In Its Majestic Equality", Carleton University Journal of Legal Studies (CUJLS), 2014, 4(1). by Carleton University Journal of Legal Studies

Carleton ! University  Journal of   Legal Studies! “In Its Majestic Equality”

Vol. IV, Issue I, 2014

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Carleton University   Journal of Legal Studies Carleton University   Law and Legal Studies Society

Vol. IV, Issue I, 2014

A bout

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" The Carleton University Journal of Legal Studies is a non-profit, studentrun initiative that aims to establish community, develop academic strengths, instil pride in students, and provide new opportunities for success. The journal encompasses a carefully determined selection of student-authored articles that reflect the comprehensive and interdisciplinary undergraduate Law and Legal Studies program offered at Carleton University. The articles demonstrate the diverse interests of Carleton students as well as the writing and critical thinking skills they have come to develop through their studies. It is through the journal that the inspiring efforts of Carleton students can be shared with the academic community.   The journal has been peer-reviewed by Co-Editors, Meghan Boulanger and Katrina Squazzin, as well as by the Editor-in-Chief, Carly Jacuk. The journal is published annually each Fall and begins to accept article submissions in the Winter following the Editorial Board’s “Call for Papers”. For more on CUJLS contact carletonlawsociety@gmail.com or visit the Carleton Law Society online at www.carletonlawsociety.ca.   CUJLS Committee - 2014

Editor-in-Chief

Carly Jacuk, BA

Co-Editors

Meghan Boulanger  Katrina Squazzin Katrina Crocker

President (CLLSS)

Vice-President (CLLSS) Christina Frolova Faculty Liaison

Stacy Douglas, PhD

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T able of C ontents

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Editorial

Aboriginal Youth Gangs in Canada:

" Origins of a Growing Trend   - Josh Lelievre

The Changing Scope of Punishment: Medicalization as a Means of Control  - Christopher Villeneuve

Recognition and Redress: The Rule of Law and Aboriginal SelfDetermination  - Isabelle Crew

" 27

The Colour of the Law: An Analysis of Police Discrimination in Canada  - Jason Worobetz

" 34

The Brain May Step Down: Neuroimaging and Criminal Law  - Desiree Duplessis  -

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E ditorial

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" It has been a pleasure to work alongside my co-editors, Meghan Boulanger and Katrina Squazzin, and with all of those students who submitted their work for potential publishing this Fall. It is through these works that we, as an Editorial Board, have been privileged to expand our critical thinking through the unique areas of interest of the Carleton student body.

" This edition of the CUJLS is composed of a riveting collection of lawrelated articles that reflect those topics central to the social and political fabric of Canada. The articles included in this edition stimulate deep critical thought on issues affecting Canadian prisons, courts, indigenous communities, and the freedom of marginalized groups. Through a discussion of these topics, the articles speak to this issue’s title, In Its Majestic Equality, which draws on Anatole France’s captivating words that address the rule of law and justice: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread”. In deliberating the article topics, the flaws embedded in the Canadian social and political landscape become increasingly evident. Let us use this realization to provide us with direction to lead positive change.

" It is my hope that, in reading the articles produced by these students, you will be inspired to explore new scholarly areas and delve into the thoughtprovoking world of legal studies research.

Carly Jacuk  Editor-in-Chief

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Aboriginal Youth Gangs in Canada:   Origins of a Growing Trend ——

By Josh Lelievre

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It is evident that Aboriginal peoples in Canada

processes and systems creates the necessary characteristics for the production and reproduction of Aboriginal youth gangs. The goal of this analysis is to provide a policy solution to the atypical1 and often extreme criminal aspects associated with Canadian Aboriginal youth gangs. In a 2003 report presented to the Standing Committee on Social Affairs, Science, and Technology, Jeffrey Cyr, the executive director of the National Association of Friendship Centres, offered the following assessment of Aboriginal people in urban centres: “What is life like for Aboriginal peoples living in Canadian cities? […] Our youth are challenged to decide wether to join gangs or seek a better, more wholesome life”.2 This choice is very much one-sided: how many Aboriginal youth can realistically attend school or work at a stable job, for instance? According to current research, very few can. Driven by desperation and living in a community immersed in cycles of violence, addictions, and poverty, many of these youth have very little choice.3 Often seen as a way to escape remote reserves, urban migration is an attractive option to many youth, especially for Aboriginal women who may not have a choice at all.4 The net

face a broad spectrum of socio-economic issues, many of them are a legacy of decades of official and unofficial persecution. For this reason, Aboriginal youth in particular often have difficulty effectively participating in Canadian civil society or even fully identifying with their own civil societies. Research shows that Aboriginal people are significantly overrepresented in the Canadian criminal justice system, an overrepresentation particularly acute among Aboriginal youth. In effect, they have been marginalized to such an extent that many individuals who identify as Aboriginal no longer possess a clear self-identity. The resulting lack of agency and cognitive dissonance has produced a significant lack of social currency in the interrelationships among Aboriginal communities. The prevalence of Aboriginal youth gangs is a manifestation of the marginalization process and is a product of the interaction of Aboriginal actors within two systems. This includes the Canadian socioeconomic system and legal framework, and the effects resulting from large-scale urban migration. Here, social disorganization is produced within urban Aboriginal communities. The interaction of these

Jana Grekul & LaBoucane-Benson, Patti “An Investigation into the Formation and Recruitment Processes of Aboriginal Gangs in Western Canada” (Prepared for Public Safety Canada, 2006) at 3. 2 Senate of Canada. Standing Senate Committee on Social Affairs, Science, and Technology “In From the Margins, Part II: Reducing Barriers to Social Inclusion and Social Cohesion” (Senate of Canada, 2013) at 68. 3 Grekul, et al., supra note 1 at 2; Senate of Canada. Senate Committee on Aboriginal Peoples “Urban Aboriginal Youth: An Action Plan for Change” (Senate of Canada, 2013). 4 Aboriginal women in particular are highly overrepresented and subject to some of the most appalling cases of discrimination. Mark Totten, “Preventing Aboriginal Youth Gang Involvement in Canada: A Gendered Approach” (Prepared for Aboriginal Policy Research Conference, 2009).

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result of urban migration patterns are pockets of Aboriginal communities and neighbourhoods within large Canadian urban centres. In effect, urban migration ghettoized Aboriginal communities, as they are disproportionately represented in poorer neighbourhoods. For example, in 2008, Aboriginals comprised 31% of the total population of Winnipeg, Manitoba in low-income neighbourhoods.5 The scope of Aboriginal urban migration becomes clear when examining empirical data. The 2006 Canadian Census indicates that slightly more than 50% of Aboriginal persons live in urban centres. Meanwhile, Larry Cachene, Chief of the Yellow Quill First Nation in Saskatoon Tribal Council, stated in the same report that there are “2,700 band members […] on our list and 800 of them are in the community while 1,600 are off the reserve”.6 The process of urban migration is particularly acute among Aboriginal youth. According to the 2006 Canadian Census data, 28% of all Aboriginal people in urban centres are under fifteen years of age, compared to 17% of non-Aboriginal youth.7 The report also notes that Aboriginal youth between the ages of 15 and 24 were twice as likely as non-Aboriginal people of equal age to be unemployed, which contributes to a sense of “nothing to live for” and “nothing to die for” in the Aboriginal youth population.8 Therefore, urban migration becomes a necessary process in the creation of youth gangs, which provide the social and material resources to survive in neighbourhoods that are much more likely to contribute to a low socio-economic standing. Daniel Sansfacon, a director of Public Safety Canada, summed up the issue well when he testified that:

“[t]heir parents and other family members and their circle of friends live in similar conditions in the same city neighbourhoods or another nearby. These similarities of ‘living in poverty’ and ‘living in urban areas’ combined with a relatively long history of social exclusion, oppression, discrimination, and shame are the indicators for the development of habit [of joining youth gangs]”.9 Experts representing two different Aboriginal organizations reiterated in their testimonies (included in the report) that low income Aboriginal neighbourhoods experiencing significant levels of urban migration, produce an environment that contains the necessary characteristics for Aboriginal youth gangs.10 These findings suggest that the problems of Aboriginal youth criminality are, in part, a product of rapid urbanization effectively breaking down social cohesion and social currency within disadvantaged neighbourhoods and therefore provide the necessary conditions for youth gangs to thrive. Since a clear link between urban migration and Aboriginal youth gangs is apparent, the next line of inquiry is why does urban migration, in tandem with the broad set of pre-existing socio-economic conditions, lead to a breakdown in social cohesion among Aboriginal communities? The theory of social disorganization, put forth by scholars Clifford Shaw and Henry D. McKay in the 1940s to explain high crime rate in low-income areas of Chicago, Illinois neighbourhoods, is well suited to provide a useful answer to this line of inquiry. This theory essentially argues that it is not the individuals themselves that fuel criminality, Rather, the lack of social cohesion exacerbated by poor socio-economic

Robin T. Fitzgerald & Carrington, Peter J., “The Neighbourhood Context of Urban Aboriginal Crime” (50 Canadian J Criminology & Crim Just 5, 2008). 6 Senate Committee on Aboriginal Peoples supra note 3 at 68. 7 Ibid at 69. 8 Grekul, et al., supra note 1 at 3. 9 Ibid at 72. 10 Senate Committee on Aboriginal Peoples supra note 3 at 73.

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status and degraded public health creates a lack of self-regulation in the neighbourhoods. In effect, an environment that is transient, poor, and undereducated prevents the community from establishing formal mechanisms that enforce the norms and values in which affluent, stable neighbourhoods take for granted. This theory has clear application to Aboriginal neighbourhoods and serves as an excellent theoretical tool to explain the manifestation of Aboriginal youth gangs. However, several scholars have argued that this theoretical framework works only to a point: as the levels of neighbourhood crime in Aboriginal communities begins to plateau, so do the factors that contribute to the breakdown in social cohesion. This has the effect of making the theory of social disorganization an attractive but limited method of explaining the effect of urban Aboriginal neighbourhoods and the prolific spread of Aboriginal youth gangs.11 In addition, a theoretical model which effectively incorporates the micro-social effects (discussed in the last section of the analysis) and explains the dynamics between urban migration and ghettoized neighbourhoods (characterized by a lack of social cohesion) is laid out. This model can be used to help explain the origins of Aboriginal youth criminality and gang participation and violence. As actors constructed in socially disorganized neighbourhoods, Aboriginal youth are taught by the members of their respective neighbourhoods (or are

conditioned by negative interactions) to be distrustful of agents of the state. As a result, many Aboriginal youth have adopted an “us-against-them” mentality that contributes to further interactional friction. Ironically, these resistances and aversions are not always a conscious choice, as noted by several scholars.12 Additionally, many forms of polarizing and systemic cultural missteps can occur: false confessions may be given for a number of reasons, including a lack of understanding of the law and legal rights or due to the Aboriginal culture norm of openly taking responsibility for one’s actions in the face of an elder. Alternatively, there may be significant language barriers that can disrupt due process. This is offset by various programs currently in place that attempt to contextualize Aboriginal criminality and provide consideration to unique mitigating factors and sentencing options. However, these are imperfect solutions with very narrow applicatory scopes, and have yet to make a significant impact on the issue of overrepresentation of gang membership.13 Therefore, changing the structural, systemic issues may bring some effective net gains from a punishment or “tough on crime” policy perspective but will ultimately do nothing to prevent youth gangs. Arguably, the most counterproductive interaction between Aboriginal youth and law enforcement is the incarceration of Aboriginal youth gang members.14 Many scholars, experts, and governmental commissions argue that it merely reinforces gang

