Books, p. 3-31.Gregg, A. (Producer). (2014, October 18). State of Incarceration [Video file]. Retrieved from http://www.cbc.ca/doczone/episodes/new-season-state-of-incarceration.Kappeler, V., & Potter, G. (2005) Mythology of Crime and Criminal Justice (4th ed.). Prospect Heights, IL: Waveland Press.Lacy, N. (1994). “The Traditional Justifications” in State Punishment, p. 16-46.Miller, L. (2015). “Why Cops Kill: The Psychology of Deadly Force Encounters” in Aggression and Violent Behavior, Elsevier Masson, p. 5-30.Minaker, J., & Hogeveen, B. (2009). Youth, Crime, and Society: Issues of Power and Justice. Toronto, ON: Pearson.Moore, D., & Hannah-Moffat, K. (2005). “The Liberal Veil: Revisiting Canadian Penality” in The Punitiveness: Trends, Theories, Perspectives, Willan Publishing, p. 85-100.Moharib, N. (2010, March 3). Gangster finally sent packing. The Sudbury Star. Retrieved from http://www.thesudburystar.com/2010/03/03/gangster-finally-sent-packingMorris, R. (1995). “What’s Wrong With What We’ve Got?” in Penal Abolition: The Practical Choice, Canadian Scholar’s Press, p. 5-30.Pratt, A. (2001). “Immigration Penality and the Crime-Security Nexus: The Case of Tran Trong Nguyen” in Canadian Criminal Justice Policy: A Contemporary Reader, Oxford University Press, p. 273-297.Richards, G. (2009, August 31). Ex-MP cries foul over alleged Calgary gangster’s deportation stay. Calgary Herald. Retrieved from http://www.canada.com/news/ cries+foul+over+alleged+calgary+gangster+deportation+stay/1947795/story.htmlRoberts, J. (2005). “Public Opinion and Corrections: Recent Findings in Canada”. Report 20

prepared for Correctional Service of Canada, University of Ottawa, Canada.Webster, C. M., & Anthony N. D. (2015). “US Punitiveness ‘Canadian style’? Cultural values and Canadian punishment policy” in Punishment and Society, Sage Publications, 17(3), p. 299-321.Zehr, H. (1999). “A Restorative Lens” in Canadian Criminal Justice System: An Issues Based Approach to the Administration of Criminal Justice, p. 521-546. 21

A COMPARATIVE ANALYSIS OF INTERNATIONAL LAW RESPONSES TO GENDERED SEXUAL VIOLENCE: RWANDAN CIVIL WAR AND YUGOSLAV WARSTanzim RashidABSTRACT The collective response of international law institutions to gen-dered sexual violence in the Yugoslav and Rwandan civil wars deservesboth praise and condemnation. While the international legal reaction tothese conflicts introduced progressive reforms surrounding the manner inwhich the law interprets and views gendered sexual violence in the contextof war, it was constructed using a traditional approach that consisted ofsexist language and regressive policies. In comparatively analyzing thesetwo conflicts, an overarching theme develops, where the legal responses tosexual violence were of a dualistic character. Consisting of both progressiveand regressive reforms, this dualism remains consistent through the manysimilarities and differences found between the two conflicts. These similar-ities are: the inclusion of women in reconciliation and judicial proceedings,and the misappropriation of non-consent provisions in the tribunals that fol-lowed the conflicts. By contrast, the differences are: the international law’sdisproportionate response to the sexual violence committed during these conflicts – most notably the disparity in resources al- located to protect victims and prosecute perpetrators – as well as the discrepancy found in the in- ternational law’s response to male on male sexual violence. Finally, it must be noted that potential comparison of these two conflicts is limited, as there is definitional disagreement between the Yugoslav and Rwandan tribunals regarding rape in the context of war.Artwork derived from original artwork created by Maka- renko Andrey found on NounProject.com 22

The responses of international law institutions to the Rwandan civil war and theYugoslav wars are similar in that they integrated female voices into the reconciliation and judi-cial processes that followed the wars. In Rwanda’s case, almost immediately, the “InternationalCriminal Tribunal of Rwanda [ICTR] put in place a national mechanism that ensured womenwould play an active role in post genocide and reconstruction processes” (Mutamba and Iza-biliza, 2005, p. 12). The decision to involve women in the peace process reveals the effort theinternational tribunal undertook to ensure that female voices were not silenced the way theywere in the pre-war era on issues that directly affected them, such as the disproportionate target-ing of women as victims of sexual violence. (p. 12). This effort is a strong example of how theinternational legal response to past omissions of women in the adjudication of sexual violencedemonstrates a progressive and reformed approach to women’s rights in the theatre of war. Thisapproach was equally as forward thinking during the Yugoslav Wars. Following the Yugoslavconflict, women played a pivotal role in the creation and operation of the International CriminalTribunal for the Former Yugoslavia (ICTY) (Van Wely, 2007, p. 7). Like Rwanda, the interna-tional legal response was a reformed one, which openly involved women in the administrationof justice for crimes such as sexual violence. The similarity in how international legal institutionsand actors both progressively and regressively responded to sexual violence during these conflictsis also evident upon further analysis. The non-consent provisions of international law carry an inherent sexist characteriza-tion at their core, as demonstrated in their application during the Yugoslav wars and the Rwan-dan civil war. Evidence from the ICTR and ICTY “presumes that consent is an affirmative de-fence...that includes non-consent as an element of the crime” (Schomburg and Peterson, 2007,p. 123). Both tribunals fail to recognize that war crimes occur in situations that are inherentlycoercive, and rarely occur where consent may be given. Additionally, unlike rape, the crimes ofbodily harm and assault in international law do not include consent as an element of defence(p. 124). Thus, the responses not only fail to recognize the sexist implication of the non-consentprovisions – most notably for women who are the predominant victims of war rape – -- but alsodo not view rape with same level of scrutiny and punity that it does bodily harm and assault, con-sidering that these crimes often intersect with rape. Additionally, for a woman to have to watch acourt entertain the possibility that consent was given by her in the case of a rape accusation, evenafter the woman has clearly said otherwise, is to put up for debate her lived experiences. There-fore international law demonstrates, through its sexist non-consent provisions, that a regressionfrom the aforementioned progress has been made. Furthermore, while the responses to the warsshare similarities that exhibit progressive thinking, they are ultimately held back by regressivepolicies. The similarities shared are, however, met with an equal amount of differences. The international legal response to sexual violence during the 1990s was, relative tothe lackluster response to the Rwandan Civil War, disproportionately dedicated to the YugoslavWars. In a quantitative analysis of trends pertaining to sexual violence prosecution at the ICTR,the “proportion of indictments pertaining to sexual violence fell from 100% in 1997-2000 to35% in 2001-2002” (Nelaeva, 2010, p. 5), while the “ICTY figures remained constant throughthe same period” (p. 5). These figures indicate that international legal institutions in Rwandaresponsible for the prosecution of sexual violence had disproportionately dissipated, comparedto similar proceedings in the former Yugoslavia. Additionally, it was concluded, “the interna-tional response to events in Rwanda had been much slower than had been the case regardingthe conflict in the former Yugoslavia” (p. 6). Thus, there exists a clear bias in prosecution andenforcement between the two international responses, marked by an inconsistency in how theinternational law responds to sexual violence. On the one hand, the international legal responseto the sexual violence in the Yugoslav Wars featured a continuation of enforcement and prose-cution, and on another, the international legal response to the sexual violence in the RwandanCivil War featured a slow disengagement from commitments previously made to address rapecrimes during war. In trying to understand the logic behind this inconsistent enforcement of in-ternational law, Mark Doyle theorized that the lack of attention given to Rwanda was “becausethey were Africans” (p. 3). Doyle’s point reflects a more general trend in international law, where 23

crises and sexual violence in African nations tend to be deprioritized, relative to their Europeancounterparts. This leaves the international law’s regressive response not only inconsistent, butalso racist in its unequal treatment of Yugoslavians over Rwandans. Furthermore, there exists a difference in the way in which the international law ad-dresses sexual violence against men within the Yugoslavian and Rwandan international criminaltribunals. In both the ICTR and the ICTY, there exists a disparity in how each judicial insti-tution responded to sexual violence against men during the wars. In Yugoslavia, the ICTY’sjudgments were seen as regressive with respect to addressing sexual violence against men in thetheatre of war. Amongst an abundance of cases in the ICTY courts regarding the rape of men,the case of Tadic set the landmark precedent. During the proceedings, for the issue regardingthe sexual abuse of Harambasic [victim], the chamber found Tadic guilty of violations of thelaws and customs of war (Askin, 1999, p. 104). Initially, this appears to be a clear indication ofa progressive response from international law in addressing the rape of men in wartime. How-ever, “even though it was not proven that Tadic himself has committed sexual violence againsta man, the chamber held him responsible for the participation in a general campaign of terror,manifested by murder, rape, torture and other forms of violence” (p. 104). Moreover, Tadic wasalso found guilty of persecution, which “included, inter alia, rape and other forms of sexualviolence” (p. 104). The court, knowing and accepting the fact that Tadic had de facto rapedhis victim, refused to acknowledge it de jure as sexual violence, and controversially branded itunder the headers of terror and persecution in an effort to invalidate the reality and presenceof sexual violence against men in the theatre of war. While international law had clearly takena step forward in recognizing the rape of women in the context of war, in the case of the ICTY,the application of said laws to male on male sexual violence was nowhere to be found. This iscontrasted with the ICTR’s consideration of sexual violence against men. The ICTR, in contrast to the ICTY, made progressive judgments regarding sexualviolence against men in the theatre of war. The ICTR “holds the dubious distinction of havingtried the first woman ever to be charged with sexual violence as genocide in an internationalcourt” (Alison, 2007, p. 89). The woman in question, Pauline Nyiramasuhuko (Rwanda’s Min-ister for Family and Women’s Affairs), “is one example among many Hutu women charged asagents of the rape, in the form of genocide, against men” (p. 89). As a result, not only havecourts in Rwanda demonstrated a willingness to prosecute suspects accused of sexual violenceagainst men, but have done so by openly acknowledging it as rape. Furthermore, by addressingrape as genocide and by prosecuting female suspects in the rape of male victims, the courts takean unprecedented progressive step in deconstructing existing gender roles. Finally, by upholdingthe standard that men can be victims of sexual violence and men can be agents of sexual vio-lence, the courts have demonstrated consistency in their application of the law, impartial to anaccused’s characteristics. This shows not only that differences do comparatively exist in the inter-national law’s responses to the two conflicts, but that these inequities can favour both Rwanda,and as previously shown, Yugoslavia. While there can be identifications of both similarities and differences when compara-tively analyzing international legal responses to the Yugoslav and Rwandan wars, there are lim-itations and obstacles to these comparisons as well. Upon comparatively analyzing the interna-tional legal responses to the Yugoslav and Rwandan wars, there emerges a comparative obstaclein the form of a definitional disagreement of rape in the law. This disagreement occurs betweenthe ICTY and the ICTR, and generates stark difficulties when trying to analyze the two courts’responses to the wars’ sexual violence. Revisiting the earlier position taken by the two courtsregarding rape, in which the statutes of the ICTR and ICTY “explicitly include rape as a crimeagainst humanity and, in the case of the ICTR, as a war crime” (Schomburg and Peterson,2007, 122), it becomes evident that the ICTR and ICTY conflict on the classification of rapeunder international law. In one instance it is classified as a crime against humanity, and in theother, as a war crime. Although this initially appears to be a minor detail, the difference in clas-sification has profound implications in trying to comparatively analyze the two courts. Crimesagainst humanity are “collective in nature because their primary target is the civilian populationas a group, irrespective of the individuality of the affected victims” (p. 129). By contrast, war 24

