Unshackling Justice for Black and Indigenous Communities in Canada: Reimagining the “Public Interest” Test in Criminal Prosecutions

For decades, the ideas of equality, justice, and human rights have been the core pillars of Canada’s national identity. However, the reality embedded within our criminal justice system creates a significant obstacle to the actualization of those ideas. Overrepresentation of Indigenous and Black individuals in Canadian jails and prisons, and systemic racism in the criminal justice system, have been well documented in numerous studies and inquiries.[1] The Ontario Court of Appeal acknowledged this systemic issue over thirty years ago in R v Parks, 1993 CanLII 3383. This necessitates a pressing reconsideration of the “public interest” test used by federal and provincial Crown prosecutors to determine whether to proceed with charges.

Understanding the “Public Interest” Test

For nearly a century, the “public interest” test has been the second key consideration for Canadian prosecutors, as well as in most Common Law jurisdictions, in the exercise of discretion to prosecute. The first key consideration is called the evidentiary test or reasonable prospect of conviction where the strength of the case is assessed to determine if there is a sufficient probability of conviction at trial. Even if the case meets the evidentiary test, the prosecutor must still consider if the public interest requires a prosecution. This test aim to protect against excessive prosecution by examining factors such as the gravity of the offence, its impact on the victim, the accused individual’s intent and circumstances, and the implications for community safety and confidence in the justice system, among other factors. While designed to guide prosecutorial discretion, its current application may benefit from further consideration of the complex societal factors contributing to certain racial and cultural groups experiencing increased contact with the criminal justice system.

The Challenge of Racial Disparities

The empirical data is stark. Indigenous peoples make up over 30% of the federal prison population despite being just 5% of the overall Canadian public.[2] Black Canadians are incarcerated across the country 3-4 times more often than could be expected based on their demographic population[3] and recently acknowledged by the Ontario Court of Appeal in R v Morris 2021 ONCA 680 and the Nova Scotia Court of Appeal in R. v. Anderson 2021 NSCA 62. Regrettably, these stark disparities cannot be divorced from the broader socioeconomic inequalities such as poverty, racism, social and institutional biases and the other effects of systemic racism. They also contrast sharply with the Supreme Court of Canada’s directives in R v Gladue, [1999] 1 SCR 688 and R v Ipeelee, 2012 SCC 13, which expects judges to consider systemic background factors at all stages of the criminal process.

The reality suggests that the current application of the public interest test constructively disregards the complex social factors and institutional barriers that place some communities at risk of involvement in the criminal justice system. Studies have shown that poverty, lack of access to education and healthcare, the effects of intergenerational trauma, and systemic discrimination intersect to create environments with a high risk of crime.[4]

Every Canadian province and territory, along with the Public Prosecution Service of Canada, has comprehensive manuals to assist prosecutors in the use of the public interest test. However, more recent reports suggest that current practices may still be contravening judicial directives and the intended use of these manuals[5]. In addition, the public interest assessment process often fails to consider the underlying factors that contribute to criminality including socioeconomic marginalization and systemic discrimination. Be that as it may, by not adequately considering these systemic factors in the application of the “public interest” test, the disparities the test seeks to address may be exacerbated by its application. To ensure that prosecutorial decisions meet with society’s principles of fair justice, it is necessary to reimagine the scope of the test. This reimagined perspective will ensure that prosecutorial decisions reflect the fairness and equality that is intended.

When making prosecutorial decisions, it’s important to fully consider the root causes of crime. Failing to do so can perpetuate cycles of marginalization and alienation. This often leads to a disproportionate number of Indigenous and Black individuals being funneled into a carceral system that is often criticized, by scholars, for being ill-equipped to address these root causes.[6] As a result, these communities are deprived of human potential, cementing their overrepresentation in the carceral system. This goes against what the Court in Gladue warned about and risks perpetuating the “serious disadvantages” faced by many Indigenous peoples.

Reimagining the “Public Interest” Test

Now is the time to reimagine the “public interest” test, aligning it with a holistic, restorative vision of justice. This approach prioritizes addressing the systemic causes of crime over purely punitive responses which numerous studies have shown to be ineffective in enhancing true public safety.[7]

A reimagined “public interest” test that requires prosecutors to deeply consider systemic factors like socioeconomic marginalization, discrimination, and institutional barriers impacting the accused also places a significant responsibility on defence counsel. For this holistic prosecutorial assessment to work well, defence counsel must thoroughly investigate and fully represent their client’s background and circumstances. They need to consider questions such as: Did poverty and lack of access to social supports influence the accused’s path to crime? Has intergenerational trauma eroded community stabilizing forces over generations? Were discriminatory practices or institutional indifference complicit in criminogenic conditions?

For instance, when prosecutors ask, “Was the accused’s path to criminality influenced by poverty and lack of access to social supports?”, the defence would bear the responsibility of gathering evidence and expert reports detailing their client’s socioeconomic disadvantages, barriers to social services, and how those realities may have made them vulnerable to crime. Relevant data could include information about the accused’s struggle with housing and employment, lack of access to mental health care, refusal of substance abuse treatment, and other social support failings connected to poverty.