Steven F. Messner & South, Scott J., “Crime and Demography: Multiple Linkages and Reciprocal relations” (26 Annual Review of Sociology 83, 2000). 12 Mark Totten, “Aboriginal Youth and Violent Gang Involvement in Canada: Quality Prevention Strategies” (institute for the Prevention of Crime, 2009). 13 Savvas Lithopoulos & Ruddell, Rick, “Policing isolated Aboriginal communities: perspectives of Canadian officers” (34 Policing: An International Journal of Policing Strategies & Management 3, 2011); Brians R. Pfefferle, “Gladue Sentencing: Uneasy answers to the Hard Problem of Aboriginal OverIncarceration” (32 Man LJ, 2008). 14 Many different policy approaches have been taken to prevent or divert Aboriginal youth from incarceration. There have been varying degrees of success, but nonetheless remain largely ineffective, as supported by the current empirical evidence. See Jana Grekul & Sanderson, Kim, “I thought people would mean and shout” in “Hobbema Community Cadet Corps: a response to youth gang involvement?” (14 J Youth Studies, 2011).

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associations and serves as an active recruiting ground for new members. Jana Grekul and Patti LaBoucance-Benson, both prolific writers on the subject of Aboriginal justice, elucidate this position in their research (2006), stating that “[the] street gangprison gang link is one that is pronounced for Aboriginal gangs: Aboriginal overrepresentation in the prison system is linked to the increase in numbers and size of Aboriginal gangs in Canada”.15 This is a compelling statement that is corroborated by numerous other researchers including Mark Totten, another prominent scholar, who argues that incarcerating gang members has no effect on future criminal behaviour;16 in fact, other research suggests that it increases the chance of re-offending and solidifying gang ties.17 In addition to addressing the current system’s inability to effectively deal with gang-related crime in general (let alone the intensely complex issue of Aboriginal youth gangs), this research certainly demonstrates that the current Canadian criminal justice system encourages overrepresentation of Aboriginal persons and, in particular, Aboriginal youth. As noted, this is accomplished through systemic discrimination and poor policy choices which have the effect of ensuring a continued self-reinforcing cycle of involvement in criminality and gangs. Moreover, the general theme of institutional discrimination is further supported by the argument that there is a lack of a clear, linear jurisdictional hierarchy. In effect, the three levels of government cannot, or will not, take responsibility for their

citizens. Together with governmental apathy, this contributes to considerable blockages in funding for programs that would help deal with the foundational issues of Aboriginal youth gangs in Canada. For example, the most important Canadian legal document, The Constitution Act (1982), explicitly states in section 91 (24) that the federal government is responsible for “Indians and Lands reserved for Indians”.18 However, according to a report prepared for the House of Commons in 2012, the federal government’s current policy is one where, “…responsibility - with a few exceptions - extends only to First Nations people resident on-reserve, while provincial governments have a general responsibility for Aboriginal peoples living offreserve. Neither the federal nor the provincial governments have accepted any special responsibility for the Metis and non-status Indian population”.19 The federal government is therefore eschewing their constitutionally mandated duty to provide governmental services (including a proper criminal justice system) to Aboriginal communities. This inaction has the effect of indirectly contributing to the problem. In a report that was released fourteen years ago, the Royal Commission on Aboriginal Peoples (RCAP) observed that the jurisdictional issue “is the most basic, current form of governmental discrimination”. The RCAP recommended unblocking this lack of jurisdictional responsibility by action in the courts and observed that, until this discriminatory practice has been changed, no other

Grekul et al., supra note 1 at 3. Steve Aos, Miller, Marna & Drake, Elizabeth, “Evidence-Based Public Policy Options To Reduce Future Prison Construction, Criminal Justice Costs and Crime Rate” (Washington State Institute for Public Policy, 2006). 17 Brent B. Benda & Tollet, C. L., “A study of recidivism of serious and persistent offenders among adolescents - A review, current status, and future directions” (27 J of Crim Just 2, 1999). 18 Canadian Charter of Rights and Freedom, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11. 19 House of Commons. Standing Committee on Justice and Human Rights, “The State of Organized Crime” (House of Commons, 2012) at 67. 16

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remedial measures can be as effective as they should be.20 Therefore, these aspects of the criminal justice system work to undermine Aboriginal communities and reproduce the values and norms that are associated with the development of Aboriginal youth gangs.

Grekul, Jana & Patti LaBoucane-Benson, “Aboriginal Gangs and Their (Dis)placement: Contextualizing Recruitment, Membership, and Status” (50 Canadian J Criminology & Crim Just 59, 2008). Grekul, Jane & Patti LaBoucane-Benson, “An Investigation into the Formation and Recruitment Process of Aboriginal Gangs in Western Canada” (Prepared for Public Safety Canada, 2006). Grekul, Jana & Kim Sanderson, “I thought people would be mean and shout” In “Introducing the Hobberma Community Cadet Corps: a response to youth gang involvement?” (14 J Youth Studies 1, 2011). Lithopoulos, Savvas & Rick Ruddell, “Policing isolated Aboriginal communities: perspectives of Canadian officers” (34 Policing: An International Journal of Police Strategies & Management 3, 2011). Mellor, Brian, “Youth Gangs In Canada: A Preliminary Review of Programs and Services (Prepared for Public Safety and Emergency Preparedness Canada & Canadian Research Institute for Law and the Family, 2005). Pfefferle, Brian R. “Gladue Sentencing: Uneasy answers to the Hard Problem of Aboriginal OverIncarceration” (32 Man LJ, 2008). Standing Committee on Aboriginal Peoples, “Urban Aboriginal Youth: An Action Plan for Change” (Senate of Canada, 2003). Standing Committee on Social Affairs, Science, and Technology “In From the Margins, Part II: Reducing Barriers to Social Inclusion and Social Cohesion” (Senate of Canada, 2013). Standing Committee on Justice and Human Rights, “The State of Organized Crime” (House of Commons, 2012).

The problems facing the Aboriginal community are, without a doubt, daunting: the sheer scope of broad social issues is difficult enough to attempt to navigate and analyze when it is comprised of the simplest problems. However, policymakers also have to consider this complex web of interrelated issues, such as the lack of participation in the Canadian political economy that intersects with broader social issues. In addition, the very institutions that nonAboriginal Canadians rely on to maintain a legal and social order are arguably discriminatory or outright negligent in providing the same order to Aboriginal communities . This analysis isolates the key factors that underly the growing problem of Aboriginal youth gangs in Canada, particular in relation to urban migration. Together with the identified failings at the social and institutional level, this analysis produces a comprehensive framework that could provide potential resources for effective and relevant policy options by identifying underlying tensions on all levels of analysis, therefore producing more effectively targeted policies.

SECONDARY SOURCES

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Fitzgerald, Robin T. & Peter J. Carrington, “The Neighbourhood Context of Urban Aboriginal Crime” (50 Canadian J Criminology & Crim Just 5, 2008).

Ibid.

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Totten, Mark, “Aboriginal Youth and Violent Gang Involvement in Canada: Quality Prevention Strategies” (2 Institute for the Prevention of Crime, 2009). Totten, Mark, “Preventing Aboriginal Youth Gang Involvement in Canada: A Gendered Approach” (Prepared for Aboriginal Policy Research Conference, 2009).

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The Changing Scope of Punishment: Medicalization as a Means of Control ——

By Christopher Villeneuve

Within Canada's current penal system, there are

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large numbers. This medication is used as a way to sedate offenders and ensure the security of the prison. This over-prescribing of medication within prisons shows a movement away from rehabilitative correctional practice and towards more conservative methods based on incapacitation and retribution. As a result of this, prisons are increasingly being used as temporary housing and detox centres, often treating social marginalization as a psychological problem. Nonetheless, the Canadian Correctional Service (CSC) claims to take a rehabilitative approach to corrections. Correctional programming (that models this rehabilitative approach) is said to be offered to offenders in institutions throughout the country; however, the programming is not equally available across institutions. While the “primary purpose of prison programs is to reduce the likelihood that an individual will commit an offence after being released from prison,”3 it appears that there is often a movement away from rehabilitative treatment as medicalization is becoming more common in prisons; particularly for female offenders. Kilty states that “87 percent of the women imprisoned in Canadian federal correctional institutions…have medication orders for both prescription and over-the-counter medications.”4 The issue with this is that many of these female offenders are misdiagnosed, and are usually simply “experienc[ing] distress (often conceptualized by psy

many different forms of punishment and control that are utilized to deal with offenders. With the growing business of psycho-pharmaceuticals, medication is being over-prescribed among the general population for symptoms of perceived psychological disorders. This same notion is also evident in prisons: offenders are often given medication in order to control prisoners and make them compliant.1 This process has been defined as medicalization, which is the use of medication to suppress psychological symptoms that may be present in an individual. Jennifer Kilty explains this process of medicalization as “a process through which ‘an entity’ that is not ‘ipso facto a medical problem’, is responded to as a kind of illness.”2 Within the correctional system in Canada, psychotropic medication – that is, medication used to treat psychological disorders – has been increasingly relied on as a treatment strategy for offenders. With a great number of offenders with mental disorders being housed in prisons in Canada, it appears there is a need for medicalization. However, Kilty argues that medicalization is being used as a form of social control for the inmates, rather than a method of treatment, with offenders often receiving medication for symptoms they do not have. Offenders are diagnosed with psychological disorders and prescribed psychotropic medication in increasingly

Jennifer Kilty, “‘It’s like they don’t want you to get better’: Psy control of women in the carceral context” (22(2) Feminism & Psychology, 2012). 2 Ibid at 163. 3 Shoshana Pollack, “Therapeutic Programming as a Regulatory Practice in Women’s Prisons” In Gillian Balfour & Elizabeth Comack, eds, Criminalizing Women: Gender and (In)Justice in Neo-Liberal Times (Black Point: Fernwood Publishing, 2006) at 239. 4 Kilty, supra note 1 at 163.