crimes “are not necessarily collective in nature...single acts against individual values may possiblyamount to war crimes” (p. 129). This disparity in definitions toughens any attempt made in com-paratively analyzing the two international tribunals. The prosecution for the Yugoslav situationwas dedicated to interpreting sexual violence in a collective manner, while the prosecution forthe Rwandan situation was dedicated to interpreting sexual violence in an individual manner. Intrying to assess the international law response to sexual violence, specifically prosecution underinternational law, a comparative criminologist’s metric of evaluation shifts between these twodiffering interpretations of rape. Questions surrounding the way in which the law responded tomore intimate and individual instances of sexual violence, independent of the general strategyof war, become difficult to assess in the Yugoslav context. Inquires regarding the systematic na-ture of the Rwandan crimes of sexual violence also become challenging as discerning betweendeliberate transmission of HIV, as well as pre-existing community and interpersonal sexual rela-tionships, proves to be a difficult task. These comparative obstacles serve as a broader indicationof the often futile nature of comparing international tribunals, despite their being overseen bythe same international body. The international legal response to the Yugoslav and Rwandan wars demonstrates ageneral pattern, in which the international response served as both a progressive and regressivemechanism. The responses displayed similarities in the inclusion of females to the reconciliationand judicial proceedings following the conflicts, and the misappropriation of non-consent pro-visions in both tribunals. It also exhibited differences in the international law’s disproportionateresponse to the sexual violence, in favour of the Yugoslavian conflict over the crimes committedin Rwanda, and in the disparity found in the international law’s response to male on male sexualviolence. These similarities and differences however, cannot be understood without first notingthe limitations that exist when making comparisons – most notable of which, is the definitionaldisagreement between the Yugoslav and Rwandan tribunals regarding rape in the context ofwar. Comparative criminology will continue to be a contentious and often controversial field.Measuring discrepancies in international legal responses to sexual violence is a difficult process,and understanding history can be problematic depending on the frame of reference. However,it remains a necessity that criminologists continue to push the boundaries of understanding thecriminal law, and in doing so, provide a better understanding of the criminal justice systems ofthe world. REFERENCESAlison, M. (2007). “Wartime sexual violence: Women’s human rights and questions of masculinity.” Review of International Studies 33. no.1: 89.Askin, D. K. (1999). “Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status.” The American Journal of International Law 93. no.1: 104.Mutamba, J., & Izabiliza, J. (2005). “The Role of Women in Reconciliation and Peacebuilding in Rwanda: Ten Years After the Genocide 1994-2004.” The National Unity and Reconciliation Commission: 12.Nelaeva, G. (2010). “The Impact of Transnational Advocacy Networks on the Prosecution of Wartime Rape and Sexual Violence.” International Social Science Review 85. no.1: 5.Schomburg, W., Peterson., & Ines. (2007). “Genuine Consent to Sexual Violence under International Criminal Law.” The American Journal of International Law 101. no.1: 123.Van Wely, O. H. (2007). “Women’s Participation in the International Criminal Tribunal for the Former Yugoslavia (ICTY): Transnational Justice for Bosnia and Herzegovina.” Women Waging Peace Commission: 7. 25

NOT YOUR CHINA DOLLTHE POTENTIAL CONSEQUENCES OF FORMALIZING THE CULTURAL DEFENCE IN THE CONTEMPORARY CANADIAN CRIMINAL JUSTICE SYSTEM, AND THE NEED FOR AN INTERSECTIONAL APPROACH Emily Yin KotABSTRACT In a world where immi-gration is a hot-button issue andwhere xenophobia is increasinglyon the rise, the need to re-ex-amine existing laws and policiesregarding the newly-arrived inCanada grows in pertinence. Thispaper examines the discussionaround the formalization of thecultural defence, the arguments Artwork derived from original artwork created by Ami, Andrejs Kirma, Hea Poh Linfor and against this, and the po- found on NounProject.comtential consequences thereof. In addition, the author draws from her ownlived experiences as a woman of colour to highlight the dangers the culturaldefence poses for those most marginalized both as it is currently employedin Canadian law, and if formalized. Harms include the legal weight and legit-imacy it may lend to stereotypes and generalizations about entire culturesof peoples, which in turn may result in an entire culture being put on trial byproxy of an individual. The paper pushes for a more intersectional approach,and the allowance of more voices of colour both in discussions of the cul-tural defence and in court when the defence is put in play. In conclusion,this paper finds the potential damage done by a cultural defence regulat-ed poorly, in which stereotypes, generalizations, and Otherization would beperpetuated and seemingly given legal weight, would outweigh any poten-tial benefits. The need for a thoughtful handling of cultural evidence whenintroduced in court is also highlighted. 26

Introduction: The cultural defence is not recognized formally in the Canadian criminal justice sys-tem. It is applied inconsistently, for reasons and in ways that will be further explored later on inthis paper. While there are many conceptions of how a cultural defence could be incorporatedand how it should be constituted, for the purposes of this paper, the cultural defence will be ex-amined purely within the North American context. While there is a definite need for a culturaldefence to be available to certain individuals, as well as to uphold the principle of multicul-turalism that is held so near and dear by Canadians, there are many dangers associated withthe formalization of the cultural defence. This paper will examine the positive and negativeconsequences that would come with such a formalization. This will begin with an examina-tion of what the criminal defence currently consists of in Canada, and the arguments given byproponents of the formalization of the cultural defence. This will be followed by an analysis ofhow the cultural defence may fall short of expectations and may even have an effect oppositeto what is intended. Continuing on, other negative consequences will be explored. This articlewill emphasize how the employment of an intersectional lens will shed light on issues and harmsthat are not immediately apparent, including the allowance of the further oppression of thosealready marginalized in minority communities. This paper will conclude that, if implementedand regulated poorly, the cultural defence could cause harms such as stereotyping, generaliza-tion, Othering. This possibility of harm underlines the need to take great care when introducingcultural evidence into the Canadian courts. While similar to the position advanced by Wong, thisessay will introduce elements that have come up since its publication in 1999, with considerationof laws passed during the Harper era and the surge in Islamophobia over the past years.Context of the Cultural Defence in Canada Canada is a nation with multiculturalism as a key value, through which we claim tocelebrate the differences in the cultural mosaic that constitutes our population. With this comesthe question of conflicting values and norms. Romanucci-Ross (1983) found that the concept ofnormalcy varies from one culture to another. Thus, deviant behaviour can only really be identi-fied from within the society that we are raised in (Romanucci-Ross, 1983, p. 286). This raises is-sues for criminal law. Newcomers to Canada who have not yet been afforded ample opportunityto adjust to the prevailing norms may easily continue to adhere to a different set of norms that,while potentially are acceptable and may even be expected in their home communities, whichmay lead to accidental and unintentional overstepping of Canadian laws. (Choi, 1990, p.80). The question then arises of how the criminal justice system should treat such offend-ers. Canada has no formally recognized cultural defence, which Wong (1999) finds can leadto a conflict between the operation of the law and the values of Canadian society (p. 367).Wong (1999) notes that judicial discretion has allowed for consideration of cultural factors incases where the judge finds it relevant, but whether this is permitted is decided case-by-case anddepends upon the individual judge or prosecutor, leading to an inconsistent application of thecultural defence (p. 377). Per Choi (1990), a cultural defence excuse would allow for defendantsto receive negated or mitigated criminal responsibility for criminal acts that were committed solong as the accused believed that their actions were correct, and that this understanding wasshaped by the cultural heritage or tradition of the minority group to which they belong (p. 86).Argument for the Formalization of the Cultural Defence The inconsistent consideration of cultural factors in courtroom cases is a key drivefor those who are pushing for the formalization of the cultural defence. Proponents of this viewpoint to the consideration of cultural factors in certain cases as a necessary response to a demon-strated gap in the current legal framework. As cultural factors are already being brought into thecourtroom in this manner, the formalization of the cultural defence would serve to standardizeits application through limiting the influence of judicial discretion, as the status quo rests thispower upon the judge. Furthermore, this would hopefully lead to the establishment of guidelineson when the cultural defence would be applicable, what constitutes an expert witness, and theweight cultural factors should carry in the courtroom. This all would culminate in a more con- 27

sistent application of the cultural defence. Moreover, it is argued that the cultural defence would help to resolve the previouslymentioned tension between the value of multiculturalism and the operation of the law. As itstands, the law is constructed and maintained by members of the dominant society, upholdingtheir norms and reinforcing their views. However, this is inconsistent with the idea of culturalpluralism which is central to multiculturalism; respecting the differences of customs and beliefsof minority groups. Additionally, a central tenet of the law is that knowledge of the law can beimputed, and thus ignorance of the law is not a valid excuse. While this is reasonable to apply tothose who grew up within the dominant culture and thus have had the norms and values whichboth shape and are shaped by the law instilled within them from a young age, it seems that thisstandard should not apply to those who were born and raised in a culture that held differentvalues. As Choi (1990) argues, to hold newcomers to this same standard seems to be overly de-manding, and sets them at a disadvantage (p. 86). Fournier (2002) adds that it is also damagingin the sense that it would force members of minority groups to completely assimilate into thenorms and customs of the dominant culture, and accept them as superior and the only correctway, resulting in a loss of identity and the painting of their culture as inferior (p. 5). The culturaldefence is proposed as a way to strike a middle ground between needing members of a society toobey the law and respecting the identities of persons identifying as cultural minorities. The cultural defence addresses the issue of mens rea in a way that builds upon thisprinciple. The mens rea refers to the accused having the intent to do the action that is forbidden,regardless of whether or not they know that it is a forbidden action (Karayanni, 2009). For ex-ample, if a man beats his wife, not knowing that this is considered wrong, so long as he had theintent to hit his wife, that is all that is needed to establish the presence of mens rea, and hold himculpable. The cultural defence excuse would act to reduce the mental culpability of the accusedin circumstances in which they acted in belief that the action was not only legal but morallyrequired of them (Choi, 1990, p. 81).Weaknesses in these Supporting Arguments Despite the assertion that the cultural defence would allow for the preservation of cul-tural pluralism, there is the counterclaim that it would actually work against this goal. Fournier(2002) claims that the emphasis this defence would place upon differences between cultures andthe lines that would be drawn to establish who would and would not be allowed to use this de-fence would lead to greater cultural division, as well as the Othering of certain minority groups(p. 16). Choi (1990) adds that there is also the risk that this will lead to resentment of the minoritygroup by the majority, who will think that their inability to use the cultural defence is unfair (p.81), a consequence which would be less than conducive to the already growing Islamophobiaobserved in Canadian society today. Additionally, there does not appear to be a large gap in the legal procedure that couldbe fixed through the formalization of the cultural defence. The current legal defences availableare adequate, and a fundamental aspect of Canada’s common law system is the trust that isplaced in judges’ discretion. There does not seem to be a compelling argument for why thistrust should be dissolved for these specific instances, for even if judges do not themselves haveknowledge of the culture in question, they are able to appoint expert witnesses. As a parallel,cases involving Battered Woman Syndrome (BWS) are often entrusted to judges who may notbe women and may not have experienced this kind of intimate partner violence. Regardless, it istrusted that with expert witnesses and their testimony, the judges will be given enough informa-tion to make a fair ruling. It seems strange to claim that a judge who is not Chinese, or Muslim,or a member of a minority group would not be able to apply this same approach to also ensurethat justice is carried out in this situation. Cultural factors as a reason to hold an individual less culpable for their actions is prob-lematic as well. The lessening of the mens rea here is patronizing and essentialist, as it makes theassumption that simply because the accused is a member of a minority group, they somehow areless responsible for their actions. Not only does this require as a basis the idea that all membersof this cultural group would have acted the same way under the same circumstances simply 28