Similarly, when prosecutors consider if “intergenerational trauma has persisted through generations, causing a breakdown in community stabilizing influences”, defence counsel should provide a nuanced, well-researched description of their client’s background and cultural dislocation through an intersectional lens. This might include detailing the colonial legacies of the accused’s family, their displacement from ancestral lands, their attendance at residential schools, and their involvement with child welfare systems. All these factors could demonstrate the destabilizing forces that shaped the accused’s life.

When evaluating potential “discriminatory practices or institutional indifference complicit in criminogenic conditions,” defence advocacy becomes even more crucial. Defence counsel should make compelling arguments about systemic racial biases, institutional policies negatively impacting their client’s community, and unequal treatment. Rigorous fact-finding may reveal patterns of over-policing, unfair school disciplinary practices, unequal access to diversionary programs, and other examples of institutional indifference that perpetuate crime-inducing environments.

In this reimagined “public interest” framing, defence counsel has a core duty to research, find information, and obtain testimony that contextualizes their client’s life story beyond just the immediate circumstances surrounding charges and criminal records. Gathering comprehensive evidence that paints a full picture of systemic forces influencing marginalized accused persons becomes essential for prosecutors to uphold their mandate and comply with judicial directions.

This obligation shows the need for more resources, specialized training, and ethno-cultural competencies within the defence bar. Defence counsel, just like prosecutors, requires tools to navigate complex sociological, psychological, and community-specific dynamics to investigate intersectional disadvantages and their criminogenic realities fully. Increased funding for social workers, counsellors, and expert partnerships could enhance defence capacities in this regard.

Additionally, practice guides standardizing approaches for contextualizing systemic influences could ensure diligent attention to relevant background details. Stakeholder consultations with impacted communities on what substantive information prosecutors should consider as they reimagine “public interest” analysis would further strengthen these overdue reforms.

A reimagined “public interest” test that accounts for systemic forces causing disadvantage depends on the evolution of defence competencies. Prosecutorial consideration of these dynamics can only be as effective as the defence counsel’s skill and resources in highlighting them well. Real progress requires a unified reframing across all parts of the legal process to collaboratively dismantle systemic injustices.

While the reimagined “public interest” test places significant emphasis on the role of defence counsel, it is crucial to acknowledge a critical oversight in the current system: the plight of unrepresented accused. These individuals, who often come from marginalized communities, frequently lack the resources or knowledge to effectively present mitigating factors and contextual information that could significantly impact prosecutorial decision-making.

To address this gap and ensure equitable application of the reimagined “public interest” test, the following measures are recommended:

1. Expansion of Legal Aid: It is imperative to increase funding and broaden eligibility criteria for legal aid programs. This expansion would ensure that more accused individuals have access to competent legal representation, which is essential for the effective implementation of the reimagined test. Enhanced access to legal aid would allow for a more comprehensive presentation of systemic factors and background information.
2. Court-Appointed Advocates: For those who remain unrepresented despite expanded legal aid, a system of court-appointed advocates should be established. These advocates, who need not necessarily be lawyers, would be responsible for gathering and presenting contextual information crucial to the application of the reimagined “public interest” test. This approach would ensure that even without full legal representation, accused individuals have support in conveying their circumstances to prosecutors and the court
3. Standardized Information-Gathering Tools: The development of standardized questionnaires or other tools is recommended to assist unrepresented accused in providing relevant background information to prosecutors and the court. These tools should be designed to capture key systemic factors and personal circumstances that ought to be considered in the application of the “public interest” test.
4. Enhanced Judicial Training: It is recommended that judges receive specialized training to proactively inquire about systemic factors when dealing with unrepresented accused from marginalized communities. This judicial intervention can help ensure that critical contextual information is not overlooked simply due to an accused’s lack of representation.

These recommendations, working in tandem with the reimagined “public interest” test, would help ensure that the systemic factors affecting marginalized communities are consistently considered in prosecutorial decision-making, regardless of an accused’s ability to secure legal representation. This approach aligns with the principles of fairness and equality that underpin the Canadian justice system and supports the overarching goal of addressing the overrepresentation of Indigenous and Black individuals in the criminal justice system.

This reimagining of the “public interest” test does not excuse crime and neither does it in no way abrogate prosecutors’ constitutional duty to uphold public safety and security. Even with an equity-oriented, systemic lens, the severest crimes that represent unacceptable threats to the community must still be stringently prosecuted regardless of disadvantaging circumstances that may have influenced the accused. However, it recognizes that we cannot dismantle systemic overrepresentation through processes that fail to confront its causes directly. Serving the true public interest means not perpetuating cycles of injustice that disenfranchise entire communities such as the Indigenous peoples and Black Canadians.

Conclusion

The road will not be easy. It requires questioning long-held assumptions and recalibrating entrenched practices. Resources must be devoted to developing trauma-informed prosecution strategies centred on root cause intervention, rehabilitation, and community-based solutions properly calibrated along with incarceration.