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vocabulary as depression and anxiety) and anger when they enter the system [and are] difficult to manage or mad, both of which sanction treatment with psychotropic medication in carceral settings.”5 Since these feelings of distress and anger should be expected when entering a prison institution, it is unreasonable for these ‘symptoms’ to be diagnosed as a wrongful response to this major life change. Provincial institutions have virtually no rehabilitative programming and sparse therapeutic counselling, “thus becoming little more than holding cells for women who cycle in and out.”6 Offenders may request to see a psychiatrist, however a lack of provincial funding create long wait times, and psychotropic medication is often used as the main form of intervention.7 The correctional mandate puts primacy on the security of the prison, prioritized above the therapeutic care of offenders.8 Thus, the medicalization of criminalized women is used as a form of control rather than a form of treatment. Correctional policy increasingly puts a priority on the security and stability of the prison over the therapeutic care of the offenders (which should be paramount), showing a movement away from a rehabilitative approach to punishment. Kilty argues that “while correctional discourses suggest that rehabilitative and treatment efforts attempt to manage health through the development of individual responsibility, they actually create new methods of intervention.”9 This suggests that the correctional mandate is guided more by what Garland calls a ‘penal-welfarism modality’. He explains that this notion has two parts: the penal mode and the welfare mode. The penal mode has become more punitive,

expressive, and focused on the security of the institution; while the welfare mode includes more conditions and is more offence-centred and risk conscious.10 This move towards greater security and stability within institutions shows that prisons are deviating from the rehabilitative purposes that they claim to have. With less treatment, it appears that “the prison is used today as a kind of reservation, a quarantine zone in which purportedly dangerous individuals are segregated in the name of public safety”.11 Rather than being treated as clients in need of support, offenders are often seen as risks to be managed. This increased desire for security, with less focus on therapeutic programming and rehabilitation, help to explain the increased medicalization of offenders. Some scholars argue that, after the deinstitutionalization of mental illness, prisons became a new place to house people in need of mental health services. However, despite this observation, there is not necessarily a need for a disproportionate amount of offenders to be treated with psychotropic medication. The medication that offenders receive while incarcerated can be seen as a form of controlling the offenders’ behaviour. Some suggest that “medicine has always functioned as an agent of social control, especially in attempting to ‘normalize’ illness and return people to their functioning capacity in society.”12 Psychotropic medication acts to sedate offenders by indirectly making them drowsy and lethargic, preventing them from acting out while incarcerated. Additionally, since many incarcerated offenders in Canada are also marginalized by poverty, homelessness, and

Kilty, supra note 1 at 164. Ibid. 7 Ibid. 8 Pollack, supra note 2 at 242. 9 Kilty, supra note 1 at 166. 10 Ibid at 170. 11 Ibid at 176. 12 Kilty, supra note 1 at 163. 6

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addiction, prisons often serve as temporary detox centres and shelters for these marginalized people. Correctional institutions and treatment programs interpret this social marginalization as a psychological problem, resulting in an high frequency of socially marginalized people being medicated and subjected to a greater degree of control.13 While the correctional platform seems to advocate rehabilitation and individual responsibility, in practice it is more focused on controlling the offenders through the aforementioned means. The use of psychotropic medication to treat offenders has certain implications on the Canadian Correctional Service’s rehabilitative rhetoric. In the case of female offenders, “the Correctional Service of Canada considers its role to be one of presenting women with ‘responsible choices’ and of helping direct women to be able to govern themselves.”14 While this is the theory behind the CSCs rehabilitative rhetoric, in practice a much different picture can be seen. According to Kilty, when offenders do not behave the way prescribed by the correctional service, they are often disciplined through the use of medication and forms of punishment that can violate their human rights.15 Instead of helping the offenders recognize what issues have led them to commit a crime and help them overcome those issues (as rehabilitation would suggest), prisons act as a place to house inmates for a given period of time, putting less focus on solving those issues and more focus on controlling the offenders’ behaviour. According to Garland, “they focus more upon issues of crime control than upon individual welfare…the immediate point is no longer to improve the offender’s selfesteem, develop insight, or deliver client centred services, but instead to impose restrictions, reduce crime, and protect the public.”16

The CSC is supposed to be focused on the rehabilitation of offenders rather than punishment and control and, therefore, it should act differently in the way that it treats incarcerated offenders. Since medication is used as a method of social control to secure penal institutions from offenders, correctional practice can be seen to be moving away from its rehabilitative mandate. As mentioned above, medicalization is defined as the use of medication to suppress psychological symptoms that may be present in an individual. This is being applied as a form of punishment, where offenders are given medication as a way to suppress their behaviour and keep them under control. With the correctional system moving away from its rehabilitative foundation of promoting empowerment and self-regulation towards penal-welfarism, offenders are being seen less as treatable individuals and more as individuals with malignant behaviour that needs to be controlled. CSC’s movement towards retributive and incapacitative aims is clear and, as more behaviours become classified as psychological disorders, the pharmaceutical treatment of these disorders will likely continue to increase. This may lead to an even greater movement towards social control as an aim of incarceration and a greater movement away from rehabilitation.

SECONDARY SOURCES

Foucault, Michel, “The body of the condemned” In Michel Foucault, ed, Discipline and Punish: the Birth of the Prison (New York: Vintage Books, 1977) 167-192. Garland, David, “The New Culture of Crime Control” in David Garland, ed, The Culture of Control: Crime and Social Order in Contemporary

Pollack, supra note 2 at 240 Kilty, supra note 1 at 179 15 Kilty, supra note 1 at 178 16 Garland, supra note 9 at 179 14

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Society (Chicago: University of Chicago Press, 2001) 167-192. Kilty, Jennifer, “'It's like they don't want you to get better': Psy control of women in the carceral context” (2012) 22(2) Feminism & Psychology 167-182. Marin, Andre, “The Code” (Toronto: Office of the Ontario Ombudsman, 2013). Pollack, Shoshana, “Therapeutic Programming as a Regulatory Practice in Women’s Prisons” in Gillian Balfour & Elizabeth Comack, eds, Criminalizing Women: Gender and (In)Justice in Neo-Liberal Times (Black Point: Fernwood Publishing, 2006) 236-249. Sykes, Gresham, “The Pains of Imprisonment” in Gresham Sykes, ed, The Society of Captives: Study of a Maximum Security Prison (Princeton: Princeton University Press, 1958) 63-83.

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Recognition and Redress: The Rule of Law and Aboriginal Self-Determination ——

By Isabelle Crew

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The preamble to the Canadian Charter of Rights

breakdown has resulted in Aboriginal nations, such as the Haudenosaunee (Six Nations Iroquois), challenging the authority of both the law and the sovereignty of the Crown. Notable examples include the historic claims for external sovereignty and recent confrontations regarding land claims in Caledonia, Ontario. The aforementioned factors have given rise to legitimate claims for meaningful self-determination as redress. Meaningful self-determination refers to the ability of Aboriginal peoples to control their own cultural definition and preservation, and to ensure their own economic self-sufficiency and political autonomy; all of which have been stripped away through the recurring breakdown of the rule of law and not enabled by the current self-government model employed by the Canadian government. This breakdown in the rule of law does not only call into question the legitimacy of the origins of Crown sovereignty, but also the current applications of its laws for Aboriginal peoples. Despite the Charter claims that Canada is founded upon the principles of the rule of law, the initial assertion of Crown sovereignty and its legal justification is contrary to the rule of law.5 This initial illegitimate assertion of sovereignty acts as a precursor to centuries of abuse of the rule of law by the Crown in its relationship with Aboriginal peoples. As outlined previously, one of the fundamental principles of the

and Freedoms (Charter) plainly states that “Canada is founded upon principles that recognize the supremacy of God and the rule of law”.1 Though Canada is a state which claims to be founded on the principle of the rule of law, it is supported by historic and continuing applications of law against Aboriginal peoples that are contrary to this fundamental principle.2 The rule of law mandates equality, fairness, and access to the law, and that this equitable application of the law remains supreme over all state actions. It is meant to define equitable interactions between the state, the law, and the people of Canada.3 However, these principles have not been upheld by the Crown, which calls into question their legitimacy — particularly for those people in which the failure to uphold the rule of law has had the most dire consequences. For Aboriginal peoples, the rule of law has never defined their relationship with the colonialist power of the Crown, as the inequitable application of legal principles have been used as a tool of acquisition, oppression, and control, dating back to first contact between the Crown and the various Indigenous nations of Canada. This indicates a severe and profound breakdown in the rule of law.4 There has been a recurring breakdown in the rule of law for Aboriginal peoples that began at first contact and has continued for centuries. This 1

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 2 Grace Li Xiu Woo, Ghosts Dancing with Colonialism: Decolonization and Indigenous Rights at the Supreme Court of Canada (Vancouver: UBC Press, 2011) at 21. 3 Peter W. Hogg & Cara F. Zwibel, “The Rule of Law in the Supreme Court of Canada” (2005) 55 UTLJ 715 at 715. 4 John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 6. 5 Charter, supra note 1.

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rule of law is that the law is applied equitably. Yet, at the assertion of sovereignty over North America by the Crown, the legal rationale for sovereignty over the land was not applied equitably to both groups. This initial breakdown in the rule of law has led to current claims by Aboriginal nations (for example, the aforementioned claims of the Haudenosaunee) that the sovereignty of the Crown lacks legal legitimacy. In examining the international legal doctrines used at the time of assertion of sovereignty in conjunction with more recent statements by the Supreme Court of Canada, the illegitimacy of the Crown’s initial claims to sovereignty serves as the beginning of the breakdown of the rule of law. At the time of the Crown’s assertion of sovereignty, it relied on the international laws of sovereignty and the acquisition of territory. Many of these international legal doctrines have since been entrenched in customary international law and affirmed by the International Court of Justice.6 Colonialism was given legitimacy through international legal doctrines, created by scholars such as Hugo Grotius and Francisco de Vitoria in the 16th century. These doctrines outline the means through which legitimate sovereignty can be exerted over territory. In this case, the principle doctrines of conquest, occupation, and cession are the basis for the legal rationale behind the assertion of sovereignty by the Crown.7 However, given that the Crown purported that colonization is a legal practice, the rule of law should have been applied in determining whether the Crown had a legitimate claim to any of

the aforementioned means of acquisition. Had these principles of international law been applied equitably to all parties involved, as would be demanded by the rule of law, the Crown would have had no legitimate claim to sovereignty over the lands of the Indigenous nations of North America.8 The first legal doctrine to be examined is the law of conquest.9 Though conquest as a means of acquisition of territory has not been valid since the Kellogg-Briand Pact, at the time of colonization in North America it was considered a legitimate means of acquiring territory and asserting sovereignty.10 For this reason, it is an important consideration in the legality of the Crown’s sovereignty. The doctrine of conquest requires an assertion of effective sovereign control over territory through military conquest, requiring both actual possession (factum) and intention to take over (animus).11 John Borrows points out in his book, Canada’s Indigenous Constitution that, while many Canadians believe that Aboriginal peoples lost sovereignty due to conquest, this belief is contrary to the law.12 As a matter of law, the destruction of Aboriginal lives and communities by the Crown does not indicate conquest. Conquest as a means of acquisition of sovereignty requires a legal assertion of conquest, which never occurred in any form—treaty or otherwise.13 This was affirmed by the Supreme Court of Canada (SCC) in Haida Nation v. British Columbia [2004] which states that, “Canada’s Aboriginal Peoples were here when Europeans came, and were never conquered”.14 Therefore, with the Crown’s failure to establish

Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007) at 12. 7 Borrows, supra note 4 at 12. 8 Ibid at 14. 9 Anghie, supra note 6 at 83. 10 Malcolm Shaw, International Law, 6th ed (Cambridge: Cambridge University Press, 2008), at 501. 11 Ibid. 12 Borrows, supra note 4 at 19. 13 Ibid. 14 Haida Nation v British Columbia, 2004 SCC 73, [2004] 3 SCR 511 at 25 [Haida Nation].