because of the environment that they grew up in, but also, as Fournier (2002) adds, this seemsinfantilizing. The accused in this narrative would be painted as lacking the intent to carry out theaction. Rather, they were simply a slave to the norms of their culture and were thus powerlessto act beyond them (p. 18). This further implies that no one ‘acts culturally’ in any way otherthan a highly conscious one, where they are explicitly choosing and intending to follow their ownculture. Finally, to speak from my own lived experience as a woman of colour, and one whohas lived outside of Canada for a large proportion of her life, the view that the introduction ofthe cultural defence will somehow stop the imposition of dominant society’s values upon thosein minority groups is overly simplistic. The law is not the only area where this pressure is felt.This expectation placed upon people of colour and those from minority cultures to conform andassimilate to the majority pervades day-to-day experiences, and underlies most if not all actions.It is unclear how the formalization of the cultural defence could help to lessen this burden.Argument Against the Formalization of the Cultural Defence A great risk that comes along with the formalization of the cultural defence, as touchedupon earlier, is that of essentialization. This is the concern that all individuals who come from aparticular culture will be painted with the same brush, with differences within the culture beingminimized as difference from the dominant culture is emphasized. Cultural essentialism makesthe assumption that culture entirely shapes both identity and behaviour. This is a reductive viewthat results in the loss of nuance, as culture is not the sole defining trait of an individual. Rather,identities are constituted of multiple things that include – but are not solely dependent upon –culture. If the cultural defence were to be formalized, the court may become a place that bothgenerates and perpetuates essentialization in a way that harms the very communities the culturaldefence claims to support. The scrutiny from the criminal justice system could be damaging inand of itself. With expert witnesses testifying what they perceive to be the relevant elements ofthe culture of the accused, and those listening to this testimony being typically members of thedominant society, the accused may be rendered invisible. There is concern that the focus of thecourts will shift towards putting one’s cultural beliefs on trial, especially in combination with theadded element of cultural essentialism. As the accused are perceived as purely the product oftheir culture, there is no need to have a trial for the individual, and there is a subconscious shifttowards judgement of the culture. Ironically, this results in precisely the cultural imperialism thatproponents of the cultural defence hope that it would reduce. The actions being condemned bythe court are viewed as arising wholly out of the culture the accused was shaped by. This cultureis then judged by the dominant one as somehow less moral, or otherwise lacking. This leads to the question of who will have the responsibility of drawing and settingthe boundaries that will inevitably need to be defined clearly for the cultural defence to be effec-tive. As mentioned previously, those in positions of power within the criminal justice system aremost likely members of the dominant culture, and thus their views on these issues could be co-loured by that. An expert witness would be helpful, but there is the further question of how onebecomes an expert in a culture. Of course, being a member of that minority community wouldinfer some knowledge, but there would be no guarantee that this knowledge is anything close tocomprehensive, for within cultures there are subcultures and also oppressed and marginalizedgroups within the culture whose voices may be excluded through the choice of expert witnesses. The case of The People v. Dong Lu Chen illustrates how both of these above fears havealready played out in court. This is just one example of many, and although this is an Americancourt case, the same principles apply in Canada. Here, a white anthropologist was called beforethe court as an expert witness in a culture that was not his own. He painted a picture of a strictbinary between the ideas of “Mainland Chinese” and “American.” When asked by the judge,he made the blanket claim that “normal” Mainland Chinese people, when in the position ofdiscovering an act of adultery, would react in a more volatile and violent fashion than theirAmerican counterparts. He also claimed that Asian-Americans should be viewed as Asian (andthus foreign) first, and American second, asserting that Asian-Americans should not be judged 29

by American standards (Leti,1994, p. 67). And yet, when pressed by the judge, he could not bringforth a single example of a similar situation arising in China. It was clear he had projected hisown American, Orientalist fantasy (Choi, 1999, p. 373) upon this situation, and cast himself inthe role of the normal American – that is, a white, educated man – while constructing not onlyChen but the entire Asian-American community as alien, incapable of assimilating into Ameri-can culture. This shows how the cultural defence will further entrench stereotyped and simplisticperceptions of – and beliefs in – racial and ethnic differences. The cultural defence would only prove even more damaging towards the vulnerablewithin minority groups such as women and children. The argument from tradition will notsuffice if it results in the harm and further oppression of these vulnerable groups. Cultures aredynamic, and changing. Many cultures currently continue the subordination of women, but thatdoes not mean that this should be validated. The case of R. v. Ammar Nouasria examined by Karayanni (2009) demonstrates howsuch voices can be erased. Here, the continuing sexual assault of a Muslim girl was explainedaway through cultural factors, leading to a reduced sentence for the perpetrator despite a com-plete lack of remorse on his part. This results in the sexual assault of a white woman beingsanctioned more harshly than that of a woman of colour, implying that women of colour are lessdeserving of protection than white women. The court in this case even suggested that the victimmay have encouraged or wanted the attention of the accused in a way that would not have beenaccepted had she been white. The cultural defence applied this way results in a perversion ofits purpose and maintains a hierarchy that tolerates and facilitates the continued oppression ofwomen and children.Improvements Upon the Cultural Defence This paper has demonstrated how the cultural defence is a complex and divisive issue,but one that is still worth pursuing, albeit with strict guidelines on how it should be applied tominimize harm both to minority communities at large and vulnerable groups within them. Toaccomplish this, an intersectional approach would be imperative, and the voices of women,sexual minorities, and other marginalized groups should be included in the discussion of whatbeliefs constitute a “culture.” The account presented in court should be a cross-section of theentire community. The debate in Quebec over the wearing of the hijab is an example of how discussionsof cultural issues can be done while prioritizing the voices of women of colour. In Canada,Islamic Law is often viewed as patriarchal and backwards, and the hijab is tied in with this wide-spread belief. However, when this issue was debated, it was emphasized that it would be conde-scending to assume that in all cases, it was not a decision made by the woman herself to wearthe hijab. This assumption failed to consider that there is more than one essentialized Muslimwoman. In reality, it is impossible to generalize the many identities and experiences of Muslimwomen, and there are a plethora of reasons why one may choose to wear the hijab (Karayanni,2009). By allowing the voices of these women to be heard, the law does not take it upon itselfthe task of deciding what is best for women, and also breaks the binary of civilized vs. oppressedthat so often comes into such discussions.Conclusion To conclude, this paper has explored the arguments in favour of the formalizationof the cultural defence in Canada, and looked at how in practice it may fall short or evenundermine the very values it hopes to support. In particular, the issue of mens rea stands outas encapsulating how the cultural defence winds up almost infantilizing members of minoritygroups as somehow not fully comprehending or responsible for their actions. Other argumentsagainst the cultural defence were also explored, with a particular focus on harms associated withthe risk of essentialization of minority groups and cultures. Also important was how the culturaldefence could work to excuse and allow the continuation of the abuse and oppression of alreadyvulnerable women and children within these communities. Finally, the need for an intersectionalapproach is highlighted, using the debate surrounding the hijab in Quebec as an example for 30

how to respect both cultural traditions and the voices of marginalized groups within minoritycommunities. REFERENCESCanada. (1994). Reforming the general part of the Criminal Code: A consultation paper. Ottawa: Dept. of Justice Canada.Choi, C. (1990): Application of a Cultural Defence in Criminal Proceedings. UCLA Pacific Basin Law Journal. 8(1), pp. 80 – pp. 90.Fournier, P. (2002). Ghettoisation of Difference in Canada: Rape by Culture and the Danger of a Cultural Defence in Criminal Law Trials, The. Man. LJ, 29, 81.Karayanni, M. (2009). Adjudicating Culture, Osgoode Hall Law Journal, pp. 371-387. Leti V. (1994): (Mis)Identifying Culture: Asian Women and the Cultural Defence, 17 Harv Women’s L.J., 57. Available at: http://scholarship.law.berkeley.edu/facpubs/267Renteln, A. D. (2005). The Use and Abuse of the Cultural Defense. Canadian Journal of Law and Society 20(1), 47-67. Cambridge University Press. Retrieved November 2, 2016, from Project MUSE database.Romanucci-Ross, L. (1983): On Madness, Deviance and Culture, Massachusetts: Bergin and Garvey, pp. 267 – pp. 283.Wong, C. M. (1999): Good Intentions, Troublesome Applications: The Cultural Defense and Other Uses of Cultural Evidence in Canada. The Criminal Law Quarterly, 42, pp: 367- pp. 396. 31

MANAGING THE MUSLIMIDENTITY IN THE POST 9/11 AGE OF TERRORISM florence chanABSTRACT The catastrophic events of September 11, 2001 have transformedthe discourses surrounding terrorism and who is considered a threat. Basedon assumptions of risk and uncertainty, the heightened anxieties in the ageof terrorism have stigmatized Muslim populations as both internal and ex-ternal threats. This paper analyzes how the Muslim identity is understoodin the American context following the events of 9/11 and how fears areperpetuated through misrepresentations and inaccurate portrayals. It be-gins with an analysis of President Donald Trump’s anti-Islamic rhetoric andfear-mongering tactics during the 2016 electoral campaign. Along with hisproposed mass surveillance and migration bans strategies, this paper exam-ines how the racialization of the Islamic faith with new imposed meaningson bodies subjected to profiling, even though they are not fundamentallya racial category. Threats come to be understood as internal and external,with consequences for those perceived as a threat within the country andfor those travelling across borders. By uncoveringassumptions of threat underlying discriminatorypractices, this article aims todemonstrate how the Mus-lim identity has been shaped byprevalent societal anxietiessurrounding terrorism that areaddressed through securitizedracialization methods of profil-ing, mass surveillance, migra-tion bans, and scrutiny whentravelling across borders. Artwork derived by original artwork created byLuis Prado found on NounProject.com 32

