FELDSTED -- When members of minorities have equal access to legal council, they will not fall through the cracks ... and be mistreated by the justice system

Protests sparked by the killing of George Floyd in Minneapolis, MN should be an exercise in awakening and self-examination. The dialogue about systemic discrimination plays against a background drum beat of “black lives matter”. The concept is right, but the background is not. Systemic discrimination affects all people. Our justice system is broken and has been for decades.

It is wrong to claim that systemic discrimination is a policing problem. Police forces reflect the communities they serve. We set the standards and values for our community. We want criminals locked up in prison as long as no prison is built near where we live. That is the type of double standard that results in discrimination.

We have a political and social problem. We are social and tribal animals and then sort ourselves in a pecking order. Think about common terms we use: “Blue collar”, “White Collar”. “Skilled Trades”, “Labourers”, “Bureaucrats”, “Investors”, “Indigenous”, “Indigent”, “Middle Income”, “Working Poor”, “Single Mothers”, “Upper Class”.

These and many more terms designate people and groups of people that we fit into a pecking order. That is where systemic discrimination starts. Different groups have different scales of pecking order. Minority groups have their own biases, prejudices and pecking orders.

If we want to eliminate discrimination, we have to begin by leveling the playing field.

An important element of an impartial justice system is a robust legal aid system available to assist anyone unable to pay legal fees. This is important when someone is accused of a crime. In many cases a lawyer can bargain for a reduced sentence or community service in lieu of a fine or jail time. It is a win-win as the accused avoids a criminal record, and society has avoided the cost of incarceration.

We can make legal council available to everyone irrespective of colour, race, ethnic origin, or any other factor that identifies him or her as a minority. All it takes in political will and money.

The next element is bail. Most people charged with a crime are released on their own recognizance because they owe money on a car and home. They are not a flight risk and can easily be located for proceedings when they commence.

Prosecutors however, often raise a bail issue with people who have less stable living conditions, in particular single males. Unless a family member or friend is willing to sign an undertaking, that person can languish in custody for months, even years.

In most cases the prosecutor does not want the trouble of having to issue a warrant to find the person when a trial is due. That is extremely poor reason to remove a person’s liberty.

A criminal gang member, who can pay for very good legal council is granted bail even if he or she has outstanding charges for previous crimes. That is patently unfair and tells police that they are faced with a “revolving door” or “catch and release” justice system.

Another element is the casual collusion between judges, prosecutors, and defense lawyers. Both civil and criminal cases are remanded on the flimsiest pretexts.

Someone forgot to bring a file, or some paper is missing from documents. The case is put off for 60 days. That is why it takes years to bring a criminal case to trial. There is no standard of competence or sense of urgency. None of them cares that someone may be sitting in the remand centre for months as a result.

Those are key elements that must be addressed if we want to eliminate systemic discrimination.

When members of minorities have equal access to legal council, they will not fall through the cracks and be mistreated by the justice system. Our system is designed to be dispassionate, not to ignore facts and information that can benefit an accused. In a criminal matter, the onus is on the Crown to prove its case beyond a reasonable doubt. Whenever that high standard is not met, the result is discrimination.

I hope the anger, determination and frustration displayed in protests do not evaporate without changes. People have taken the first steps to eliminating discrimination. Our system will not change unless the people protesting keep putting the issues on the federal political doorstep again and again until they act.

Our Prime Minister’s virtue signalling knee drop is a useless gesture. Our criminal code and application thereof are a federal jurisdiction and responsibility.

Repairing our discriminatory justice system is within the power of the federal government. Stop gesturing, and fix it.


John Feldsted ... is a political commentator, consultant, and strategist.  He makes his home in Winnipeg, Manitoba