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North America to be terrae nullius.19 Secondly, in the case of R v. Bernard [2005] the SCC held that, at the time of the assertion of sovereignty, North America was not treated by the Crown as terrae nullius, noting that the Court had consistently recognized the factual and legal existence of aboriginal occupation prior to the assertion of sovereignty.20 In R v. Van der Peet [1996], the Court further affirmed that prior to the arrival of Europeans, Aboriginal peoples lived on the land in distinct societies with their own practices, customs, and traditions.21 The court has taken these statements into consideration in the case of Aboriginal title, but has yet to speak to the illegitimacy of the Crown’s assertion of sovereignty. In this way, while progress has been made, the SCC continues to use an inequitable application of the rule of law in its relations with Aboriginal peoples. The Crown did not conquer the Aboriginal peoples, and the application of the doctrine of occupation is inequitable and reflects a breakdown in the rule of law. As such, the Crown would have had to achieve legitimate sovereignty through an equitable application of the doctrine of cession. This doctrine refers to a legal transfer of sovereignty over territory by agreement.22 While the Crown and Aboriginal Peoples did engage in treaties, none of these treaties involved Aboriginal peoples ceding to the sovereignty of the Crown or providing any other sort of recognition of the sovereignty of the Crown.23 As such, the Crown has no legal basis for a claim to sovereignty based on cession.

sovereignty through conquest, in order to establish legitimate sovereignty over North America and the Aboriginal peoples, it would have had to establish legitimate sovereignty through one of the other means of legal acquisition. The second legal doctrine through which the Crown can legitimately acquire sovereignty, according to international law, is through the doctrine of occupation. Assertions of sovereignty based on the doctrine of occupation is a means of establishing title over terrae nullius—land belonging to no one.15 Here, occupation can be used as a means of a legitimate assertion of sovereignty and acquisition of territory if the state in question can claim discovery of land belonging to no one.16 This is the principle legal doctrine that was used by the Crown to assert sovereignty over North America. Had the doctrine of occupation been applied equitably as required by the rule of law, it would have acknowledged that North America was not terrae nullius, and that the Crown had no legitimate claim of discovery.17 As such, the legal consequences that flow from discovery should be vested in favour of the Indigenous peoples of Canada, not the Crown.18 There are several legal arguments which indicate that the Crown’s use of the doctrine of occupation is illegitimate. It is firstly evidenced by the Royal Proclamation of 1763 (Royal Proclamation). The Royal Proclamation, through its legal assertion that Aboriginal title has existed and continues to exist, is proof of the fact that, at the time of the assertion of sovereignty, the Crown did not consider the land of 15

Shaw, supra note 10 at 492. Ibid at 503. 17 Borrows, supra note 4 at 17. 18 Ibid. 19 Royal Proclamation of 1763 (UK), reprinted RSC 1985, App II, No 1 [Royal Proclamation]. 20 R v Bernard, 2005 SCC 43 at 132, [2005] 2 SCR 220 [Bernard]. 21 R v Van der Peet, [1996] 2 SCR 507 at para 44, 137 DLR (4th) 289 [Van der Peet]. 22 Shaw, supra note 10 at 499. 23 Taiaiake Alfred, Peace, Power, Righteousness: An Indigenous Manifesto (Don Mills: Oxford University Press, 2009) at 82. 16

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This historic unequal application of the law in favour of the Crown over the Indigenous peoples of Canada is a distinct example of the breakdown of the rule of law for Aboriginal peoples. The international legal doctrines, which allow for the assertion of sovereignty, outline what can be considered legal basis for the assertion of sovereignty; yet none were fulfilled by the Crown in the Canadian context. Had these doctrines been applied within the ambit of the rule of law and acknowledged the equality of Aboriginal peoples, it would be evident that Indigenous peoples held and would continue to hold sovereignty. Due to this lack of legality, the sovereignty of the Aboriginal peoples was never truly extinguished.24 This continuing breakdown of the rule of law for Aboriginal peoples in Canada can be seen through the competing perceptions of positivist and naturalist understandings of legitimate law.25 Examination of both conceptions indicate that the application of the law by the Crown onto Aboriginal peoples is not valid. For positivists, the Crown is not a legitimate authority for Indigenous peoples given its illegitimate assertion of sovereignty over them. For naturalists, it is similarly not legitimate because the law fails to encompass the moral values of Aboriginal peoples or include them in its creation. Based on the lack of legitimacy of the Crown as a sovereign authority over their nations, Indigenous peoples continue to experience the recurring consequences of the

breakdown of the rule of law, and many are calling for redress as a result.26 While Aboriginal nations question the legitimacy of the legal imposition of Crown sovereignty due its lack of legal legitimacy, the Haudenosaunee have put forth the strongest claims against Crown sovereignty.27 One of the principle consequences of the continuing breakdown of the rule of law is that Aboriginal nations have legitimate claims that their sovereignty was never extinguished and can therefore put forth claims for selfdetermination.28 Representatives from the Haudenosaunee Confederacy have made repeated claims for self-determination to the international community, notably at the foundational meetings of the United Nations in San Francisco on April 13th, 1945, when the Confederacy made several submissions requesting the right to sovereignty.29 The Haudenosaunee tend to see themselves as independent in an international sense, viewing themselves as allies of Canada, rather than as Canadian citizens. Consequently, they do not see Canadian laws as valid within their communities.30 The Haudenosauneeâ&#x20AC;&#x2122;s claims are further supported by their historic relationship with the Crown: the Haudenosaunee were a distinct political unit prior to contact and, at first contact, had a nation-to-nation relationship with the Crown.31 This relationship is exemplified by the Two Row Wampum (1764), presented to the Crown by the Haudenosaunee in 1764, and is viewed as a treaty agreement between

Borrows, supra note 4 at 21. Shaw, supra note 10 at 49 (Positivist legal ideologies deem laws valid if it is dully passed and enacted, and is clear, consistent, and certain. Naturalist legal ideologies deem laws valid if it has some connection to ideals of justice and has moral substance arising from the moral order held internally by citizens). 26 Alfred, supra note 23 at 54. 27 Woo, supra note 2 at 122. 28 Ibid at 120. 29 Borrows, supra note 4 at 77. 30 Ibid at 76. 31 Woo, supra note 2 at 117. 25

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the two parties.32 This wampum, which has two parallel rows of purple beads on a white beaded background, symbolizes a parallel relationship between the Crown and the Haudenosaunee nation. This relationship is intended to unite two distinct nations with their own customs, laws, and practices.33 There is legal rationale behind the Haudenosaunee claim when considered in the context of the breakdown of the rule of law: if legitimate sovereignty was never established and the Haudenosaunee (and other nations like them) have been left out of the process of creating the law that applies to them, then the authority of the law is in question and the claims of the Haudenosaunee are valid.34 As such, nations like the Haudenosaunee have a legitimate legal basis for their claims of selfdetermination as redress, which is one of the primary consequences of the breakdown of the rule of law for Aboriginal peoples. It is this issue of the legality of self-determination as redress that will be discussed in the final section of this paper. The focus of reconciliation and redress for Aboriginal peoples has been through the process of self-government. This is a suis generis governmental model, meaning that this specific type of government is unlike any other within the Canadian constitutional framework. In this model, Aboriginal nations enter into negotiations with the Canadian government with respect to the autonomy their communities can be afforded. Negotiated powers extend into both federal and provincial jurisdictions, and may include the ability for Aboriginal groups to elect local

representatives to makes laws for the group—though the application of these laws and their relationship to Canadian laws is also a matter of negotiation. Yet, as Aboriginal scholars such as Taiaiake Alfred argue, in this self-government model, Indigenous peoples are still subject to state control in the exercise of their inherent freedoms and powers as there are important areas such as criminal law which are strictly nonnegotiable.35 Additionally, the self-government model still places Aboriginal groups in a subsidiary position to the Crown. While the model does provide greater autonomy, it still falls short of providing the independence and control to Aboriginal peoples. As such, the self-government model does not do enough to provide redress for Aboriginal peoples since the state control is predicated on a breakdown in the rule of law and centuries of illegal oppression. Instead of Canada’s tendency to narrowly frame selfdetermination by focusing on state recognition of Indigenous peoples as self-governing, the focus must be on sustainable discussions regarding the reclamation of indigenous territories, livelihoods, natural resources, and the regeneration of community languages and culturally based practices.36 International law defines self-determination in both the internal and external dimensions. External self-determination refers to secession and the international recognition of a new state.37 Conversely, internal self-determination refers to giving selfdetermining nations control of those rights that support and preserve indigenous cultural differences through independent political institutions within an existing nation-state.38 Other conceptions of internal

Ibid at 120. Ibid. 34 Jennifer Dalton, International Law and the Right of Indigenous Self-Determination: Should International Norms be Replicated in the Canadian Context? (Kingston: Institute of Intergovernmental Relations, 2005) at 10. 35 Alfred, supra note 23 at 82. 36 Jeff Corntassel, “Toward Sustainable Self-Determination: Rethinking the Contemporary IndigenousRights Discourse” (2008) 33 Alt J 105 at 107. 37 Dalton, supra note 34 at 7. 38 Ibid. 33

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self-determination emphasize the importance of cultural definition and preservation, economic selfsufficiency, and political autonomy, including selfgovernment arrangements and various forms of democratic, political, and representative rights.39 The realization of these rights does not require attempts at secession or absolute political independence and, increasingly, this is the type of redress being requested by Aboriginal peoples. In fact, it is argued that selfdetermination is a prerequisite to all other Aboriginal rights.40 There is a legal basis for the internal selfdetermination of Aboriginal peoples, found in the SCC ruling in Reference re Secession of Quebec (Secession Reference).41 While in this instance the Court was referring to the secession of Quebec, it made several statements in the judgment regarding the legitimacy of claiming self-determination under international and domestic law that can be applied to Aboriginal Peoples:42 The Court recognized the basis for self-determination as an inalienable right of international law. It noted not only its sources in treaty law, but also that the principle has acquired a status beyond convention, and is now considered a general principle of international law.43 The Court further affirmed that the ability of colonial peoples to exercise their right to self-determination by breaking away from the imperial power was indisputable.44 Should a case concerning Aboriginal selfdetermination (particularly in the internal sense) be brought before the SCC, this assertion made by the Court in Secession Reference would have to be accepted as applicable precedent. Though the Court did argue against Quebec having the right to self-

determination in the external sense, its argument was based on the fact that Quebec already had meaningful internal self-determination. The court held that Quebec exercised internal self-determination given that the population of Quebec occupies prominent positions within the government of Canada, freely makes political choices, and pursues economic, social, and cultural development.45 None of these aforementioned benefits are exercised by Aboriginal peoples. The Aboriginal peoples of Canada have a stronger legal claim for such benefits given their legal status as First Peoples and the illegitimate assertion of authority over them by the Crown, due to the breakdown of the rule of law. Indigenous peoples are still subjected to political and economical situations which resemble former vestiges of colonialism, such as minimal power within states, high levels of discrimination, and social injustice.46 The existence of this reality demonstrates the need for Indigenous peoples to have a right to selfdetermination as redress for these experiences which are the result of a breakdown in the rule of law. Selfdetermination for Aboriginal peoples would allow Indigenous communities to protect their rights, restore control over their lives, and rebuild the societies that were taken from them. The assertion of Crown sovereignty, and the conditions that this sovereignty subsequently placed upon the Aboriginal peoples of Canada, was contrary to the rule of law as an inequitable application of the law. This, in turn, has led to a legal order that is based on an illegitimate authority over Aboriginal peoples and a legal system that not only failed to reflect their cultural values, but also excluded them from the creation of the law itself.