Introduction The 9/11 terrorist attacks on United States (U.S.) soil have changed the social andpolitical climate in dealing with internal and external threats. Different perceptions and thereality of risk have singled out Muslim populations when combined with existing racism. Duringthe 2016 electoral campaign, Donald Trump’s victory highlighted the divided nature of theU.S. and heightened moral panics surrounding the threat of terrorism and the Islamic faith.Race has become a proxy for risk (Bahdi, 2003), and is used in profiling strategies with increasedscrutiny of the Muslim population and anyone who looks like they are Muslim. To combatthreats to security, the Republicans’ aggressive anti-Muslim rhetoric proposed an outright ban onMuslims entering the country. Through implementing bio-political technologies of surveillanceand profiling, the increased scrutiny at airport security has defined mobile bodies as objectsthat require securitization (Adey, 2009). This paper argues how societal anxieties surroundingterrorism shape people’s understanding of the Muslim identity in the post 9/11 era. Methods ofsecuritized racialization including profiling, mass surveillance, migration bans, and controllingmobility across borders are used to address this concern.Mainstreaming of Anti-Islam Rhetoric The prevalent media coverage of the 2016 American election has given rise to themainstreaming of Trump’s anti-Islamic rhetoric, and amplified the moral panics surrounding in-ternal and external threats. The media’s role in constructing social meaning has served as a vehi-cle for inflating Trump’s racist ideologies through fear mongering, while fostering Islamophobiaand xenophobia. Politicians present themselves on a moral high ground and use zero tolerancepolicies to align with the media and law enforcement (Rothe & Muzzati, 2004). Throughout theelection, Trump defined the Muslim population as a threat to American values based on theassumption that Muslims can become radicalized at any point, regardless of citizenship statusor beliefs (Schulson, 2016). This “othering” process implies that these groups do not agree withnational values (Bell, 2006). While the war on terror began with Al Qaeda, it has extended toentire populations and constructed all Muslims as deviant and undesirable for the security ofa nation. Terrorism necessarily entails a double infinity, including catastrophic consequencesand incalculable probability (Aradau & Van Muster, 2007). Accordingly, Trump has proposeddisproportionate responses to combatting these risks with exaggerated concern and hostility sur-rounding terrorism and Muslim groups. For example, the mass surveillance and outright ban ofMuslims in the US (The Associated Press, 2016) perpetuates fear and maintains the legitimacyof the state in addressing public anxiety. By essentializing all Muslims as potential terrorists rath-er than individualizing them, Trump’s rhetoric emphasizes foreigners as inherently dangerous.Throughout his campaign, the “Make America Great Again” slogan was used to emphasize acurrent state of disorder, which aimed to reinstate times of normality. However, labelling anentire population as a security risk is problematic because they face the potential to be classifiedand stripped of their citizenship based on inaccurate assumptions and notions of threat. While Trump’s proposed efforts to combat terrorism attempts to reduce risks, criticshave argued that they will drive more radicalization and terrorist activities. After the electoralvictory, groups have declared Trump’s win as proof of a US war on Islam (Chandran, 2016).Terror networks used selected statements of Trump’s to provide justification for their cause andunite supporters of Al Qaeda and the Islamic State (Chandran, 2016). The language of un-predictable threat and Trump’s rhetoric throughout the election perpetuated hostility againstMuslim populations and terrorism, despite being counterproductive to reducing real threats.The election exposed America’s hostility towards Muslim populations.Racial Profiling and the Racialization of the Islamic Faith To combat threats of terrorism to the state, Trump uses the language of domesticthreat around radical Islam, and suggests that profiling is a well-suited method for combattingthe risk. After 9/11, debates surrounding racial profiling shifted from African Americans andtheir treatment in the criminal justice system towards Muslim populations in the face of terror-ism threats (Bahdi, 2003). Although Islam is not a racial group, it is treated as a fundamental 33

category endowed with certain inborn characteristics that may be a threat to national security.Through this process of racialization, the Muslim identity is constructed as a racial categorywith new imposed racial meanings to bodies subjected to profiling (Schulson, 2016). In an in-terview on CBS’s “Face the Nation,” Trump declared his hate towards the concept of profiling,but held that the state must use common sense rather than political correctness (The AssociatedPress, 2016). Proponents argue that racial profiling is justified because the benefits of profilingoutweigh the social costs and the burdens imposed on individuals (Bahdi, 2003). Proponents alsoconsider racial profiling as an efficient form of law enforcement because it targets individuals atlarge who were responsible for the catastrophic effects of 9/11 (Bahdi, 2003). Thus, it is reason-able for law enforcement to focus their investigation on Muslim communities to identify thosewithin who may be connected to terrorist networks (Bahdi, 2003). These efforts work under theassumption that collective security necessarily entails violations of human rights and civil liber-ties, because these violations are better than risking an unpredictable terrorist threat. Although justice department policies explicitly prohibit profiling on the basis of race,religion, ethnicity, and national origin, critics argue that profiling continues to occur and is un-constitutional because of the unlawful discrimination when used in practice (The AssociatedPress, 2016). Racial profiling tactics operate with unconscious stereotypes of Muslim popula-tions, which constitute unlawful discrimination. Decision makers interpret cases through a lensof stereotypes rather than individual and rational assessment based on facts. These discretionarydecision-making processes are not well documented in cases where it may be discriminatory(Bahdi, 2003). Moreover, Trump’s policies that isolate Muslims are problematic because theyundermine national security while heightening the vulnerability of Muslims and other minori-ty groups. Rather, law enforcement should maintain contacts within the Muslim community,because if individuals are being radicalized, their friends and family will be the first to noticethis activity and provide information to law enforcement agencies (The Associated Press, 2016).By casting a wide net of suspicion on the Muslim population, racial profiling is over-inclusiveand potentially harms those who are innocent. For example, Liban Hussein was wrongly iden-tified as a terrorist in 2001 and his name was added to a list of terrorist entities (Bahdi, 2003).Although Hussein was cleared of any wrongdoing and taken off the list in 2002, his reputationwas damaged and he lost his home and business in the process (Bahdi, 2003). Racial profilingstrategies against terrorism are also under-inclusive because decision makers make judgementssolely based on appearance, religion, and nationality (Bahdi, 2003). Focusing resources and timeon a stereotypical understanding of threat is problematic and misleading because terrorist or-ganizations can easily recruit people who do not fit these profiles. When focusing on identifyingrisks using stereotypes, the criminal justice system and investigative powers may look over thosewho are actually culpable and pose a threat to national security. Addressing Threat Through Mass Surveillance and Migration Bans To combat the threat of terrorism, Trump suggested that the government shouldinvestigate mosques in the U.S. by launching surveillance programs involving the Central Intel-ligence Agency and local law enforcement agencies to spy on Muslims (The Associated Press,2016). These programs will compile databases on the daily routines of Muslims, including wherethey lived, shopped, worked, and prayed (The Associated Press, 2016). Under the law, Muslimswould be required to sign into the database to recognize who is in the country legally, and iden-tify internal threats to security. President Trump blamed Muslims for knowing where terroristsare and not turning them in to authorities (The Associated Press, 2016). With increasing policeand intelligence scrutiny, American-Muslims are hyper-surveilled by the state, private citizens,and through self-surveillance to monitor one’s own behaviour to avoid raising suspicion. Thechanging expectations of privacy and surveillance in Trump’s political narratives resemble thestop and search practices in the United Kingdom (Parmar, 2011). In the United Kingdom, theincreased discretionary powers of law enforcement have resulted in a majority of people feelinglike they had been stopped primarily because of their ethnic background (Parmar, 2011). Theseextended powers to address internal threats were counterproductive because it did not reducereal threats. Instead, it perpetuated hostility towards and from South-Asian and visible minority 34

groups (Parmar, 2011). The discourses of terrorism have shifted towards the notion of internalthreats that necessarily entail the increased powers of law enforcement agencies and govern-ments, to profile and target certain populations using mass surveillance. To address external threats and combat terrorism, Trump suggested a temporary banon all foreign Muslims entering the country. He alludes to the horrendous results of Syrian refu-gees in Europe, and the corresponding increasing crime rate to incite fear among the public andjustify the ban (The Associated Press, 2016). These state efforts and human rights violations areneutralized and redefined as self-defence for the state. One of the existing profiling technologiesis the Suspect Detection System (SDS). The SDS attempts to discover passenger emotions whenflying into countries by measuring facial and physiological responses to questions (Adey, 2009).The SDS is used to identify potential terrorists who may enter countries with the intention ofterrorism upon entry. Migration becomes a threat to the hegemony of the state and is considereda security problem largely because of a political narrative that targets a particular group (Bigo,2002). In the face of terrorism, securitized racialization and migration become intertwined be-cause the state must maintain control within its geographical borders to remain legitimate.Traveling Across Borders The events of 9/11 have heightened a culture of suspicion and stigma for Muslimswho are traveling. The public and politicians turned their attention to airport security after the9/11 hijackers used commercial airliners as weapons of mass destruction. Since the hijackerswere alleged Muslims or Arabs, debates on whether these groups should be subjected to higherscrutiny at airports have arisen. When moving across borders, the mobile body and face hasbecome a site of observation, calculation, and predication (Adey, 2009). Biopolitical technologiesused in airport security measure body surfaces and govern the mobile body as it crosses spatialand territorial barriers (Adey, 2009). To prevent external threats, the logic of preemption is em-bedded in these securitization practices through the surveillance of exterior surfaces where po-tential hostile intentions are read and scrutinized (Adey, 2009). The key to bio-political governingis managing the unease and anxiety from the uncertainty of bodies passing through borders(Adey, 2009). Managers of unease frame notions of risk and deal with anxieties, and must chooseto address uncertainty through identification using bio-political technologies. When Muslim travellers are targeted, they are profiled disproportionately and ac-counted for on the basis of behavioural potentialities and perceived threat rather than real threatbased on actual behaviour. For example, Nafees Syed, a Muslim lawyer from New York who of-ten travels for business, has testified that she gets pulled aside for additional security checks at air-ports more often than not because of non-random selection (Luongo, 2016). Her religious faithrequires her to cover her head in public with a hijab. The Transport Security Administrationdefends these behaviours under the justification that extra scrutiny is necessary because scannershave difficulty seeing clear images under some types of clothing (Luongo, 2016). Syed’s Mus-lim friends also shared similar repeated experiences of scrutiny, which pushed them to removetheir religious and cultural clothing to mitigate potential discrimination (Luongo, 2016). More-over, people who have Middle Eastern or foreign names may be compared to no-fly lists (Luon-go, 2016) because of the stigma attached to foreign bodies and the culture of suspicion. Evenwithin state borders, American Muslims are labeled as potential threats that must be addressedthrough securitized racialization in profiling tactics. People who are not Muslim but appear soare subjected to similar types of scrutiny, such as Sikh American men who cover their heads witha turban for religious purposes. In the United Kingdom, intra-ethnic hostility emerged fromnon-Muslim Asians, particularly Sikh men who were stopped and searched because the policemisidentified them as Muslims (Palmer, 2011). These groups are often confused for Muslims andmisrecognized based on physical traits. They experience unwanted attention from gate agentsand security officials at airports due to their appearance and visible conceptions of what a threatlooks like.Conclusion Following the events of 9/11, Muslim populations face securitized racialization due 35

to moral panics that have encouraged the use of racial profiling, mass surveillance, migrationbans, and bio-political technologies while moving across borders. Donald Trump’s 2016 electioncampaign has exposed the climate of divisiveness and hostility in the U.S., and the prevalenceof Islamophobia. Politicians have perpetuated a narrative of fear and a moral panic about ter-rorism among the public. Through racialized discourses of terrorism, racial profiling of Muslimpopulations has been justified in the face of unpredictable threat. Racialized surveillance andprofiling strategies produce illusions of security while heightening a sense of vulnerability andhostility of Muslim populations. As debates shift between internal and external threats, Muslimsface greater scrutiny and discrimination at airports, where their bodies function as their passport.Distinctions between perceived versus real risk, and Muslim versus one who looks Muslim areblurred in these processes. The logic of security permeates aspects of criminality and social lifewith racialized implications. Rather than combatting real threats to security, securitized racial-ization tactics isolate Muslim populations and depict them as a threat based on potential crimi-nality. REFERENCESAdey, P. (2009). “Facing airport security: affect, biopolitics, and the preemptive securitisation of the mobile body.” Environment and Planning D: Society and Space, 27, 274-295.Aradau, C., & Van Munster, R. (2007). “Governing Terrorism Through Risk: Taking Precautions, (un)Knowing the Future.” European Journal of International Relations, 13(1), 89-115.Bahdi, R. (2003). “No Exit: Racial Profiling and Canada’s War Against Terrorism.” Osgood Hall Law Journal, 41(2/3), 293-317.Bell, C. (2006). “Surveillance Strategies and Populations at Risk: Biopolitical Governance in Canada’s National Security Policy.” Security Dialogue, 37(2), 147-165.Bigo, D. (2002). “Security and Immigration: Toward a critique of the governmentality of unease.” Alternatives: Global, Local, Political, 27(1), 1-19.Chandran, N. (2016, November 10). Trump’s victory could intensify global Muslim extremism, terror experts warn. CNBC. Retrieved from http://www.cnbc.com/2016/11/10/ trumps- victory-could-intensify-global-muslim-extremism-terror-experts-warn.htmlLuongo, M. (2016, November 7). Traveling While Muslim Complicates Air Travel. The New York Times. Retrieved from http://www.nytimes.com/2016/11/08/business/travel ing-while-muslim-complicates-air-travel.htmlParmar, A. (2011). “Stop and Search in London: Counter-terrorist or Counter-productive?” Policing and Society, 21(4), 369-382.Rothe, D, & Muzzatti, S. (2004). “Enemies Everywhere: Terrorism, Moral Panic, and US Civil Society.” Critical Criminology, 12, 327-350.Schulson, M. (2016, November 7). The Islamaphobia Election: How “Muslim” Became A Racial Identity. Religion Dispatches. Retrieved from http://religiondispatch es.org/muslim-racialization/The Associated Press. (2016, June 20). Donald Trump says U.S. needs to consider profiling Muslims to stop attacks. CBC News. Retrieved from http://www.cbc.ca/news/world/trump-racial-profiling-muslims-1.3642599 36

