Understanding Systemic Unequal Treatment Before Canadian Criminal Courts
Equality before the law is a beautiful concept. But in Canada at least, it doesn’t always happen.
I recently read Janice Fiamengo’s “Woman Complains of Post-Traumatic Stress after Setting Male Friend on Fire”. Professor Fiamengo noted:
“We’ve long known that women are given significantly lighter sentences than men for criminal wrongdoing...Women’s sentences are on average more than 60% less severe than men’s for the same types of crimes...Women were also significantly likelier to avoid charges and convictions entirely, and twice as likely to avoid incarceration if convicted.”
That made me curious for all the obvious reasons. So I immediately set to work to see whether this was also happening in Canada’s criminal justice system. In fact, I found Statistics Canada data from between 2010/2011 and 2022/2023 showing a clear and significant disparity in custodial sentencing rates depending on whether the convicted criminal was male or female.
I ignored sentencing data for lighter crimes like theft, because it’s at least theoretically possible that women and men tend to commit such crimes at different levels of severity (perhaps one group shoplifts smaller amounts of property than the other). In such cases, we might expect variations in sentencing.
But murder, attempted murder, and major assault are binary: either victims are dead, rescued from death, or badly-beaten - or they’re not. If there was a conviction in court, we have a right to assume the crime took place. If the killing was in self-defense, then there would be no conviction - and certainly no custodial sentence.
Specifically, out of a total of 142,796 convictions involving male criminals, 71,050 (49.76 percent) resulted in custodial sentences. Women were convicted in 31,345 cases and received custodial sentences for only 9,240 of those cases. That’s a rate of just 29.48 percent.
To be sure, that extreme disparity wasn’t uniform across all the crime categories I looked at. Males were sent to prison for 78.85 percent of murder convictions, while women faced prison only 70.7 percent of the time. But even an eight percent difference representing cases stretching over 17 years and thousands of crimes is bizarre.
Part of the gap could possibly be explained by courts considering mitigating factors like prior criminal history. It’s possible that women are statistically more likely to be first-time offenders, which could lead courts to prefer diversion programs. But I really don’t think that completely explains the sheer size of the imbalance.
My quick and dirty look at the data suggests that the inequality identified by Professor Fiamengo is indeed alive and well in Canadian courtrooms.
Let’s not forget the special “judgements” applied in many cases for our FN cohort. That is another level of systemic treatment above and beyond that mentioned in this analysis.
Ahhhh ..... David, you drop the disparity and then scurry away without providing a whole lot of conclusion.
I don't at all blame you.
I suggest that any conclusion that is offered that departs from "Women are oppressed!" will get you in severe trouble. Oh! Perhaps I am now the one in trouble.
The problem is that there are societal biases that we acknowledge and those that are so implicit that no one thinks to acknowledge them. Of course, that very much includes me.
So, what does that mean? Damned if I know! What I can say is that the first step in understanding and changing/defending these differentials is to acknowledge that they exist - so, good on you for this! - and then discussing the virtues/problems with these differentials.
Alas, I don't foresee such discussions as likely; in fact, I suspect that any potential discussion of these differentials will get lost in the argument of "Believe the women!" that we hear so frequently. Indeed, women need to be believed but life is much more complex than a simple slogan.