Ibid. Woo, supra note 2 at 81. 41 Reference re Secession of Quebec, [1998] 2 SCR 217 [Secession Reference]. 42 Ibid at para 132. 43 Ibid at para114. 44 Ibid at para132. 45 Ibid at para 136. 46 Dalton, supra note 34 at 11. 40

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The breakdown in the rule of law for Aboriginal peoples has resulted in nations (such as the Haudenosaunee) challenging the authority of the law and the sovereignty of the Crown, giving rise to legitimate claims for meaningful self-determination. It is through this redress of meaningful selfdetermination that the Crown can restore the rights that this illegitimate application of the law has denied Aboriginal peoples for centuries.

Corntassel, Jeff, “Toward Sustainable SelfDetermination: Rethinking the Contemporary Indigenous-Rights Discourse” (2008) 33 Alt J 105. Dalton, Jennifer, International Law and the Right of Indigenous Self-Determination: Should International Norms be Replicated in the Canadian Context? (Kingston: Institute of Intergovernmental Relations, 2005). Hogg, Peter & Cara F. Zwibel, “The Rule of Law in the Supreme Court of Canada” (2005) 55 UTLJ 715. Shaw, Malcolm, International Law, 6th ed (Cambridge: Cambridge University Press, 2008). Woo, Grace Li Xiu, Ghosts Dancing with Colonialism: Decolonization and Indigenous Rights at the Supreme Court of Canada (Vancouver: UBC Press, 2011).

LEGISLATION

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Royal Proclamation, 1763 (UK), reprinted RSC 1985, App II, No 1.

JURISPRUDENCE

Haida Nation v British Columbia, 2004 SCC 73, [2004] 3 SCR 511. [Haida Nation] R v Bernard, 2005 SCC 43, [2005] 2 SCR 220. [Bernard] R v Van der Peet, [1996] 2 SCR 507, 137 DLR (4th) 289. [Van der Peet] Reference re Secession of Quebec, [1998] 2 SCR 217, 161 DLR (4th) 385. [Secession Reference]

SECONDARY SOURCES

Alfred, Taiaiake, Peace, Power, Righteousness: An Indigenous Manifesto (Don Mills: Oxford University Press, 2009). Antony, Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007). Borrows, John, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010).

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The Colour of the Law: An Analysis of Police Discrimination in Canada ——

By Jason Worobetz

Canada

is internationally regarded as a progressive, open, accepting, and tolerant nation: citizens enjoy the fundamental democratic principles of freedom and equality under the law. In theory, these principles are guaranteed to all Canadians through the most sacred Canadian document: the Charter of Rights and Freedoms (Charter).1 However, when one looks closely at the Canadian justice system as it operates today – specifically in terms of policing – it becomes clear that often these fundamental principles do not translate to reality. Discriminatory practices are commonplace in policing; resulting in costly damages to several of Canada’s marginalized populations through Charter infringements, such as the right to be secure against unreasonable search or seizure. These infringements are not only costly to the civil rights movement, but are also costly to taxpayers who forfeit millions of dollars for civil cases that are brought against police services.2 Nonetheless, both of these consequences have severe and enervating impacts on the fabric of Canadian society, specifically with regards to AfricanCanadian and Aboriginal communities.

———————————-  It is essential to begin with a working definition of two of the more prominent issues in policing today: racial profiling and carding. According to the Ontario Human Rights Commission (OHRC), racial profiling includes any actions that rely on stereotypes (rather than on reasonable suspicions) to single out an individual for greater scrutiny.3 In contrast to criminal profiling (a legitimate practice done by police to identify or narrow down potential suspects), racial profiling is not based on actual behaviour or objective information. Instead, racial profiling relies on stereotypical assumptions about particular minority groups. Charles C. Smith notes that racial profiling is rooted in the oppression faced by minority groups throughout the history of Canada, and how this oppression has lead to unwarranted scrutiny by law enforcement.4 Another form of discriminatory practice in law enforcement that has generated a large amount of public interest is that of carding. Carding occurs when the personal information of an individual in contact with law enforcement is recorded, whether or not an arrest or charge is made.5 Like racial profiling, carding disproportionately affects AfricanAmericans and other visible minority groups.

Canadian Charter of Rights and Freedoms, s 8, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 2

Jim Rankin & Patty Winsa, “Toronto Police sued by Black Action Defence Committee for $65M over racial profiling”, Toronto Star (16 November 2013) at para 6. Accessed from: <http://www.thestar.com/ news/ gta/2013/11/16/lawsuit_seeks_ 65_million_for_racial _profiling.html> 3

Ontario Human Rights Commission (OHRC), “What is racial profiling?” (Fact Sheet) (Toronto: Ontario Human Rights Commission (OHRC), 2003) at para 1. Accessed from: Ontario Human Rights Commission (OHRC) <http://www.ohrc.on.ca/en/what-racial-profiling-fact-sheet> 4

Charles C. Smith, Conflict, Crisis, and Accountability: Racial Profiling and Law Enforcement in Canada (Ottawa: Canadian Centre for Policy Alternatives, 2007) at 15. 5

Jim Rankin & Patty Winsa, “Toronto police chair Alok Mukherjee seeks big changes on carding”, Toronto Star (12 November 2013) at para 1. Accessed from: <http://www.thestar.com/news/gta/ 2013/11/12/ toronto_police_chair_alok_mukherjee_seeks_ big_changes_on_carding.html>

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The effects of racially biased police practices are immense and widespread. On an individual level, effects of racial profiling can range from psychological issues to financial and physical harm. Psychological issues can manifest in the form of posttraumatic stress disorder (PTSD) from a specific incident, or in the form of social damage that is felt from always being seen as a suspect by police services.6 Some of the more broad social effects that occur include targeting specific demographics and labelling behaviour that carries over to other contexts, such as the educational system. Other social effects include alienation and a diminished sense of citizenship in minority groups, and the widespread impact on the victim’s families, friends, classmates, and neighbours.7 Just as importantly, racial profiling and other discriminatory measures have profound impacts on the victim’s trust in the justice system, something that is essential to maintaining a fair and peaceful society. In their article, “The Usual Suspects: Police Stop and Search Practices in Canada”, Scot Wortley and Akwasi Owusu-Bempah discuss the increased prominence of racial profiling in Toronto, Ontario, and the impacts this practice has on the level of trust for the police. Wortley and Owusu-Bempah found that people who are repeatedly stopped by the police have less trust in the justice system, are less

likely to cooperate with the police, and are less likely to obey the law after the fact.8 Despite the reputation of the Canadian justice system, racially biased policing practices like racial profiling and carding still exist today and are prominent issues throughout Canada. In 2010, the Toronto Star ran an investigation on the contact cards filled out by police officers and found that 40% of individuals that were carded are ‘black’ and only 14% are ‘white’.9 Due in part to these alarming figures and the issue of discriminatory practices in general, the Black Action Defence Committee brought a classaction lawsuit for $65M in damages against the Toronto Police Service. The lawsuit alleged that the police had violated the equality rights of AfricanCanadian citizens that are guaranteed by the Charter.10 While the Toronto Police Service was facing this civil suit, the Toronto Police Board Chair, Alok Mukherjee, issued a report on the practice of carding where he made a total of 18 recommendations to the city’s police. Some of these recommendations included: purging personal data that is not collected for a legitimate investigation and only recording data with reason to do so, and immediately evaluating practices to ensure compliance with the Police Services Act and the Ontario Human Rights Code.11 Furthermore, Noa Mendelsohn Aviv of the Canadian

Ontario Human Rights Commission (OHRC), “Paying the price: The human cost of racial profiling“ (Toronto: Ontario Human Rights Commission (OHRC), 2003) at para 1. Accessed from: Ontario Human Rights Commission (OHRC) <http://www.ohrc.on.ca/en/paying-price-human-cost-racialprofiling/effects-racial-profiling> 7

Ibid at paragraph 5.

Scot Wortley & Akwasi Owusu-Bempah, “The Usual Suspects: Police Stop and Search Practices in Canada” (2011) 21 Policing and Society at 395-404. 9

Rankin, et al, supra note 3 at para 30.

Jim Rankin & Patty Winsa, “Toronto Police sued by Black Action Defence Committee for $65M over racial profiling”, Toronto Star (16 November 2013) at para 6. Accessed from: <http://www.thestar.com/ news/gta/ 2013/11/16/lawsuit_seeks_ 65_million_for_racial _profiling.html> 11

Rankin, et al, supra at note 3 at para 5-9.

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treatment of the 2008 case involving Stacy Bonds.15 Bonds, an African-Canadian woman, was stopped by police and subsequently let go when nothing alarming appeared after her identity was verified in the police database. When she asked the officers to provide a reason for stopping her, she was arrested for public intoxication and taken into custody. Videotapes show members of the police kneeing Bonds, pinning her to the ground, having her shirt and bra cut off with scissors by a male officer, and being left in the cell for hours in this state. The judge hearing her case threw out the charges and heavily criticized police for what he saw to be an indignity toward a human being.16 In response to this case, the Ottawa Police Service passed a new policy that forbid police from investigating anyone based on race and requiring officers to complete training in racial profiling.17 In another case, Chad Aiken, an 18-year old stopped by police in 2005 while driving his mother’s car, was allegedly punched and pinned to the ground by police after he was stopped due to what he perceived to be racial profiling. In this case, a partial settlement was reached due to a complaint registered with the OHRC.18 As a result of the Aiken case, the Ottawa Police Service is currently conducting a two-

Liberties Association (CCLA) also submitted a report to the Toronto Police Services Board that echoed the concerns reported by Mukherjee. In his report, Aviv called for the denunciation of practices like racial profiling and carding. Aviv found that it is unlawful to stop, question, detain, or search a person and record their personal information if it is not voluntary or if it occurs in the absence of a proper investigation.12 To act against this finding means infringing Charter rights that are crucial to the rule of law. Other recommendations included a policy that specifies when it is permissible for police to conduct stops, introduce new accountability measures, provide a copy of the information to the person in question, and obtain expert assistance, among others.13 Promisingly, the Toronto Star has reported that there has recently been a sharp decrease in carding by the Toronto Police Service.14 Similar to the Toronto Police Service, the Ottawa Police Service has also faced heavy criticism regarding its discriminatory practices. In December of 2010, members of several ethnic communities attended a Police Services Board meeting to discuss racial profiling. This was in response to the controversy surrounding the Ottawa Police Service’s 12

Canadian Civil Liberties Association (CCLA), “Submissions to the Toronto Police Services Board Meeting Nov 18, 2013” (Toronto: Canadian Civil Liberties Association (CCLA, 2013) at para 3. 13

Ibid at 5-37.