DIVERTING YOUTHAn Analysis of the Efficacy, Strengths andWeaknesses of Diversion Programs in CanadaShrikha Khemani ABSTRACT This paper argues that the adoption of a diversion approach in Canada has been largely ineffective ow- ing to the potential and propensity for net-widening in the operation of diversion programs. In tracing the evolution of diversion in Canada, discrepancies which have arisen between the stated objectives and operational realities of such programs are identified and explored. The ben- efits accrued by participants are considered in light of the heavy reliance on discretionary powers exercisedArtwork derived from original artwork createdby the police, community service organizations, andby Stephen Plaster and Yeoul Kwan found on agents of the state. Owing to the variance inotherNounProject.comadministration of programs across jurisdictions, the best practices for di-version are not universally or uniformly employed. Many offenders are pre-sented with false or misleading information so that they come to regardenrolment in a diversion program as a failsafe alternative to prison, even inthose cases in which it is only prescribed as a voluntary option. This essayundertakes to analyze the (ab)use of discretion evident in multiple stagesand facets of the diversion process. Diverted offenders are more likely to becaught, charged, and convicted – and potentially imprisoned – for engagingin delinquent behaviour than those who do not receive diversion sentences.This holds true regardless of whether offenders are diverted by choice, co-ercion, or legal ruling. Contrary to their avowed purpose, diversion programsoften serve to criminalize diverted youth, bringing offenders under formalstate control when they might otherwise have been dealt with informally– in effect ‘widening the net’ to catch smaller fish. Various statistics andstudies are consulted in support of the central argument. It is ultimatelyconcluded that diversion programs in Canada seem destined to accomplishprecisely what they were designed to avoid – the criminalization of youngoffenders. 37

A vast number of diversion programs examined under a scholarly lens have beenexcoriated as failing to realise a principal objective of diverting young offenders out of courtsand custody (Maclure et al. 2003; Sprott et al., 2004; Doob and Chan, 1982). This paper arguesthat the adoption of a diversion approach in Canada has been largely ineffective owing to thepotential and propensity for net-widening in the operation of such programs. Attendant corol-laries such as the intrusive surveillance, inadvertent labelling, and criminalisation of participantsare also considered. While it cannot be denied that diversion provides a preferable alternative toharsher sentencing or imprisonment, several weaknesses of the diversion approach become vis-ible upon close analysis. To begin with, diversion programs often serve to bring young offendersunder formal state control when they might otherwise have been dealt with informally – thuswidening the net. A number of studies have been published over the years documenting thistrend, and the results are conclusive and compelling. The benefits accrued by young offendersenlisted in diversion programs must be considered in light of the heavy reliance on discretionarypowers exercised by the police, community service organisations, and other agents of the state.This essay also undertakes to analyse the (ab)use of discretion evident in multiple stages andfacets of the diversion process, such as the practice of imparting selective information to divertedyouth with regard to program operation and alternatives. Many offenders are presented withfalse or misleading information so that they come to regard enrolment in a diversion programas a failsafe alternative to prison, even in those cases in which it is only prescribed as a volun-tary option (Prichard, 2010). Diverted youth are made to suffer the consequences of intrusivestate control, as their actions are closely monitored and observed during a prolonged interactionwith the justice system. They are also placed at a risk of criminal labelling and imprisonmentfor the commission of repeat or minor offences. In effect, diverted offenders are more likely tobe caught, charged, and convicted – and potentially imprisoned – for engaging in delinquentbehaviour than those who are not enlisted in diversion programs. This holds true regardless ofwhether offenders are diverted by choice, coercion, or legal ruling. The formal use of diversion as a tool for social control has gained increasing pop-ularity in the last four decades. By the latter half of the 1970s, there were over 100 diversionprograms in operation across Canada (Solicitor General, 1977), and the adoption of diversionand extrajudicial measures became a formal aim of legislation relating to young offenders withthe passage of the Young Offender’s Act (YOA). Section 3(1)(d) of the YOA notes that, “Whereit is not inconsistent with the protection of society, taking no measures or taking measures otherthan judicial proceedings under this Act should be considered for dealing with young personswho have committed offences”. According to Krisberg (2006), the introduction of the YOA,along with legislation enacted in a similar vein in the U.S, marked the beginning of a reforma-tion in juvenile justice by which “a benign Children’s Court” always acting “in the best interestsof the child was replaced with new attention to the legal rights of minors” (p. 7). Although thelaws had by this time evolved to protect the rights of young offenders processed in the courts,it must be noted that no similarly stringent safeguards were introduced for diverted youth. Infact, the report of the 1977 conference on diversion devoted an entire section to the “The Dan-gers of Diversion”, which emphasised the need to rectify this oversight through the passage ofnew laws under the YOA (Solicitor General, 1977, p. 11). These recommendations were largelyignored. As the use of diversion programs expanded, questions began to arise with regard tothe legal rights of young offenders enlisted in such programs. Many of these questions remainunanswered to this day, over a decade after the introduction of the Youth Criminal Justice Act ofCanada (YCJA) (2003). While acknowledging some of the “humane, compassionate and helpful” intentionsand results of diversion programs, Cohen (1979) noted that “Most… offenders would probablyprefer this new variety to the stark option of prison. But this argument is only valid if the alterna-tives are real ones. The net-thinning and mesh-widening effects indicate that the notion of alter-natives can be misleading and mystifying” (p. 350). This is particularly relevant when consideringa Toronto Police Service-Youth Referral Program (TPS-YRP) intended to facilitate pre-chargeyoung offender diversion in Ontario, launched in partnership with Operation Springboard in2002. Operation Springboard is a community agency that operates various programs directed at 38

youth aged 12-17 who have come into conflict with the law. The TPS program was designed inkeeping with the spirit of the YCJA released shortly thereafter. The YCJA reserves harsh sanc-tions such as incarceration for serious offences, and strongly advocates a rehabilitative strategyaddressing the criminogenic needs of youth by recommending the use of non-criminal sanctionsand diversion wherever possible. Insofar as it was set up to reduce the number of minor offenc-es – and offenders – that ended up in the court system, the aim of the TPS-YRP was clear; theterms of its operation, however, remained ambiguous to the concerned parties. Youths were referred by police to community service organisation Operation Spring-board, and tasked with arranging an interview with the program staff. A meeting would thentake place in an office which was located in a small church in Scarborough.1 If the young personin question did not take responsibility for an offence or failed to accept the sanctions of theprogram, he or she was told that the case would be referred back to the police for the originalcharges to be laid (Sprott et al., 2004). However, the nature and severity of the charges and theimplications of such an outcome were not discussed (Sprott et al., 2004). While the voluntarynature of the program was communicated at two stages then – at the time of referral by police,and later during the intake interview by Operation Springboard staff – it would appear that theterms of this communication were indeed “misleading and mystifying” (Cohen, 1979, p. 350) tothe young offenders concerned. The majority of young offenders (83%) interviewed about theirexperiences with the Youth Referral Program thought that if they had refused to participate,the police would have taken them to court, while 9% thought that they would have been takendirectly to jail without even a court hearing. The rest were unsure in their responses (Sprott et al.,2004). The experiences of young offenders in the program – even the positive experiences – mustbe considered in light of these findings. The Department of Justice report concluded that while“most youths in the YRP… were content with how things had turned out [i]t is likely that partof the reason for this is that they had expected something much worse” (Sprott et al., 2004). These results mirror findings in diversion programs across Canada, and indeed acrossthe world (Maclure et al., 2003; Prichard, 2010). Research suggests that diversion is often usedin the case of offenders deemed troubled or ‘problematic’ by the police (Marinos and Innocente,2008). Females are also more likely to be diverted than males. In an examination of over fif-ty California-based diversion programs, Alder and Polk (2001) concluded that proportionatelymore females were referred for ‘delinquent tendencies’ or status offences than their male coun-terparts. While there is some evidence of sexism in juvenile diversion, gender cannot be identi-fied as a salient or solitary determining factor in influencing case outcomes. In their analysis ofthe activities and operation of the Youth Bureau in Southern Ontario, Doob and Chan (1982)found that attitude of an offender and previous contacts with the police were the most import-ant variables influencing police decisions to take youth to court. Marinos and Innocente (2008)reported similar findings upon conducting a series of surveys and in-depth interviews with policeofficers from different jurisdictions in Ontario. Reflecting on the relatively heavy weight placedon prior police contact of any kind (including past extrajudicial measures or findings of guilt)and the subsequent effect on police attitudes towards diverting youth for minor offences like mis-chief and shoplifting, the authors suggest that such attitudes are not in keeping with the spirit ofthe YCJA (Marinos & Innocente, 2008). As mentioned earlier, the YCJA places an emphasis onrehabilitation and proportionality in sentencing, providing specific guidance to police about theappropriateness of extrajudicial measures – without precluding the repeat use of these measuresin cases of repeat offending. Although these studies were published nearly three decades apart,it appears that there has been no significant transformation in police attitudes towards youngoffenders over the years. The considerable leeway granted to police officers in exercising discretionary powersfor diverting young offenders is a cause for concern. Although it has been noted in a reportcommissioned by the Ontario Ministry of Child and Youth Services that “diversion is being used1 The significance of the church as a meeting place is beyond the purview of this essay – given the limited nature of available research,there is little use in speculating that the reform process was significantly informed by any overtly religious agenda. It is worth notinghowever that there exists an established history of faith-based intervention on the part of the state with regard to the administration ofcriminal justice in Canada, with documented instances of coercive and forcible attempts to rehabilitate offenders through religion (seefor instance Moore and Hannah-Moffat, 2005). 39

