Ever since we were monkeys, we’ve endeavoured to control and organize our society. And as we evolve physically, we also evolve socially. No longer is it just the biggest, baddest, ugliest monkey on the block that controls our society: we now generally expect our leaders to win elections instead of fights.
As part of that social evolution, we’ve created a range of social constructs to help us cope with daily life. Some of our social constructs, like race as an indicator of capability or status, are dumb. These constructs are rightly being challenged; and up until Trump was elected, were being taken seriously. Groups of people who have been historically disadvantaged were starting to make progress.
The important thing about these constructs is that they influence our behaviour. Basically, they’re everything. Why do you feel guilty when you don’t call your mom? That’s a construct. Why is afternoon breakfast weird? It’s a construct. Why is the middle finger offensive? Construct.
Everything we have agreed on as a society is a construct.
One of these constructs that govern our life – the one that gives us elections instead of fights – is codified in writing. It’s the foundation of modern society. It’s essential for our social organization.
It’s the rule of law; and it’s in jeopardy.
The rule of law is an agreement that we promise to live by.
We promise to abide by them, and in exchange, we don’t lose our freedom.
For a long time, this has worked relatively well.
It’s starting to show cracks. We need to fix these if we want the rule of law to continue.
For the Black population, these cracks exist in the fact that they are far more likely to be stopped by police in cities like Toronto. It’s okay that this happens because police are just using probability. Black people are probably more likely to commit crimes – at least that’s what police say to justify their practices.
Black people are also more likely to get a longer sentence and are more likely to be over-represented in prison. Depending on age and sex that over-representation is as much as 300 per cent, but statistics on incarcerated Black women aren’t easy to find for comparison.
So it’s hard to say for sure. We don’t collect or analyze data on the background or ethnicity of prisoners. Is this because it’s easier to ignore a problem if there’s no data to show that there’s a problem in the first place?
And it’s exacerbated for Indigenous peoples, where over-representation is as high as 500 per cent, including the women (thanks to the independent records-keeping by various Indigenous groups across the country).
Even scarier for Indigenous peoples is how worthless their lives are to the criminal justice system compared to their white counterparts.
If you’re white and you negligently discharge a weapon killing a Cree man, no problem. Stack the jury with fellow white folks, using a system that’s been critiqued as unfair since at least 1991, and you get a not-guilty verdict. If you’re Indigenous and shoot a gun through a window? Well, that’s two years in jail because “you could have killed someone.”
While it’s not completely fair to compare a murder trial with a firearms trial, Gerald Stanley will only be back in court for improper storage of his guns.
Two years for damaging a window if you’re Indigenous. Maybe a fine for storing your guns improperly and killing an Indigenous person if you’re white.
Racism isn’t the only problem with the justice system. Unsurprisingly the problems extend to other historically disadvantaged groups, like women.
For women, the problems with the justice system aren’t just for the accused, but the victims. For the women who are victims of sexual based crime, the path to justice is long, arduous and rarely results in justice.
The justice system gives women problems almost immediately. If they have been assaulted, there’s about a one in five chance the police will dismiss the case as unfounded. There’s an argument to be made that sexual assault is hard to prove: soft tissue, like arms, necks and vaginas heal, usually, very quick. This means that evidence of an assault also disappears relatively quick. It’s hard for police to prove a he-said-she-said case without evidence. Evidence that’s essentially gone if victims don’t feel comfortable with coming in right away to have their bodies photographed and entered as evidence.
It’s a valid argument.
One that would have a lot more weight if sexual assault charges weren’t twice as likely to be “unfounded” as non-sexual assault charges.
If a woman does manage to get her case investigated and to trial, it’s often not a trial of the accused. It becomes a trial of the woman.
What was she wearing?
Was she drinking?
Does she have a history of being “a slut”?
And we pretend like these questions have anything to do with the assaulter. These questions are ridiculous to ask. Consider them in another context.
Was your house nicely painted before being burgled?
Was there booze in the house?
How many people have you had over to your house?
Women are often lambasted in sexual assault trials for inconsistent stories. Even though that’s a completely normal result of trauma. Even though trauma is inherent to sexual assault.
How the justice system fails, women can easliy be seen with how it fails young women in Halifax. Using any standard of behaviour, it’s easy to see how a cab driver who’d previously been accused of sexual assault may have been taking advantage of a drunk woman. It’s easy to see that his behaviour was pretty obviously interrupted by a police officer right before sexual assault turned into rape.
But that’s not how the judge ruled: clearly “a drunk can consent.” Clearly Bassam Al-Rawi was going to stop assaulting a woman after she had passed out. Clearly, Al-Rawi didn’t drive to a secluded spot because his fare was passed out and he’s a predator.
Legal experts and lawyers will point out that the legal system in Al-Rawi’s case worked. He’s going back to trial. Three years after the assault an appeals court ruled that the initial judge got it wrong.
But it’s too little too late. The damage is already done. How many judges have to rule that passed out drunks can consent, or that a victim should have kept her knees together before it’s a systemic problem instead of an individual one? How many times do they now need to get it right to regain the trust of victims of sexual assault?
Every time a case like Al-Rawi or Stanley gets a verdict that doesn’t make sense, the answer from the experts needs to be more than “The system is working. Trust it.”
These same lawyers and legal experts, armchair and otherwise, will rightly point out that one of the foundational principles of our legal system is that it’s better to let 10 guilty people go than lock up one innocent person.
And they’re right. Well they would be if we weren’t imprisoning innocent people. Shows like Serial and Making a Murderer are bringing to light the fact that we’re locking up a lot of innocent people. In Canada, there’s the additional fact that people who are awaiting trial are in jail so long they are dying in jail. The identities of dead are kept private.
Ostensibly this is to protect the families. Cynically this is to avoid embarrassment. For the same cynical reason, it’s easy to believe the government isn’t collecting data on prisoners to avoid the embarrassment of the racial disparity.
All of this leads to some very serious problems for the future of our country. What happens if all the BIPOC and women in Canada stop trusting our justice system? What happens if their allies do too? Would it lead to vigilante justice? Revolution?
It’s hard to predict where this will lead. But it’s a road we’ve already started heading down. The repercussions of this crisis have already started.
Just ask Patrick Brown.
Brown allegedly sexually assaulted two women. Instead of reporting this to the police and pursuing legal action against Brown they went to CTV. CTV published their story. After a thorough character assassination, Brown’s career is trashed and over. The Ontario Progressive Conservative (OPC) party are now riding a wild-card leader’s wave of populism into a provincial election. The OPC likely would have won a majority against Wynne’s tired Liberal party with Brown at the helm. Is Brown guilty? Did it happen? Who knows? Legally we probably won’t. The only case that might go to court is a libel case against CTV.
The justice system and the rule of law are in trouble.
If those two women had pressed charges, their case might have been thrown out. If not “unfounded,” the two of them would have been dragged through the streets in a highly publicized version of slut shaming. Patrick Brown probably would have become premier.
Instead, they went to CTV. Their characters remain largely unsullied and un-attacked. Patrick Brown’s punishment was swift and satisfying. The people who enabled him have also probably lost their shot at power. The victims can move on with their lives.
Why on earth would anyone choose the justice system with this functional alternative available?
That’s a problem that our politicians need to fix – or ignore at our peril.