Jim Rankin & Patty Winsa, “Carding by Toronto police drops sharply”, Toronto Star (18 November 2013) at para 3. Accessed from: <http://www.thestar.com/news/gta/2013/11/18/carding_by_toronto_ police_drops_sharply.html> 15

CBC News. “Racial profiling addressed by Ottawa police.” (Ottawa: CBC News, 2010) at para 4. Accessed from: <http://www.cbc.ca/news/canada/ottawa/racial-profiling-addressed-by-ottawapolice-1.877113> 16

Dan Donovan & Claire Tremblay, “Police State or State of Police?” Ottawa Life Magazine (14 November 2011) at para 17. Accessed from: <http://www.ottawalife.com/2011/11/police-state-or-state-ofpolice/> 17

The Canadian Press, “Ottawa police introduce new racial profiling policy.” (Ottawa: CTV News, 2011) at para 4. Accessed from: <http://www.ctvnews.ca/ottawa-police-introduce-new-racial-profilingpolicy-1.684206> 18

CBC News, “Ottawa police racial-profiling settlement questioned.” (Ottawa: CBC News, 2012) at para 2. Accessed from: <http://www.cbc.ca/news/canada/ottawa/ottawa-police-racial-profiling-settlementquestioned-1.1199823>

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year study of traffic stops called the Traffic Stop Race Data Collection Project. Here, the intention is to determine if minority groups are being disproportionately targeted by these practices. On their official website, the Ottawa Police Service say that they are “committed to the principle that all persons have the right to live and work in an environment that is free of police action based on racial bias and racial profiling”.19 The project requires all police officers to record the race of the driver for all traffic stops in order to ensure bias-free policing, promote confidence in their agency, and gain recommendations to strengthen their service.20 While this initiative may seem promising, it has many flaws that render it a biased exercise. The biggest flaw in this response is the fact that the police are studying themselves. In “Oversight Unseen”, a report by André Marin (Ontario Ombudsman), investigators note that studies in the United States have been able to identify systematic issues through this sort of the internal police investigation.21 However, investigator bias, missing evidence, and inadequate documentation act to discredit internal police investigations. In the same report, Scot Wortley provides an analysis where he discusses the police’s self-investigation as a target of critics: “these are police investigating police…and they are either consciously or unconsciously going to be biased in favour of the police”.22 Thus, even though researchers from York University developed the questions, the Traffic Stop Race Data Collection Project has police investigating police via self-report

surveys which draws into question the issue of credibility. Further exacerbating the situation are the “war stories” among police that depict minorities as dangerous. This was one of the five elements that was found to contribute to a violent police culture in “Police Use of Force in Ontario: An Examination of Data from the Special Investigations Unit Final Report”.23 The fact that the police culture is partially characterized by racial views is compounded with the concern among academics that the police are unable to properly investigate themselves. Other areas of concern include that the projects do not necessarily mean that action is being taken. The initiative makes it clear that there is no accountability of individual officers since the results from the initiative are not being used for performance reviews.24 Additionally, the initiative only focuses on one aspect of police discrimination by only addressing race and not other marginalized members of society, such as the homeless or mentally ill. Despite the large amount of media attention focused on racial discrimination by police services, discrimination of other marginalized groups such as the homeless and people with mental illness is also a great concern for police agencies. In a study of homeless people in Toronto, Tanya Zakrison, Paul Hamel, and Stephen Hwang conducted a self-report study on the interactions between the homeless, the police, and the paramedics. They found that, of a sample of 160 shelter users, 61% had interacted with the police, 9% reported being assaulted, and only 69% were willing to call police in an emergency,

Ottawa Police Service, “Traffic Stop Race Data Collection Project” (Ottawa: Ottawa Police Service) at para 1. Accessed from: <http://ottawapolice.ca/en/community/diversitymatters/racialprofiling.aspx> 20

Ibid at 11.

Office of the Ombudsman of Ontario, “Oversight Unseen: Investigation into the Special Investigations Unit’s operational effectiveness and credibility” (Toronto: Office of the Ombudsman of Ontario, 2008) at 80. 22

Ibid at 95.

Donovan, et al, supra note 14 at 38.

Ottawa Police Service, supra note 17 at 22.

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demonstrating low levels of trust in the justice system.25 Another marginalized group that often interacts with the police in Canada are people with mental illness. In 2010, Terry Coleman and Dr. Dorothy Cotton called into question the training contemporary police officers receive with regards to the mentally ill. Coleman and Cotton note that interactions between people with mental illnesses and police have increased significantly in recent decades with some interactions having significant negative outcomes when force is used improperly.26 This phenomenon is a direct result of providing police with little or no mental health training in several jurisdictions across Canada. Coleman and Cotton call on police agencies to provide education and training to prepare police for interactions with the mentally ill. This training would focus on deescalating situations through awareness of symptoms and oral communication skills.27 To assist officers in dealing with the mentally ill, the Ottawa Police Service has taken a positive step by implementing a program where psychiatrists will ride-along with officers to assist in assessing mental health.28 The discussion of police discrimination in Canada is not complete without returning to the issue of racial discrimination and addressing the issues faced by Aboriginal peoples. In 1996, the Royal Commission

on Aboriginal Peoples (RCAP) was created to address Aboriginal issues at the time. The Report on Aboriginal Justice Issues concluded that the justice system was a failure for Aboriginals of Canada in all jurisdictions.29 The main reason for this is the difference in worldview between European Canadians and Aboriginal peoples in a number of areas, including justice.30 These issues persist today as demonstrated by a number of alarming statistics uncovered as part of a Juristat report. In this report, Juristat found that Aboriginal adults accounted for 22% of admissions to custody while only representing 3% of the general Canadian population. In Saskatchewan this number was higher: Aboriginals accounted for 81% of the admissions to provincial jails while representing only 11% of the general population.31 While these statistics are not solely the responsibility of the police, the police are the initial contact in the justice system and so the disproportionate incarceration rates will inevitably be traced back to them. Discrimination by police in Canada has been found to cause great harm to the fabric of Canadian society. These discriminatory measures undermine the legal rights of fellow Canadians as they often strip them of the presumption of innocence and target them on discriminatory grounds. In Toronto, these effects have been shown to be costly to taxpayers, and the

Tanya L. Zakrison, Paul A. Hamel & Stephen W. Hwang, “Homeless people’s trust and interactions with police and paramedics” (2004) 81 J Urban Health 596. 26

Mental Health Commission of Canada (MHCC), “Police interactions with persons with a mental illness: police learning in the environment of contemporary policing” (Calgary: Mental Health Commission of Canada (MHCC), 2010) at 6. 27

Ibid at 75.

CBC News. “Pilot project teaming police, psychiatrists made permanent.” (Ottawa: CBC News, 2013) at para 2. Accessed from: <http://www.cbc.ca/news/canada/ottawa/pilot-project-teaming-policepsychiatrists-made-permanent-1.1387929> 29

Royal Commission on Aboriginal Peoples (RCAP), Report on Aboriginal Justice Issues (Gatineau: Indian and Northern Affairs Canada, 1996) at 2. 30

Ibid.

Juristat, The incarceration of Aboriginal people in adult correctional services (Ottawa: Statistics Canada, 2009) at 5.

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Toronto Police Service has seen a significant class action lawsuit come against them on the grounds of racial discrimination. In Ottawa, similar measures have been taken as minorities have been unfairly treated. In response to this, the Traffic Stop Race Data Collection Project has been created; however, this initiative is not without flaws, beginning with a police-studying-police process. Other marginalized members of society also face discrimination at the hands of police, including Aboriginal peoples who may face the largest amount of discrimination at the hands of Canadian law enforcement agencies. Talking about issues surrounding some of our most vulnerable and disaffected populations (such as those discussed) is the only way for real change to happen and, when it does, it too must be subject to critical thought and analysis to ensure that it is fulfilling its mandate.

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Accessed from: <http://www.cbc.ca/news/canada/ ottawa/racial-profiling-addressed-by-ottawapolice-1.877113> Donovan, Dan & Tremblay, Claire, “Police State or State of Police?” Ottawa Life Magazine (14 November 2011). Accessed from: <http:// www.ottawalife.com /2011/11/police-state-orstate-of-police/> Juristat, The incarceration of Aboriginal people in adult correctional services (Ottawa: Statistics Canada, 2009). Mental Health of Canada (MHCC), “Police interactions with persons with a mental illness: police learning in the environment of contemporary policing”. (Calgary: Mental Health Commission of Canada (MHCC), 2010). Office of the Ombudsman of Ontario, Oversight Unseen: Investigation into the Special Investigations Unit’s operational effectiveness and credibility (Toronto: Office of the Ombudsman of Ontario, 2008). Ontario Human Rights Commission (OHHC), “Paying the price: The human cost of racial Profiling”. (Toronto: Ontario Human Rights Commission (OHRC), 2003). Accessed from: Ontario Human Rights Commission (OHRC) <http://www.ohrc.on.ca/en/paying-price-humancost-racial-profiling/effects-racial-profiling> Ontario Human Rights Commission (OHRC), “What is racial profiling?” (Fact Sheet) (Toronto: Ontario Human Rights Commission (OHRC), 2003). Accessed from: Ontario Human Rights Commission (OHRC) <http:/www.ohrc.on.ca/en/ what-racial-profiling-fact-sheet> Ottawa Police Service, “Traffic Stop Race Data Collection Project”. (Ottawa: Ottawa Police Service). Accessed from: <http://ottawapolice.ca/ en/community/diversitymatters/ racialprofiling.aspx> Rankin, Jim & Winsa, Patty, “Carding by Toronto police drops sharply”, Toronto Star

SECONDARY SOURCES

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Canadian Civil Liberties Association (CCLA), Submissions to the Toronto Police Services Board Meeting Nov 18, 2013 (Toronto: Canadian Civil Liberties Association (CCLA), 2013). CBC News, “Ottawa police racial-profiling settlement questioned”. (Ottawa: CBC News, 2012). Accessed from: <http://www.cbc.ca/news/ canada/ottawa/ottawa-police-racial-profilingsettlement-questioned-1.1199823> CBC News. “Pilot project teaming police, psychiatrists made permanent”. (Ottawa: CBC News, 2013). Accessed from: <http://www.cbc.ca/ news/canada/ottawa/pilot-project-teaming-policepsychiatrists-made-permanent-1.1387929> CBC News. “Racial profiling addressed by Ottawa police”. (Ottawa: CBC News, 2010).