more extensively than it had been under the YOA, and Ontario is at the forefront of the changein police discretionary practices” (Caputo and Vallée, 2007), questions abound as to the natureand extent of discretion used in diversion. A significant finding of the Department of Justicereport on the TPS-YRP pilot project was that a sizeable majority of police officers reported thatmost of the cases they referred to the program would likely have otherwise received a caution,while the remaining 13% suggested that their referrals would have ended up in court (Sprott etal., 2004). Considering that the voluntary nature of the diversion program was not effectivelycommunicated at the level of police contact, however, it came to seem less like an option andmore like a highly desirable alternative – to court, and eventually jail – in the eyes of divertedoffenders (Sprott et al., 2004). Police oversight in this regard manifested in a net-widening effect,bringing young people into the fold of the system when they might otherwise have escaped. Maclure et al. (2003) note that in Canada, “those responsible for administering youthjustice – ministry bureaucrats, police, youth court officials, probation officers, and communityworkers – have ample latitude to interpret policy. The practice of diversion… has been espe-cially amenable to discretionary interpretations and decision-making” (p. 144). The same studyalso reveals a considerable provincial variation in program techniques. Furthermore, the natureof intervention in diversion programs is often quite intrusive, perhaps even unjustifiably so. Inthe TPS-YRP, for instance, ‘sanctions’ were administered as a form of punishment, generallyrelating in some way to the offence committed – as in the case of anti-shoplifting workshopsfor shoplifters – while additional measures known as ‘interventions’ were undertaken to assista young person with non-offence related issues. These covered a wide array of behaviouraland non-criminal issues dealt with through techniques such as anger management and therapy(Sprott et al., 2004). Many diversion programs in the country and elsewhere tend to employsimilar methods of operation. A young offender is only considered successfully ‘diverted’ whenhe or she meets the standards for acceptable behaviour laid out by a psychologist, program staffmember, or some other agent acting on behalf of the state. In one study, Elliott et al. (1978) found that intervention received in an informal set-ting through diversion, as with intervention in a traditional juvenile justice setting, resulted inan increase in perceived labelling and self-reported delinquency among youth. In such casesit would seem that diversion, which according to Frazer and Cochran (1986) “has its base inlabelling theory” (p. 158), is destined to accomplish precisely what it was allegedly designed toavoid – in labelling young offenders, it criminalises them. Labelling theory posits that peoplebegin to self-identify with labels applied to them, so that someone who is perceived as ‘criminal’or ‘deviant’ by society comes to perceive themselves as such and act in accordance with the label,adopting deviant behaviour. The individual thus ultimately abandons a legitimate self-conceptand internalises a criminal label (Tannenbaum, 1938).Research has shown that negative labelscan in fact contribute to delinquent behaviour (Bernburg et al., 2006). Klein (1979) notes in hiscriticism of the “diversion to services” model that juvenile offenders are simply diverted fromone system – of formal courts or custody – to another, represented by community service agen-cies. As a consequence of this, many offenders seem to be trading the label ‘bad’, for the label‘sick’, regularly applied by counselling-oriented practitioners at community agencies. Research examining the connection between diversion and recidivism rates is incon-clusive; while some studies indicate that diversion reduces recidivism (Wilson & Hoge, 2013),others have found that it can in fact have a reverse effect, or no effect whatsoever (Elliot et al.,1978; Forgays, 2008). In spite of these discrepancies, the general consensus seems to be thatdiversion does in fact lower recidivism when compared to more formal court-imposed and cus-todial sanctions (Elliot et al., 1978; Forgays, 2008). The reality, however, is neither so stark norso simple, as revealed by Klein (1979) in a cross-section study of diversion programs in the Unit-ed States. Insofar as diverted offenders had lower offending rates than non-diverted offenders,Klein noted, “This is a ‘success statement’ for diversion” (p. 149). However, self-report indicesrevealed no real differences in recidivism as offenders reported they had each committed aboutthe same amount of further delinquency overall, and “the nonreferred, released offenders faredsignificantly better than both other groups, [indicating that] diversion without referral was moresuccessful than diversion with referral” (p. 151). As Klein’s findings illustrate, it is important to 40

consider that statistics often present a one-dimensional picture, failing to adequately capturethe operational realities of diversion programs. A nuanced analysis will never rest exclusivelyon statistical data, as such data cannot be relied upon to construct a wholly accurate assessmentof program strengths and weaknesses. Moreover, it must be taken into account that the nature,duration, and intrusive potential of diversion allows for closer scrutiny on the part of agents ofthe state and community services, leading to the increased policing of participants. As a result,diverted offenders are more likely to be caught for engaging in delinquent behaviour than thosewho cannot be interested, coerced, or required to participate in such programs (Forgays, 2008). In theory, diversion in its purest form might also imply that no sanction or treatment(i.e., no intervention in any form) is imposed on a juvenile offender. Frazier and Cochran (1976)observe that “This position derives directly from works in the labelling tradition. The reason-ing is that… because official attention may encourage youth to become more rather than lessoriented to problem behaviour, many offenders are best left unattended” (Frazier and Cochran,p. 159). In practice, however, in Canada as in most other countries around the world, diversionservices are often entrusted to community and quasi-official organisations that determine thenature and duration of official intervention in the lives of affected youth. In their analysis ofdiversion and criminal labelling, Frazier and Cochran (1986) found that the official interventionprocess is as intrusive for youth diverted out of the criminal justice system as it is for those whoare not diverted. Although their study was conducted in an American context, the relevance ofthe findings can be extended to consider diversion programs in operation across the border. ASolicitor General’s Committee report on proposals for new legislation to replace the Juvenile De-linquents Act published as far back as 1975 noted a dangerous tendency on the part of the stateto overstep its bounds in adopting the role and “traditional concept of parens patriae” (wherebythe State acts as a protective parent), even while administering liberal sentences or divertingyoung offenders out of the criminal justice system. It read, “A growing awareness has developedthat in the absence of sufficient substantive and procedural safeguards the juvenile court may infact be unjustly infringing a young person’s liberty… It is increasingly recognised that limitationsshould be placed on the nature and extent of such intervention” (Solicitor General, 1975). It maybe surmised from a close analysis of the methodologies employed by recent programs such as theaforementioned TPS-YRP, however, that satisfactory safeguards and limitations have not beenintroduced in order to minimise the intrusiveness of diversion. In those cases in which diversion in fact serves its purpose as an alternative to sen-tencing, the benefits of escaping formal state control or incarceration are numerous. Divertedyouth are able to avoid exposure to criminal elements and other undesirable influences in prisonand receive treatment or punishment in an informal setting. A successful diversion program orstrategy could ensure a positive outcome for those who have been enlisted by choice, by law, orby law enforcement. While certain variables – such as experienced youth caseworkers – havebeen known to substantially increase the effectiveness of diversion (Feldman et al, 1983), thevariance of diversion practices, dependent in large part on the discretionary powers wieldedand exercised by police, caseworkers, and agents of the state can prevent some young offendersfrom benefitting fully from diversion programs in Canada. However, when the right practices areidentified and employed by the right practitioners, there is a great chance for success. Dryfoos(1990) for instance found that the provision of intensive and comprehensive services and indi-vidualised attention can reduce recidivism in diverted youth and lead to successful rehabilitationinto the community and correction of offender behaviour. In a comprehensive meta-analysis ofdiversion evaluation studies, including three conducted in a Canadian context, Wilson and Hoge(2013) also reported findings that diversion appears to be more effective in reducing recidivismthan conventional judicial interventions. Other studies have yielded similar results, and there areseveral documented advantages to this approach (Frazier and Cochran, 1986; Forgays, 2008).The benefits of introducing positive influences – in the form of guidance figures, structure, andactivities – into the lives of youth cannot be easily dismissed. Many young offenders in diver-sion programs have reported positive experiences, regardless of whether their participation wasmandated, voluntary, or coerced (Forgays, 2008; Sprott et al., 2004). It must be noted howeverthat most diversion programs subject to critical examination do not seem to achieve their aim of 41

diverting youth out of courts and custody. The intrusive nature and overreach of diversion as it extends to the correction ofnoncriminal conduct and the unsystematic enlistment of young offenders who might otherwisehave escaped state control cannot be easily justified or overlooked. Across Canada, a lack ofclarity and uniformity exists in the implementation of diversion programs, resulting in a man-ifest infringement of the rights of diverted youth. It would appear that in order to capitaliseon the strengths of diversion, the focus must be narrowed to cater to the criminogenic needsof young offenders who require (by legal ruling) or desire (of their own volition) the benefit ofextra-judicial interventions in the form of diversion services and programs. In those cases inwhich diversion serves an intended purpose as an alternative to sentencing, the prospective ben-efits become most evident. Regrettably, many diversion programs in Canada seem destined toaccomplish precisely what they were designed to avoid – the criminalisation of young offenders.The heightened visibility of diverted youth means that they are more likely to get caught andpunished for engaging in delinquent behaviour than those have not been diverted. Diversionalso imposes prolonged restrictions on liberty and unduly strict conditions for release, impellingoffenders to adopt a delinquent self-identity or aggressive and aggravated misconduct. Divertedyouth are ultimately victimised and vilified by an officious state authority through perceivedlabelling. If release from official state control through diversion is contingent on the correctionof noncriminal conduct or behaviour, with sanctions and interventions administered accordingto arbitrary standards rather than on the basis of an offence, then the efficacy, legality, use andusefulness of diversion becomes questionable. As it stands, the diversion process would have toundergo a material transformation in order to be truly effective in a Canadian context. The vari-ance in the administration of such programs across jurisdictions means that the best practices fordiversion are not universally or uniformly employed, and they are not always harnessed to theirfull potential in order to benefit participants. The diversion approach in its present form allowsyoung offenders to become victims of an intrusive and interventionist state authority. Whilethere are many advantages to the use of this approach in the administration of juvenile justice,a closer examination of the discrepancies which have arisen between the stated objectives andoperational realities of diversion in Canada evinces a flawed and failing system. REFERENCESAlder, C., & Polk, K. (1982). Diversion and hidden sexism. Australian and New Zealand Journal of Criminology, 15(2), 100-108.Caputo, T., & Vallée, M. (2008). Roots of youth violence review: A comparative analysis of youth justice approaches. Prepared for the Government of Ontario, Cabinet Office.Bernburg, Jon Gunnar, Marvin D. Krohn and Craig J. Rivera. (2006). Official Labeling, Criminal Embeddedness and Subsequent Delinquency: A Longitudinal Test of Labeling Theory. Journal of Research in Crime and Delinquency 43(1): 67-88.Cohen, S. (1979). The punitive city: Notes on the dispersion of social control. Contemporary Crises, 3, 339-363.Doob, A. N., & Chan, J. B. L. (1982). Factors affecting police decisions to take juveniles to court. Canadian Journal of Criminology, 24(1), 25-37.Dryfoos, J. D. (1990) Adolescents at risk: Prevalence and prevention. Oxford Press, New York.Elliott, D. S., Dunford, F. W., & Knowles, B. A. (1978). “Diversion-a study of alternative processing: an overview of initial study findings.” Presented at the meetings of the American Psychological Association.Forgays, D. K. (2008). Three years of teen court offender outcomes. Adolescence, 43(171).Frazier, C. E., & Cochran, J. K. (1986). Official intervention, diversion from the juvenile justice system, and dynamics of human services work: Effects of a reform goal based on labeling theory. Crime and Delinquency, 32, 157-176.Klein, M. (1979). Deinstitutionalization and diversion of juvenile offenders: A litany of impediments. In Crime and Justice, Eds. N. Morris and M. Tonry. Chicago: University of 42

Chicago Press. 145-201.Krisberg, B. (2006). Rediscovering the juvenile justice ideal in the United States. In John Muncie and Barry Goldson (Eds), Comparative Youth Justice (pp.6-18). London: Sage Publications.Maclure, R., Campbell, K., & Dufresne, M. (2003). Young offender diversion in Canada: tensions and contradictions of social policy appropriation. Policy Studies, 24(2/3).Moore, D., & Hannah-Moffat, K. (2005). The liberal veil: Revisiting Canadian penality. In The New Punitiveness. C.D Dwyer (Eds.) (85-100). Marinos, V., & Innocente, N. (2008). Factors influencing police attitudes towards extrajudicial measures under the Youth Criminal Justice Act. Canadian Journal of Criminology and Criminal Justice, 50(4), 471-489.Prichard, J. (2010) Net-widening and the diversion of young people from court: A longitudinal analysis with implications for restorative justice. Australian & New Zealand Journal of Criminology, 43(1), 112-129.Solicitor General of Canada. (1975). Young persons in conflict with the law: A report of the Solicitor General`s Committee on proposals for new legislation to replace the Juvenile Delinquents Act. Queen`s Printer: Ottawa.Solicitor General of Canada. (1977). Diversion: A Canadian concept and practice: A report on the First National Conference on diversion October 23-26, 1977, Quebec City. Solicitor General: Ottawa.Sprott, J. B., Doob, A. N., & Greene, C. (2004). An examination of the Youth Referral Program. Centre of Criminiology, University of Toronto.Sytsma, V. (2015, November). Girls on crime. Lecture conducted in University of Toronto, Toronto, ON.Tannenbaum, F. (1938). Crime and the community. Michigan, MI: University of Michigan. Digitized, Jul 28, 2009.Wilson, H. A., Hoge, R. D. (2013). The effect of youth diversion programs on recidivism: A meta-analytic review. Criminal Justice and Behavior, 40(5), 497-518. 43

