Manitoba is facing some of the highest numbers in the nation regarding repeat offenders. Overall, there is a 33 per cent recidivism rate for offenders who receive a jail sentence as part of their criminal conviction. For youth, Manitoba has the highest rate of recidivism in the country, at approximately four times the national average. For adults, Manitoba has the highest adult incarceration rate among the provinces. This number increased by 64 per cent between 2006-2017. To calculate recidivism rates, Manitoba Justice looks at those who have been convicted of a criminal offence or have probation supervision within two years of completing a prior sentence. Therefore, these numbers do not capture those who commit offences outside of the two-year period.
Although the statistics above may seem to paint a gloomy picture of the justice system in Manitoba, the data is clear; when offenders are paired up with community supports or perhaps an alternative sentencing remedy recidivism rates drop. Community-based sentencing focuses on providing alternative ways to sentence offenders other than by sending them to jail. Community-based sentence looks at other options like restorative justice processes, community service options, treatment for addictions and/or looking at workplace support initiatives. Some of the most recent numbers from Manitoba Justice demonstrate that community-based sentencing sees recidivism rates drop by over half to 15 per cent.
Manitoba has other progressive initiatives that seek to provide supports to offenders depending on the specific barriers they may face in the regular court system. For example, the Winnipeg Drug Treatment Court program, which is available to offenders who commit crimes because of their dependency on drugs. This Court takes into consideration their addictions in assessing their sentences and include counselling and treatment for the offender. Re-offending rates drop to 11 per cent in this Court.
The Mental Health Court in Manitoba is also a progressive option for those suffering from mental illness. Custodial sentences are not made in this court, because offenders either have their charges stayed or are served a community-based sentence. There is a mental health professional as a part of the assessment team.
Also, this past February, a new Manitoba court was opened to recognize the different needs of people with fetal alcohol spectrum disorder (FASD). This new court will sit one day per week and will include judges who have a profound understanding of the intricacies of someone with FASD. The courtroom itself will be slightly different in order to accommodate the needs of someone with FASD. The room will be quieter, with fewer distractions.
These initiatives are very important and are a huge part of supporting those who may not be appropriately treated in the regular court system. However, there are other issues in the system that preclude these programs from reaching their full potential.
For example, Manitoba has a very high number of people who are being held in custody on remand. Approximately two-thirds of inmates in provincial jails are waiting for a court date. This means, that if they are not allowed out on bail, they will be waiting for their day in court in jail. During this time, their access to supports and programming is limited. This delay may affect recidivism rates.
For obvious reasons, many of these non-custodial options are reserved for those who have committed less serious crimes. This is logical, but also begs the question of whether those who commit the most serious crimes may be the ones in need of the most supports. Although this concept is an uncomfortable one, it is fair to question the outcomes of the current system and consider whether there are more creative ways that could encourage lower rates of re-offending for the most serious offenders, but also ensure the deterrence and moral components of our justice system are recognized.
As we all consider our future as lawyers or as general members in the legal community, it is important that we recognize that we can play a role in supporting a better system. There will be many options for us to participate in community initiatives, pro bono activities, or assisting with new creative and progressive judicial programs.
However, one of the most important issues facing Canada’s legal system is the lack of visible diversity. By including people with different backgrounds and perspectives not only as lawyers and judges, but within all levels of the legal system (RCMP, WPS, correctional institution, etc.) we would create a better, stronger and more fair legal system. Currently, Indigenous people make up 18 per cent of Manitoba’s population, but represent approximately 74 per cent of inmates in provincial jails.
As a legal community, we need to do better to understand this. It is clear that minority groups are no less talented and having more visible representation of marginalized groups would likely improve efficiency in the Canadian legal system. Some may argue that the law is an objective and neutral arbitrator and therefore the diversity of the legal community is irrelevant to the outcomes of justice, but I disagree. The individuals that are behind the law, in many difference capacities, shape our legal system, and how those involved in it are treated. It is a naïve approach to believe that bias plays no role in the legal community. It is clear that there is no rational reason to continue to exclude marginalized groups. In fact, more should be done to ensure that those who had been traditionally excluded take on publicly visible roles. By putting visible minorities in position of authority it will not only make our legal system better, but it will send a message that this is space for all people to participate in at a decision-making level.
Richard Devlin, A. Wayne Mackay & Natasha Kim, “Reducing the Democratic Deficit: 1 Representation, Diversity and the Canadian Judiciary, or Towards a “Triple P” Judiciary” (2000) 38:3 Alb L Rev 734 at 789, 796.