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(18 November 2013). Accessed from: <http:// www.thestar.com/news/gta/2013/11/18/ carding_by_toronto_ police_drops_sharply.html> Rankin, Jim & Winsa, Patty, “Toronto police chair Alok Mukherjee seeks big changes on carding”, Toronto Star (12 November 2013). Accessed from: <http://www.thestar.com/ news/gta/2013/11/12/ toronto_police_chair_alok_mukherjee_seeks_big _changes _on_carding.html> Rankin, Jim & Winsa, Patty, “Toronto Police sued by Black Action Defence Committee for $65M over racial profiling”, Toronto Star (16 November 2013). Accessed from: <http://www.thestar.com/ n e w s / g t a / 2 0 1 3 / 1 1 / 1 6 / lawsuit_seeks_65_million_for_racial _profiling.html> Royal Commission on Aboriginal Peoples (RCAP), Report on Aboriginal Justice Issues (Gatineau: Indian and Northern Affairs Canada, 1996). Smith, Charles C., Conflict, Crisis, and Accountability: Racial Profiling and Law Enforcement in Canada (Ottawa: Canadian Centre for Policy Alternatives, 2007). The Canadian Press, “Ottawa police introduce new racial profiling policy”. (Ottawa: CTV News, 2011). Accessed from: <http://www.ctvnews.ca/ ottawa-police-introduce-new-racial-profilingpolicy-1.684206> Wortley, Scot & Owusu-Bempah, Akwasi, “The Usual Suspects: Police Stop and Search Practices in Canada” in Policing and Society: An International Journal of Research and Policy (New York: Routledge Taylor & Francis Group). Zarkinson, Tanya L., Hamel, Paul A., & Hwang, Stephen W., “Homeless people’s trust and interactions with police and paramedics” in Journal of Urban Health (Berlin: Springer Science + Business Media, 2004).

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The Brain May Step Down:   Neuroimaging and Criminal Law ——

By Desiree Duplessis

Neuroscience has notably bled into several other

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also show which parts of the brain are active at the precise time, which allows for areas of the brain to be matched with their respective mental function. This type of brain imaging has three major advantages. : firstly, it is a non-invasive procedure and does not include any radiation; secondly, it has excellent temporal resolution; and thirdly, it is easy for the experimenter to use, particularly because the scans display the activity in real time. This provides a motion picture rather than a still photo that is provided by most brain techniques.2 A positron emission tomography (PET) scan uses radiation to construct an image that is threedimensional (3D) and in colour. Practitioners are able to test for health conditions and determine how a current health condition is progressing. As compared to an MRI, the most significant advantage of a PET scan is that is can reveal a body part’s level of functioning rather than just display its appearance. PETs are most commonly employed to follow the progression of Alzheimer’s disease, epilepsy, and cancer.3 Additionally, since the main purpose of PET scans is to analyze the blood flow through the arteries of the brain, an added advantage of this scan is its ability to also detect a lack of blood flow. It is for this reason that PETs are thought to be more efficient in detecting brain injuries.4 A single-photon emission computed tomography (SPECT) scan also uses radiation to form a 3D picture of the brain. Before undergoing the procedure, a patient is injected with a radio-labelled

disciplines including psychology, genetics and, most recently, law. This includes developments in functional magnetic resonance imaging (fMRI) as a rehabilitation strategy, performing experiments to enhance violence intervention programs, and analyzing patterns of crime and recidivism rates. While these areas of the law might benefit from their newfound relationship with neuroscience, one area will not: incorporating neuroscience technologies into criminal proceedings will be detrimental to the outcomes of most cases; particularly concerning the use of expert testimony and brain imaging. To fully understand why the use of brain imaging in criminal law is concerning, one must first understand the function of brain imaging. The methods that will be discussed include magnetic resonance imaging (MRI), functional magnetic resonance imaging (fMRI), positron emission tomography (PET), electroencephalography (EEG), and single-photon emission computed tomography (SPECT). Magnetic resonance imaging (MRI) scan uses pulses of radio wave energy in a magnetic field to create photos of organ structures in the body. With respect to the brain, an MRI can discover a number of abnormalities including tumours, aneurysms, nerve damage, and more.1 When an area of the brain is hyperactive due to stimulation, it uses more oxygen to keep the blood flowing. An MRI can track brain activity in real time by measuring the blood flow and oxygenation that occurs during neural activity. It can 1

Mark H. Ashcraft & Gabriel A. Radvansky, “Cognition: 5th Edition” (Toronto: Pearson Canada, 2010) at 59. 2 Ibid. 3 Andrew M. Colman, “A Dictionary of Psychology” (Oxford: Oxford University Press, 2008) at 549. 4 Ibid.

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chemical that is detected by the gamma rays that are emitted though the body. Radioactive forms of natural elements like fluorine, iodine, and thallium are used as label-tracers in the body. The type of labeltracer used is determined by what is intended to be measured. For example, radioactive glucose might be used to examine how it is metabolized by a brain tumour, which would depict how active the tumour is. These types of scans are crucial technologies in the medical field, and some believe them to be useful in their application to law as well. For example, Neal Feigenson of the Quinnipiac University School of Law believes an functional magnetic resonance imaging (fMRI) scan is capable of determining the presence of a brain injury, which can then lead to diagnosis.5 This would be helpful in criminal proceedings that involve the question of criminal responsibility: the defendant may be considered to be not criminally responsible (NCR) due to an abnormality in the brain that is empirically supported by an fMRI.6 The fMRI scan has also been used in the United States to reveal the anatomical differences between an adult brain and an adolescent brain, which ultimately helped make it unconstitutional to try and sentence a minor as an adult. While this advancement seems proactive and beneficial, there are still complications: while an fMRI can detect brain abnormalities, it only detects mass activity, which may leave other parts of the brain ignored, leading to improper data interpretation.7 Two civil cases, Entertainment Software Association v. Blagojevich8 and Entertainment Software Association v. Granholm,9 appropriately demonstrate why the use of brain imaging is

inappropriate in legal proceedings. Entertainment Software Association is a company specializing in video game publishing, console manufacturing, and more. The company was sued in federal court as a means to publicly oppose anti-violent video game legislation in several states in the United States. The main argument against them, found by the legislation,9 was that violent video games seem to lead to a reduction of activity in a player’s frontal lobes, which is the part of the brain involved in controlling behaviour.10 To support this argument, the plaintiff brought forward expert testimony from a clinical psychologist, Dr. William Kronenberger of the University of Indiana School of Medicine. Dr. Kronenberger used fMRI data to accompany his testimony; an attempt to prove that violent video game play provokes deficits in particular brain regions. In this case, the deficits were lower activity levels in the dorsolateral prefrontal cortex and the anterior cingulate cortex. After testing adolescents for these discrepancies, similarities were found between these scans and the scans of adolescents with a psychiatric history of violence/aggression when they were compared. Entertainment Software Association rebutted Kronenberger’s testimony with that of Dr. Howard Nusbaum, a cognitive psychologist at the University of Chicago. He deduced from the experimental design that Kronenberger’s process was flawed. For example, in one of the defendant’s studies, the adolescents did not actually participate in true game play: the adolescents only experienced simulated game play while watching videos of violent video games. The brain activity of the adolescents when

Neal Feigenson, “Brain imaging and courtroom evidence: on the admissibility and persuasiveness of fMRI” (2006) 2 IJLC 233-255. 6 Ibid at 3. 7 Ibid at 4. 8 Entertainment Software Association v. Blagojevich (2005a), 404 F Supp 2d 1051 (ND III).  9 Entertainment Software Association v. Granholm 404 F Supp 2d 978 (ED Mich 2005). 9 Feigenson, supra note 5 at 13. 10 Ibid at 13.

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partaking in simulated play is likely to be different from real game play, and so the study did not accurately measure what it was intended to (being the true effects of violent versus non-violent video game play on the aggression and violence levels of adolescents).11 Nusbaum’s second argument pertained to the brain regions discussed as being effected by video game play: the dorsolateral prefrontal cortex and the anterior cingulate cortex. While Kronenberger argued that a reduced level of activity in the prefrontal cortex also relates to a reduced capability of self-control and attention, Nusbaum criticized this claim by stating that many other areas of the brain are involved in self-regulation processes.12 Therefore, the finding of decreased activity in the frontal lobes does not necessarily infer a rise in the adolescents’ aggression levels. The regions of the brain are not mutually exclusive and a brain image could be the result of the cooperative actions of brain regions. Nusbaum suggested that the deficit could possibly be due to the adolescents’ proficiency regarding the video game. This idea is plausible because the frontal lobe is involved in automatic processing. When performing a task regularly, we require less concentration.13 An example of this would be typing. When one first uses a computer, it is likely their typing speed is rather slow, but as they continue to use it, they are gradually able to type faster. In this case, the adolescent is so accustomed to playing video games they acquire a type of expertise and do not require as much attention when playing. This may cause a deficit in frontal lobe activity. The interpretation of brain images is complex and may hinder the reliability of the information contained in the scans. The manner in which brain scanning is

incorporated in to the experimental design can be skewed in an attempt to find the desired cognitive or emotional function(s) in conclusion. This leads to the question of whether the findings are germane to the legal issue at hand. While it is believed blood flow and neural activity are connected, the relationship is not fully understood, and it would be ignorant to rely on unconfirmed information.14 With respect to criminal court, the only significant mental state occurs at the time of the offence. Serial killer Brian Dugan, then 27, murdered three girls in the suburbs of Chicago, Illinois between 1983 and 1985. During his trial, Kent Kiehl, a neuroscientist at the University of New Mexico, attempted to help Dugan’s case with the use of brain imaging.15 Conversely, the prosecution called upon Jonathan Brodie, a psychiatrist at New York University. Brodie found two major inconsistencies in Kiehl’s research: timing (Dugan’s brain scans were performed approximately 26 years after the murders occurred) and the variance between average and individual differences of a brain scan.16 Thus, Kiehl's testing was an inaccurate representation of his mental state and processes at the time of the crimes. As previously stated, no two brains are alike; consequently, it is impossible to generalize study results. If an individual shows abnormalities in their brain, it does not necessitate labelling them as ‘defective’ or a bad person. It is impossible to determine what is legally relevant because the results become less reliable with the increasing time span between the crime(s) and the brain scan. In addition to the argument that neuroscientific testimony and brain scan results should be inadmissible in legal proceedings, brain images

Ibid at 14. Feigenson, supra note 5 at 14. 13 Ibid at 14. 14 Ibid at 11. 15 Virginia Hughes, “Science in court: Headcase” (2010) 464 Nature: International weekly journal of science at 340-342. 16 Ibid at para 21. 12