JUSTICE INITIATIVESAND BLACK CANADIANS:MENDING THE GAP Oluwapelumi OlatunbosunABSTRACT This paper explores the absence of criminal justice initiatives in re-sponse to the overrepresentation of Black Canadians in the criminal justicesystem. First, this study briefly examines current provisions offered by Cor-rectional Service Canada for Black Canadians. Several theories are then of-fered to explain the shortcomings of the justice system in meeting the needsof its Black inmates. This paper proceeds by acknowledging the vast diver-sity among Black Canadians and, consequently, the challenge of respond-ing to the ethno-cultural needs of each group within the justice system.Next, I explain the infancy of Black initiatives on the basis of governmentaccountability towards Black Canadians. The lack of political activism as aretardant to Black provisions is also discussed. Last, the financial costs ofcreating programs similar to indigenous provisions are explicated. This paperconcludes by considering solutions to the absence of legislative provisionsand offers steps that Correctional Service Canada can take to achieve racialequality. Artwork derived from original artwork created by Romual- das Jurgaitis found on NounProject.com 44

Introduction Criminological research has consistently identified Aboriginal1 and Black Canadiansas the most overrepresented groups in Canada’s criminal justice system (Wortley, 2003). Accord-ing to the Correctional Investigator of Canada (CIC), Aboriginal individuals account for 23.2%of the federally incarcerated population, though representing only 4% of the national popu-lation (2013). Likewise, Black Canadians represent only 2.9% of the Canadian populace butaccount for 9.3% of the federal inmates (CIC, 2013). There have been active efforts to reducethe overrepresentation of Aboriginals, notably in Sections 81 & 84 of the Correction & ConditionalRelease Act (CIC, 2013). However, reports by the CIC indicate that similar efforts, through legis-lative provisions, do not exist for Black Canadians (CIC, 2013). The closest effort of this kind forthis group is found in Commissioner Directed (CD) initiatives to mitigate the over-representationof this demographic in corrections (Saper, 2012). With support from the CIC’s report on BlackInmate Experience, the objective of this paper is to answer why such extensive efforts (in the formof legislative initiatives) do not exist for Black offenders. This paper will argue that a lack ofhistorical obligation, relative absence of political activism, and the cost of recognizing diversityexplain why similar programs are not equally emplaced for Black Canadian offenders.Responding to Racial Bias: Black Initiatives The 1999 Gladue decision2 and legislative efforts in the Correctional Conditional ReleaseAct have been leading initiatives in addressing the overrepresentation of Indigenous offenders inthe justice system. However, the Canadian government has not engaged in such extensive effortsto mitigate the overrepresentation of its Black population in the justice system (CIC, 2013).Indeed, there has been micro-level activism by organizations like the African Canadian LegalClinic, but such efforts cannot be compared to mandated initiatives proposed and enforced bythe federal government. The closest efforts of this nature are policies directed towards culturalaccommodation in prisons; mainly found in Commissioner’s Directives 767. Commissioner’s Directive 767 (CD767) provide policies created for the CSC to ensurethat the interests and needs of ethno-cultural offenders are met in accordance with Canada’sMulticulturalism Act, the CCRA, and the Canadian Charter of Rights and Freedoms (Kabundi, 2015).An ethno-cultural offender is defined as an offender whose needs differ based on race, culture,or language and who desires to maintain his or her cultural identity while incarcerated (OCI,2013). CD 767 “Ethnocultural Offenders: Services & Interventions” provides an expansive list of respon-sibilities, procedures and calls for the implementation of Ethno-cultural Advisory Committees toanswer to specific needs of cultural offenders (OCI, 2013). Despite policy mandates of CD767 and institutional efforts to respond to CSC’s in-mate diversity (like the Ethnocultural Services Sector at National Headquarters), reports by theCorrectional Investigator (CI) find that the CSC is still not meeting the cultural needs of Blackinmates (OCI 2013). These shortcomings are mainly found in insufficient correctional programsand a lack of community support (OCI, 2013). As instructed by the CCRA (s.76), culturally relevant programs are to be provided toethno-cultural offenders with the aim of reducing re-offending (OCI, 2013). However, the CIfound that not only did Black-offender programs not reflect their historical and contextual expe-riences, but they were also limited to one institution in the Atlantic region (OCI, 2013). The Correctional Investigator also reported a lack of community support for Blackoffenders (OCI, 2013). According to CD767, the CSC has a duty to maintain networks betweeninmates and their communities which will provide offenders with a support system and easier re-integration into their communities (OCI, 2013). However, among all the institutions the CI visit-ed, there was little to non-existent effort in maintaining these connections (OCI, 2013). Some in-mates did report visitations with Ontario’s Black Inmates and Friends Association (BIFA), whileothers had not met any such organizations from Black communities (OCI, 2013). At one insti- 1 All Indigenous peoples of Canada, including First Nation, Inuit, and Metis (Constitution Act, 1982, s.35(2)) 2 The Gladue Approach allows the court to consider inter-generational disruption inflicted on Aboriginal people and acknowledges that the govern-ment’s part in the cultural disintegration of Indigenouspeople largely contributes to the group’s over-representation in the justice system (BearPaw, 2012) 45

tution, the Black Inmate Committee reported failed attempts at bridging the distance betweenBlack inmates and their communities because of the apathy and lack of support from CSC staffwho had claimed that these efforts were costly (OCI, 2013). Recidivism can be prevented bymaking such attempts a priority. If Black Canadian inmates are able to create networks withtheir communities (with the help of organizations like BIFA), then these connections may allowfor a smoother transition out of prison and an easier reintegration into inmates’ respective com-munities (OCI, 2013). This analysis shows that policy initiatives for Black Canadians ascribed byCD767 are not taken seriously by the CSC, thus hindering the mitigation of Black presence inthe criminal justice system.The Challenge of Diversity: Many Faces, One Colour Black Canadians are a vastly diverse group with different backgrounds. Migrants’countries of origin include Haiti, Nigeria, Jamaica, Somalia, and Trinidad & Tobago, to namea few (NHS, 2011). There is also a sizeable community of Black Canadians in Northern Hal-ifax (i.e. Africvilleans) whose common experiences have been shaped for over 200 years in theregion (Carvery, 2008). As explicated by Carvery, Africvilleans have cemented a strong sense ofcommunity and pride after facing economic, political, and environmental discrimination fromthe municipal and provincial governments (2008). This shared sense of identity does not existamong Canada’s Black migrants when considered as a single cohort, and thus portrays diversityon an intra-racial level. This shows that in addition to diversity within the migrant population,there is also diversity between Black Canadians. Indeed, the only point of similarity among BlackCanadians is the social significance of their skin colour. This heterogeneity is reflected among itsincarcerated population. The main challenge that arises from this diversity is the question of how to createcultural provisions for a group that does not have a common culture. However, it should be notedthat this issue arises from the practices of the criminal justice system. Despite federal legislationfounded on Canada’s official multiculturalism3, the justice system has yet to recognize and ac-knowledge the diversity among Black Canadians. This is evident in policing practices. Becauseracial bias at the policing level does not distinguish Black Canadians by ethnicity, it then becomesdifficult to provide culturally relevant provisions at the corrections level to reduce recidivism ofBlack groups. In other words, police practices like carding4 are largely based on race as a prin-cipal marker of identity5. Black people thus enter the justice system as ‘one’ group6 and remainunder this classification on all levels of the justice system, namely, police, courts, and corrections,regardless of ethnicity. This analysis of diversity and its implications in the justice system offersone explanation of the scarcity of Black initiatives in corrections.Explaining the Infancy of Black Initiatives: The Role of Accountability A perceived lack of obligation, relatively less political activism (compared to Aborig-inal peoples), and the cost of funding culturally relevant programs, provide additional explana-tions to the infancy of Black initiatives in the justice system. Essentially, there is an absence of similar provisions for Black ethno-cultural minori-ties. It is inferred that, because the discrimination of Black Canadians was not entrenched inlegislative documents, the federal government does not feel accountable for the disproportionaterepresentation of this demographic in the justice system. There is national recognition of thegovernment’s role in the disintegration of Aboriginal life which was accomplished in legislationlike the Indian Act of 1876 and the Residential School Policy initiated in 1892 (VAS, 2014 ). Theintergenerational trauma caused by these legislations have been nationally recognized throughmedia such as the Truth and Reconciliation Commission and policy initiatives like the Gladue 3 Notably, the Multiculturalism Act 4 Carding is a controversial method of intelligence collection used by Ontario police, criticised for its tendency to mainly capture Blackmen into the police database. It is argued that police stops are arbitrary and founded on constables’ suspicions of a civilian’s connectionto a crime (The Agenda, 2015). ‘Carding’ forms require categorical classifications (e.g. ‘black’ or ‘white’) as identity markers (Rankin et. al.,2013). 5 Although intersecting markers like social class have been shown to contribute to race-based discrimination (Wortley, 2003) 6 Referring to race-based classification of 208 police cards 46

Decision. However, similar recognition does not exist for Black Canadians. This is because with-in Canadian history there were no national efforts to annihilate the culture and identity of Blackgroups. The Indian Act alone exiled First Nations into reserves, mandated the residential schoolsystem, denied Indigenous women the right to vote, imposed an unnatural band council systemof government, enfranchised Aboriginal people who received Canadian education, and strippedFirst Nations of their heritage, language, and identity (Joseph, 2015). With that said, it shouldbe noted that since Canada was a colony of the British Empire, doctrines like the Barbadian SlaveCodes that legalized slavery in all British colonies technically served as legal means through whichAfrican people were subjugated (Gaertner, 2015). However, the 1867 Dominion of Canada hada minor role to play in the trans-Atlantic slave trade (Winks, 2006). This absence of discrim-inatory legislation supports the argument that Canada does not feel accountable for systemicdiscrimination towards Black Canadians. One could argue that discrimination towards Africvilleans does make Canada his-torically accountable to at least some of its Black population. Although there were no federallymandated abuses against the people of Africville, the aforementioned environmental racism wasstill integral to the systemic discrimination against this group. But, because this racism was onlygovernmentally enforced at a provincial and municipal level, a demand for nation-wide repara-tions for Africvilleans, or all Black Canadians, is unlikely.The Relative Absence of Political Activism The relative absence of political activism at the national level further explains thescarcity of Black provisions in the justice system. Relative to Aboriginal groups, there are sig-nificantly fewer inter-governmental7 forums that target Black Canadian issues. With that said, itshould be noted that there are some organizations that have done significant work to intercedeon behalf of Black Canadians. Unlike Aboriginal peoples8, there have been no political parties in Canada at thefederal or provincial levels to advance Black Canadian issues. It is proposed that the absence ofsuch parties at the national level is explained by the misguided sentiment among Canadians thatdiscrimination towards Black Canadians does not exist due to the country’s multicultural nature.Canada’s egalitarian reputation has been a hindrance to true equality as the government hidesbehind public opinion. Additionally, heightened racial tensions in the United States9 between itsBlack and white populations (particularly in the context of police brutality) promotes the mis-guided image of an ‘all-inclusive’ Canada, despite the fact that Black people are disproportion-ately represented in police use-of-force cases (Owusu-Bempah, 2015). This reputation inhibitsthe public acknowledgment of injustices against Black Canadians and the ability to respondaccordingly through intergovernmental forums. Hence, the absence of such political parties forBlack Canadians means that issues such as overrepresentation cannot be put forward. This discussion can be linked back to the diversity of Black Canadians and what“Black Issues” really means in Canada. Can a people who have already been established as a collective onlybased on their complexion have national recognition of their issues? If such parties were to exist at the nationallevel, whose agenda would be advanced? Considering such questions allows one to see that “pan-Black”political parties could only be united on a general platform of eliminating systemic racism in Ca-nadian institutions. While this is a worthy cause, Black Canadians’ different cultures and valuesmay cause such parties to run into the dilemma of just how to go about doing this. And, if theseparties were to run on a specific set of solutions while ignoring the visions of other Black commu-nities, then a problem of dominance develops in which one vision is imposed over others. Thisanalysis demonstrates the theoretical difficulties behind Black political formation and suggeststhat organization on a race-based level, as opposed to ethnic-based, could potentially recreateinequality structures through favouring one ideology and/or belief system over others. 7 At Canadian federal and provincial levels. 8 The First People’s National Party of Canada (Niemczak & Jutras, 2008) 9 Racial tensions in America are concentrated between the Black minority and White majority (Agiesta, 2015). Perceptions of thistension are growing. 47

