Canada's Criminal Justice System: An American Design

by Oakley Ramprashad

An empty prison corridor.

For those who don’t regularly pay attention to the goings-on of the Supreme Court of Canada, the 2019 decision in the case of R v. Le may have flown under the radar. This decision was framed as a victory in the quest for criminal justice reform, and if one’s understanding of the criminal justice system is that the over-policing of BIPOC bodies and their prevalence in the prison system is a result of a broken system, then this decision would be a clear cut victory. 

Following the murder of George Floyd, there seemed to be a shift in the rhetoric surrounding the criminal justice system, especially in the United States. More of the population (and when I say more of the population I mean white folks, because folks of colour have always been doing this work) started to push back against this concept of a broken system, instead asserting that the system was doing exactly what it was designed to do--subjugate and oppress marginalized folks. This sentiment was present in Canada but not nearly to the degree  it should have been, for in Canada we feel a sense of moral superiority to the United States. Whether intentional or not, we fall back on the complacency-inducing attitude of ‘it may not be great here, but it’s a heck of lot better than it is down there.’ It’s hard to overstate how dangerous and misguided, in the context of the criminal justice system (for our purposes defined as policing, policy/legislation, courts, and corrections), this perception is.

The modern prison design originated in France, but it was not until years later, after a series of trial and errors, that a small prison in Auburn, New York would come to “perfect” the modern prison. The ‘Auburn Model’ would come to be adopted across the United States throughout the 19th century. At this same time, Canada was constructing its first prison in Kingston, Ontario. The Kingston Penitentiary marked the first instance of cooperation between Canada and the United States on criminal justice matters. Not only was the physical construction of the building overseen by an American (and a fierce Auburn Model supporter), but a former administrator from the Auburn prison became the first warden of the Kingston penitentiary. This foundational relationship meant the physical structures of Canada’s prisons would have American DNA in them moving forward. 

The most recent broad criminal justice policy overhaul in Canada was the enactment of the Corrections and Conditional Release Act (CCRA) in 1992. Criminal justice and prison policy are very much reactive to, and reflective of, societal views on crime and punishment, so it’s necessary to explain what was happening in Canada at this time. First, we must look to the United States at this time period to situate the Canadian context. The 1980s/90s in the United States was defined by what could be argued to be the most punitive and racist set of policies since the Jim Crow era and slavery before that (critical race scholar Michelle Alexander refers to the modern criminal justice system in the United States as the ‘new Jim Crow’). There’s a lot that could be said to support this claim, but the best demonstration of it could be the William (or Willie) Horton campaign ad run by George H. Bush. If you watch the ad on YouTube, armed with the knowledge that this campaign ad is said to have possibly won Bush Sr. the election, you will get a sense of both how racist, and how great the desire for punitive criminal justice policy was at this time. This ad, and ones like it, are integral to understanding the power of news and media in shaping the public's perception of crime and criminality and inversely, the public’s power to influence policy.

A Canadian study came out in 1984 that provides a clear picture of what Canadian views on crime and punishment were and what influenced those views at the time. What this study found was that the vast majority of Canadians who were exposed to American media and news were concerned about crime, whereas those who didn’t watch American news had little to no concern about it. Perhaps more telling was that of those concerned, the vast majority were English-speaking, conservative-leaning, white, and lived in the suburbs. That same demographic also overwhelmingly felt that Canada’s criminal justice policy needed to be more punitive.

A cop car.

This attitude led to an overwhelming victory for Brian Mulroney and the Conservative party in 1984. With this came the CCRA. So, what happens in Canada after the enactment of the CCRA? According to the National Crime Prevention Council, in the first five years: the federal prison population increased by nearly 25%; the number of federal parole reviews dropped by nearly 40%; and, the number of incarcerated peoples required to serve the full length of their sentence more than doubled. More folks in Canada were being incarcerated than ever before, and those already incarcerated were staying inside institutions for longer.

Some folks have pushed back and pointed out that Canada’s overall incarcerated population has declined in the last number of years, which is very different from trends in the United States. They may also point out that there are significant differences in punishment (i.e., differences in sentence length, legality of the death penalty, etc.), but these are cosmetic--the system is doing the same thing to racialized folks in both countries. Black and Indigenous peoples make up roughly 8% of the general population in Canada, yet account for over 30% of those incarcerated. Those numbers only increase when you look at incarceration rates for Black and Indigenous women specifically (‘women’ as defined and categorized by the government). Canada has its own mass incarceration problem that very few seem to discuss.

America oversaw the construction of, and ran, the first Canadian prison, leaving an inescapable imprint. For BIPOC, the most punitive and detrimental piece of criminal justice policy was deeply rooted in an unjustified and inaccurate fear of crime and criminality among conservative white folks whose understanding of crime, and who was committing it, was informed by American media and news. So, we may claim our system is different and that our problems are not the same. But, if we are to appropriate an old adage: if it looks like the same system, and operates like the same system….well I’ll let you finish the rest.