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themselves should also be deemed inadmissible. Arguments for the use of images during trial, state that they offer a better understanding of the testimony and that they potentially correct certain biases. However, these are unlikely results. While the presence of photos might enhance a certain kind of testimony, neuroscience is a complicated academic field that requires many years of experience and study to understand. While brain scans would likely be accompanied by expert explanation, it is possible for the people viewing them to misinterpret their information. Additionally, since they are medical examinations that require a certain type of expertise, it is possible for the jurors (individuals who are not trained to interpret these results) to assume the argument is credible because it is part of a scientifically driven, expert testimony.17 A common example of this is trusting an experimenter’s judgment merely because he wears a white lab coat, a symbol of academia and credibility, demonstrated in the Milgram Experiment (1963).18 Drs. David A. Bright, a senior lecturer at the University of New South Wales in Sydney, Australia, and Jane Goodman-Delahunty, a research professor at Charles Sturt University in Bathurst, Australia, also conducted an experiment where they had subjects read and issue verdicts in fictional criminal cases. Two groups of people were shown pictures while the control group was shown none. The first test group saw neutral photos of objects like scratched doors that had been broken into while the second test group was shown more gruesome photos. Bright and Goodman-Delahunty, who were trying to determine the photos’ effects on jury decision making, found the

conviction rate was 38% for the group who saw the neutral photos, 41% for the group who saw the gruesome photos, and only 8.8% for those who saw no photos at all.19 Both of these studies have the capacity to mirror the outcomes of brain images being used as evidence. There is also the matter of the Christmas Tree Phenomenon proposed by Columbia University neuroscientist, Dean Mobbs: when juries see the different colours and patterns on a brain scan they will focus on that and disregard the information being relayed to them during the testimony.20 When trying to admit evidence into the courtroom, certain guidelines must be followed and key criteria must be met. Neuroimaging simply does not fit these standards. The rules governing the admissibility of expert witness testimony are derived from Daubert v. Merrell Dow Pharmaceuticals.21 The Daubert Standard for acceptable forms of testimony gave rise to the Federal Rules of Evidence. Sections 401 and 403 of this legislation outline the need for relevant neuroimaging findings in order to be used in the courtroom. It would be detrimental to a case to refer to brain scans as ‘relevant evidence’ since the term is defined as something that is meant to make a fact clearer, without provoking confusion or delay. Scans are likely to produce confusion in the courtroom because they are misleading and prejudicial in the sense that they cannot show all of the possible interpretations. In the 1997 case of Penney v. Praxair, Inc. ('Praxair'),22 Leonard Penney (‘Penney’) was asleep in a parked car when it was hit by a loaded tanker truck belonging to Praxair. Penney experienced some whiplash during the accident and claimed that he had

Feigenson, supra note 5 at 15. Stanley Milgram, “Behavioural Study of Obedience” (1963) 67:4 Journal of Abnormal and Social Psychology at 371-378. 19 A.L. Roskies & W. Sinnott-Armstrong, “Brain images as evidence in criminal law” (2011) 13 Law and Neuroscience at 97-114. 20 Ibid at 15. 21 509 US 579, 597, 113 S Ct 2786, 2798-99, 125 LEd2d 469 (1993). 22 116 F 3d 330 Court of Appeals, 8th Circuit 1997. 18

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subsequently suffered from other ailments. He participated in several types of brain imaging including MRI and computed tomography (CT) scans, which showed no signs of a brain injury. Finally, he underwent a PET scan and the results rendered conclusively that Penney showed abnormalities consistent with brain injury when compared to a control group. When attempting to present the evidence in court, Praxair’s counsel motioned to have the PET scans removed from evidence on the basis of incongruence with the Daubert Standard and the inability to withstand the analysis of the Supreme Court of Canada (SCC). The scans were removed from evidence by the district court.23 Another case of the inappropriate use if brain imaging in the courtroom is the case of Aditi Sharma, an MBA student from Mumbai who was accused of killing her fiancé, Udit Bharati, with arsenic laced candy.24 She submitted to a Brain Electrical Oscillation Signature (BEOS) test through electroencephalography (EEG), which is supposed to identify whether an individual has knowledge or memories of a certain event. In this case, she heard neutral statements such as ‘the sky is blue’, and because she has experienced a blue sky in her past, a certain region of her brain activated (visible on a computer screen). She was then subjected to statements related to her fiancé’s murder, such as ‘I gave him the sweets mixed with arsenic’. The results determined Sharma had shown neuro-experiential knowledge of the crime and she was convicted.25 Post-conviction, Sharma appealed the decision because she believed the brain scans were fooled by

stress. It is possible that while hearing statements she found upsetting, such as those referring to her fiancé’s murder, Sharma’s brain waves spiked. Although the reaction can solely be due to an emotional response, it may be interpreted as having a memory of the statement. Consistently, actually remembering an event and thinking you remember an event are two different things. A study conducted by Jesse Rissman and Anthony Wagner of Stanford University proves brain scans can detect what people think they can remember, but not whether they actually remember it. Rissman asked 16 individuals to study 210 faces for 4 seconds each. One hour later, they were shown 400 faces, half of which they had seen previously, and the other half were novel. The object of the exercise was to simply tell the two groups apart. For each face, the individual had a choice between four options: a certain recollection, a hunch that the face was either old or new, and with either high or low confidence. While they completed this task, Rissman scanned the subjects’ brains using fMRI and used pattern recognition programming to analyze the scans. The results seemed promising, with the software having an average accuracy rate of 83% when separating the old and new faces based on brain activity alone.26 It could also reliably decode the brain scans of one subject after it was ‘trained’ on the data of another. While these results sound conclusive and progressive, the study was only geared to the subjects’ subjective memory – what they thought they recalled. Evidently, brain scans are incapable of measuring objective memory. In order to assess this, Rissman and his team shifted their focus toward the degree of

Ibid at para 333. Nitasha Natu, “This brain test maps the truth” The Times of India (21 July 2008) (International Newsstand). Accessed from: The Times of India <http://timesofindia.indiatimes.com/city/mumbai/Thisbrain-test-maps-the-truth/articleshow/3257032.cms>. 25 Anand Giridharadas, “India’s use of brain scans in courts dismays critics” The New York Times (15 September 2008). Accessed from: New York Times <http://www.nytimes.com/2008/09/15/world/asia/ 15iht-15brainscan.16148673.html?_r=2&pagewanted=all&>. 26 Jesse Rissman & Anthony D. Wagner, “Distributed Representations in Memory: Insights from Functional Brain Imaging” (63 Annual Review of Psychology, 2011) at 114. 24

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confidence subjects felt while making their judgments. He wanted to determine if the software could differentiate between faces that were actually previously seen and correctly remembered, and new faces that were inaccurately remembered. It received a 59% success rate, which is not favourable.27 This study and all its variations prove neuroimaging cannot properly depict brain function because the research is inconclusive. While the main concern is inaccuracy, there is a sub-argument that brain imaging breaches a person’s right to protection from unreasonable search and seizure.28 Section 8 of the Canadian Charter of Rights and Freedoms (Charter) states exactly this, while section 11 of the Charter says “any person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence.”29 It is impossible to obtain a search warrant for someone’s brain and it is unconstitutional to use someone’s brain scans as legal evidence in their own trial.30 In conclusion, there are several reasons why neuroimaging ought to be inadmissible in criminal law. The experimental design can skew the results since it is impossible to scan a defendant’s brain while a crime is in progress and know the mental processes at the exact moment. This consequence renders the testing legally irrelevant. Furthermore, while a brain scan might show an abnormality in a region of the brain associated with one emotion or function, its direct cause cannot be assumed. The science has not progressed enough to be admissible in criminal law, and not enough is known about it to deem it universal knowledge. Brain scans are scientific images requiring expert interpretation to understand. They

are confusing, misleading and will alter a jury’s decision-making process. In addition, they do not correspond to the criteria set out in the Daubert Standard or sections 401 and 403 of the Federal Rules of Evidence.31 The concept of neuroscience intersecting with law remains flawed. There is further research to be done and more concrete evidence to be discovered - evidence that can be universally trusted. Until there is further progress in the field of neuroscience, it cannot be trusted as a reliable source of evidence in law.

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LEGISLATION

The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11. [Charter] United States Constitution, art II, sec 1, cl 3. Print.

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JURISPRUDENCE

Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579, 597, 113 S Ct 2786, 2798-99, 125 L Ed 2d 469 (1993). Entertainment Software Association et al. v Blagojevich (2005a), 404 F Supp 2d 1051 (ND Ill). Entertainment Software Association et al. v. Granholm, 404 F Supp 2d 978 (ED Mich 2005) (preliminary injunction), case no 05-73634 (filed 31 March 2006) (permanent injunction). Penney v. Praxair, Inc., 116 F 3d 330 - Court of Appeals, 8th Circuit 1997.

Ibid at 115. Larry Dossey, “Neurolaw or frankenlaw? The thought police have arrived” (2010) 6 Explore: Journal of Science and Healing at 275-286. 29 The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11. [Charter] 30 United States Constitution. art. II, sec. 1, cl. 3. Print. 31 The Committee on the Judiciary House of Representatives, 113th Con, 1st Sess, No 5 (1 December 2013). 28

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The Committee on the Judiciary House of Representatives, 113th Con, 1st Sess, No 5 (1 December 2013).

SECONDARY SOURCES

Ashcraft, Mark H. & Gabriel A. Radvansky, “Cognition: 5th Edition” (Toronto: Pearson Canada, 2010). Colman, Andrew M., “A Dictionary of Psychology” (Oxford: Oxford University Press, 2008).

Dossey, Larry. “Neurolaw or frankenlaw? The thought police have arrived” (2010) 6 Explore: Journal of Science and Healing 275-286. Feigenson, Neal. “Brain imaging and courtroom evidence: on the admissibility and persuasiveness of fMRI” (2006) 2 IJLC 233-255. Giridharadas, Anand. “India’s use of brain scans in courts dismays critics” The New York Times (15 September 2008). Accessed from: New York Times. <http://www.nytimes.com/2008/09/15/ world/asia/15iht15brainscan.16148673.html? _r=2&pagewanted=all&>. Hughes, Virginia. “Science in court: Headcase” (2010) 464 Nature: International weekly journal of science 340-342. Natu, Nitasha. “This brain test maps the truth” The Times of India (21 July 2008) (International Newsstand). Accessed from: The Times of India. <http://timesofindia.indiatimes.com/city/mumbai/ This-braintest-maps-the-truth/articleshow/ 3257032.cms>. Rissman, Jesse & Anthony D. Wagner. “Distributed Representations in Memory: Insights from Functional Brain Imaging” (2011) 63 Annual Review of Psychology 101-128. Roskies, A.L. & W. Sinnott-Armstrong. “Brain images as evidence in criminal law” (2011) 13 Law and Neuroscience 97-114. Stanley Milgram, “Behavioural Study of Obedience” (1963) 67:4 Journal of Abnormal and Social Psychology.

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