Transformative justice often demands a radical rethinking of norms. Reimagining the public interest test is a meaningful start, realigning our criminal justice system with its highest principles. To truly uphold society’s well-being, we must embrace public interest as the across-the-board dismantling of the systems that cause crime, not just prosecuting its symptoms.

The legitimacy and public trust in Canada’s legal system depend on this principled evolution. This principled evolution can propel true progress towards an impartial practice reflective of Canadian society’s highest aspirations for equitable justice for all people – a paramount public interest that prosecutors must continually strive to uphold.

Justice demands we get this right. We must do so to fulfill the Supreme Court of Canada’s vision of rebuilding a system premised on equality, fairness, and human dignity for all people.

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Dr. Ayodele Akenroye, Ph.D. (McGill), is a Federal Crown Prosecutor with the Public Prosecution Service of Canada. This article was produced independently from the author’s duties at the Public Prosecution Service of Canada. The views, opinions, and conclusions contained in this article are those of the author and should not be regarded as representing the Public Prosecution Service of Canada or the Federal Crown.

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[1] Office of the Correctional Investigator, Annual Report 2019-2020 (2020), online: https://oci-bec.gc.ca/sites/default/files/2023-06/annrpt20192020-eng.pdf; Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada: Calls to Action(2015), online: https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/indigenous-people/aboriginal-peoples-documents/calls_to_action_english2.pdf; Commission on Systemic Racism in the Ontario Criminal Justice System, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (1995), online: https://dn790001.ca.archive.org/0/items/reportracismont00comm/reportracismont00comm.pdf; and BC’s Office of the Human Rights Commissioner, Equity is Safer: Human Rights Considerations for Policing Reform in British Columbia (2021), online: https://bchumanrights.ca/wp-content/uploads/BCOHRC_Nov2021_SCORPA_Equity-is-safer.pdf

[2] Statistics Canada, Indigenous Overrepresentation in Canadian Federal Prisons (Ottawa: Government of Canada, 2020), online: https://www.canada.ca/en/public-safety-canada/news/2020/01/indigenous-people-in-federal-custody-surpasses-30-correctional-investigator-issues-statement-and-challenge.html

[3] Canadian Civil Liberties Association, Anti-Black Racism in Canada – Fact Sheet (2021), online: https://ccla.org/wp-content/uploads/2021/12/Anti-Black-Racism-Fact-Sheet-2021.pdf; Public Safety Canada, Corrections and Conditional Release Statistical Overview: 2020 Annual Report (Government of Canada, 2021), online: https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ccrso-2020/index-en.aspx

[4] Robert J Sampson & Charles Loeffler, “Punishment’s Place: The Local Concentration of Mass Incarceration” (2010) 139:3 Daedalus 20; Lance Lochner & Enrico Moretti, “The Effect of Education on Crime: Evidence from Prison Inmates, Arrests, and Self-Reports” (2004) 94:1 American Economic Rev 155; Joel B Willison & Marc Mauer, “Potential for Black/White Disparity in Different Offense Categories” (2006) 18:3 Federal Sentencing Reporter 205; Amy Bombay, Kimberly Matheson & Hymie Anisman, “The Intergenerational Effects of Indian Residential Schools: Implications for the Concept of Historical Trauma” (2014) 51:3 Transcultural Psychiatry 320; and Akwasi Owusu-Bempah & Scot Wortley, “Race, Crime, and Criminal Justice in Canada” in Sandra M Bucerius & Michael Tonry, eds, The Oxford Handbook of Ethnicity, Crime, and Immigration (Oxford: Oxford University Press, 2014) 281.

[5] BC’s Office of the Human Rights Commissioner, Equity is Safer: Human Rights Considerations for Policing Reform in British Columbia (2021), online: https://bchumanrights.ca/wp-content/uploads/BCOHRC_Nov2021_SCORPA_Equity-is-safer.pdf

[6] D.C. & George L. Kelling, Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities (New York: Simon and Schuster, 1999); Robert J. Sampson & Charles Loeffler, “Punishment’s Place: The Local Concentration of Mass Incarceration” (2010) 139:3 Daedalus 20; Office of the Correctional Investigator, ‘Indigenous People in Federal Custody Surpasses 30% – Correctional Investigator Issues Statement and Challenge’ (2020), online: Government of Canada https://www.canada.ca/en/public-safety-canada/news/2020/01/indigenous-people-in-federal-custody-surpasses-30-correctional-investigator-issues-statement-and-challenge.html; Akwasi Owusu-Bempah, “Race and Policing in Historical Context: Dehumanization and the Policing of Black People in the 21st Century” (2017) 21:1 Theoretical Criminology 23 and Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2020)

[7] Public Safety Canada, “Punishment and Recidivism” (2022), online: Government of Canada <www.publicsafety.gc.ca/cnt/rsrcs/pblctns/pnshnt-rcdvsm/index-en.aspx>, and Julian V Roberts & Anthony N Doob, “Race, Ethnicity, and Criminal Justice in Canada” (2002), online (pdf): Department of Justice Canada <www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr02_1/rr02_1.pdf>