There have been notable organizations, particularly the African Canadian LegalClinic (ACLC), which are founded on the goal of eliminating anti-Black racism in Canada (Tek-lu, 2012). The ACLC offers services like legal aid, youth and adult justice programs, and the To-ronto Jail Employment Program (Teklu, 2012). The main channels through which the ACLC op-erate are litigation and intervention, legal education and law reform, and monitoring legislativeand administrative developments (Teklu, 2012, p. 2). Similar organizations include the NationalAfrican Canadian Association (NACA), another non-profit with the objective of promoting theeducation and economic development of Black, African and Caribbean Canadians (NACA,2009). These organizations have accomplished ground-breaking work in the social developmentof Black communities. Although these agencies have had substantial impact on raising awareness of racialbias in the justice system, their micro-level approach via community involvement does not havethe nation-wide impact of representation in the federal parliament and/or provincial legislature.The absence of similar national and provincial level activism hinders the discussion of Blackoverrepresentation in the justice system. Although not without its theoretical problems, as dis-cussed above, political channels are arguably the most effective method in addressing minorityinjustices in Canada’s parliamentary liberal democracy.The Cost of Diversity Finally, the lack of legislative provisions is explained by the financial difficulties of ac-commodating the specific needs of all ethnic groups in the Black minority. It has been establishedthat Black Canadians are multicultural and have different belief systems and values. Thus, if thegovernment were to respond to the overrepresentation of this demographic in the justice systemwith legislative initiatives like the Gladue Report, then such efforts would have to be adapted tothe individual’s life experiences as shaped by his or her culture and history. However, if initiativeswere created to fit the biography of every Black ethno-cultural offender, a financial issue thenarises in how these “tailored” programs would be funded. For instance, $26 million in federal funds was allocated to Section 81 Healing Lodgesand CSC Healing Lodges from 2009 – 2010 (OCI, 2012). CSC-managed Healing Lodges aregoverned by Indigenous principles10 (CSC, 2016). Although Aboriginal people in Canada arevery diverse, they share similar value systems and philosophies (Carter, 2016). Thus, if these leg-islative provisions for Indigenous justice initiatives requires a relatively large amount of funding,then one can infer that funding programs for a group with multiple value systems and world-views would be vastly more expensive as fewer commonalities may be found among Black ethnicgroups (VAS, 2014).Moving Forward: Steps Towards Racial Equality Considering the explanations that have been offered regarding the relative absenceof appropriate justice provisions for Black Canadians, one can see that creating such initiativesis difficult to achieve. Regardless, it is important to consider some first steps in moving towardsracial equality in the justice system. First, there must be a national acknowledgement of systemic racism in Canada. Thismeans that the government must stop hiding behind Canada’s reputation as a ‘multiculturalsociety’ and acknowledge the systemic disadvantage Black Canadians face at all levels of thejustice system. Understandably, this is a daunting task considering that in order to “fix” a prob-lem, one must first isolate the root of that problem (i.e. the variable of disadvantage). For BlackCanadians, this is primarily the social significance attached to colour of their skin It is true thatother factors, like social class, intersect to aggravate racial bias on the part of the justice system,but race is the most salient identity marker because it is seen by justice personnel. In addition to acknowledging the existence of systemic racism, organizations like theAfrican Canadian Legal Clinic and National African Canadian Association should have a moreethnicity-based approach to dealing with Black issues. Doing so would allow these communi- 10 Most CSC Healing Lodges take on a holistic pedagogy that incorporates physical, spiritual, and emotional healing within theirframework (CSC, 2016) 48

ty-based groups to mitigate the effects of systemic racism with methods that are specific to theculture and life experiences of these communities. One possible suggestion to accomplish this isthrough culturally relevant education programs on Canadian law. Although weaknesses in creating similar legislative provisions like Sections 81 and84 of the CCRA for Black inmates have been identified (i.e. lack of obligation, relatively lesspolitical activism, and the cost of diversity), this does not mean that efforts to decrease racialbias and, hence, overrepresentation, cannot be taken by individual levels of the justice system.Rather, the CSC should respond to the failures identified by the Correctional Investigator inthe annual reports. Most importantly, CSC should focus on creating networking programs thatbridge Black inmates with their ethnic communities. Additionally, developing more culturallyrelevant programs in corrections that are available across Canada and in all correctional facilitiesis a great first step towards reducing recidivism and decreasing the presence of Black Canadiansin corrections.Conclusion The overrepresentation of the Black minority in the criminal justice system has beena long-standing issue in Canada. Efforts, such as legislative provisions, have been made to reducethe chronic presence of Aboriginals in the justice system but such extensive initiatives do notexist for Black inmates. Several explanations have been offered for this, specifically accountabilityby the federal government, the role of political activism, and the financial difficulties behind suchan endeavour. This essay has suggested progressive steps towards mitigating the chronic presenceof Black inmates. Among these, it has argued that recognizing the diversity within the Blackcommunity and nationally acknowledging the presence of systemic racism, are important stepstowards racial equality in the justice system. Moreover, there is a relative absence of research onthe effectiveness of current ethno-cultural programmes for Black inmates, like Africentric Heal-ing at Springhill Institution, on preventing recidivism. Also, research on the effects of over-rep-resentation in ethnic communities, particularly among Black Canadians, should be conducted tocreate awareness among the Canadian public and communicate the need for federal action. ForCanada to rightfully claim the reputation of a multicultural society, there must first be a nationalrecognition of systemic racism that is embedded within its institutions. REFERENCESAgiesta, J. (2015). CNN: Race and Reality in America – 5 Key Findings. Retrieved April 11, 2016 from http://www.cnn.com/2015/11/24/us/race-reality-key-findings/BearPaw. (2012). The Gladue Report.mov. Retrieved April 11, 2016, from https://www.youtube.com/watch?v=7lyPJsNHdQwCarter, J. (2016). The Stories We Tell: Narratives Forms and Societal Structures. Lecture conducted at: University of Toronto on September 26, 2016. Toronto.Carvery, I. (2008). Africville: A Community Displaced. The History of Africville As Told by the People of Africville. Retrieved April 11, 2016 from https://www.collectionscanada.gc.ca/northern-star/033005-2601-e.html#contCBC. (2010). Halifax Apologizes for Razing Africville. Retrieved on April 11, 2016 from http://www.cbc.ca/news/canada/nova-scotia/halifax-apologizes-for-razing-af ricville-1.894944Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Correctional Services Canada. Quarterly Financial Report. Retrieved April 11, 2016 from http://www.csc-scc.gc.ca/text/QFR/2012-2013/3-eng.shtml#_Toc332791326Gaertner, F. (2015). How the Barbados Slave Codes Impacted the Americas. Retrieved on April 11, 2016 from http://sixdaystillsunday.com/how-the-barbados-slave-code-im pacted-the-americas/ 49

Government of Canada, Correctional Service of Canada, Senior Deputy Commissioner, Aboriginal Initiatives, Director General. (2016, December 1). Correctional Services Canada Healing Lodges. Retrieved May 6, 2017 from https://www.csc-scc.gc.ca/aboriginalJoseph, B. (2015, June 2). 21 Things You May Not Have Known About The Indian Act. Retrieved April 14, 2017, from https://www.ictinc.ca/blog/21-things-you- may-not-have-known-about-the-indian-act-Kabundi, M. (2015). Commissioner’s Directive 767 on Ethnocultural Programs Performance and Compliance Indicators. Retrieved April 11, 2016 from http://www.csc-scc.gc.ca/text/pblct/ethno/perform-cd767/perform-767-eng.shtmlNational African Canadian Association. Retrieved April 11, 2016 from http://www.naca.ca/Niemczak, C., Jutras, C. (2008). Aboriginal Political Representation: A Review of Several Jurisdictions. Retrieved on April 11, 2016 from http://www.lop.parl.gc.ca/ content/lop/researchpublications/bp359-e.htm#3thecharlottetownOffice of the Correctional Investigator. (2012). Spirit Matters: The Aboriginal People and the Correctional and Conditional Release Act. Retrieved April 11, 2016 from http://www.oci-bec.gc.ca/cnt/rpt/oth-aut/oth-aut20121022-eng.aspx.Owusu-Bempah, A. (2015, June 9). The end of carding is just the beginning. Retreived May 6, 2017 from https://www.google.ca/amp/s/sec.theglobeandmail.com/ end-of-carding-just-a-beginning.Rankin, J., Winsa, P., Bailey, A., & Ng, H. (2013, September 27). One officer, five years, 6,600 contact cards. Retrieved March 22, 2017, from https://www.thestar.com/news /gta/knowntopolice2013/2013/09/27/one_officer_five_years_ 6600_contact_cards.htmlSaper, H. (2012). Spirit matters: Aboriginal people and the corrections and conditional release act.Statistics Canada. (2011). National Household Survey. Retrieved April 11, 2016 from http://www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-010-x/99-010-x2011001- eng.cfmTeklu, M. (2012). African Canadian Legal Clinic. Canada’s Forgotten Children: Written Submissions to the Committee on the Rights of the Child on the Third and Fourth Reports of Canada. Retrieved April 11, 2016 from http://www2.ohchr.org/english/bodies/ crc/docs/ngos/Canada_African_Canadian_Legal_Clinic_CRC61.pdfThe Agenda. (2015, June 12). To Card or Not To Card. Retrieved March 22, 2017, from https://www.youtube.com/watch?v=f4KcpXaMxtYViolence and Aggression Symposium (VAS). (2014). Aboriginal Social History and Corrections [Powerpoint slides]. Retrieved from http://www.usask.ca/cfbsjs/VA2014/ Presentations/Allgaier%20presentation.pdfWinks, R. (2006) Historica Canada: Enslavement. Retrieved on April 11, 2016 from http://www.thecanadianencyclopedia.ca/en/article/slavery/Wortley, S. (2003). Hidden intersections: Research on race, crime, and criminal justice in Canada. Canadian Ethnic Studies Journal, 35(3), 99-118. 50