Another example of the significant, albeit hidden role that prosecutorial discretion plays in murder cases is provided by Yvonne Johnson’s case. The result in her prosecution demonstrates the flip side of systemic racism whereby accused who are not the most significant actors in a crime can be accorded the lion’s share of legal and punitive responsibility for a crime. Yvonne Johnson’s account in Stolen Life (Johnson and Wiebe, 1998) illustrates how the Aboriginal woman accused of murder can be denied the benefit of Crown discretion in the prosecution in terms of plea bargaining, even where it is extended to the other perpetrators. She ended up as the only one of four to be convicted of first degree murder and therefore the one who is serving the longest sentence of imprisonment, by far.

There are also significant numbers of people with cognitive and psychiatric disabilities who are caught up in the criminal justice system, and for whom stereotypes and discriminatory practices play a role in their conviction and exposure to mandatory sentences of incarceration. For example, the legal treatment of wrongfully convicted Guy Paul Morin was worsened in part by his mental illness, which was used by prosecutors to suggest to jurors that he was the sort of person to commit such an act of violence and to thereby suggest that he was guilty of murder (Makin, 1997). We need to study how negative social and legal constructions of disability interact with the criminal justice system and produce mandatory life sentences, contrary to the equality interests of persons with disabilities.

CAEFS is aware of evidence that indicates a Crown preference for first degree murder charges against women who kill their mates, when either no charges or a manslaughter charge would be warranted on all the evidence (see the cases discussed below of Kim Kondejewski and Lilian Getkate, among others). Given the reality that most women who use lethal force to prevent an attack by an abusive partner are also the first to notify police of the death and their involvement, their own actions are frequently used by Crown prosecutors as the basis for laying first degree murder charges. It is neither logical nor just to allow the gendered context that gives rise to the decision to lay first degree murder charges against such women to dictate a minimum sentence of life imprisonment.

In addition to these specific examples, we have statistics on charging decisions by police and other prosecutorial decisions by Crowns, such as the decision to choose the indictable route of prosecution over the summary conviction process, which substantiate that systemic biases against groups such as African-Canadians shape the exercise of discretion with respect to many criminal offences (Final Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, 1995). We also have statistics that illustrate racism in Canadian sentencing patterns (Renner and Warner, 1981), over-use of more punitive measures against Aboriginal and African-Canadian accused (Bridging the Cultural Divide,1996; Final Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, 1995), including discriminatory patterns of commutation of the death penalty (Strange, 1996) and over-representation of Aboriginal women among the women’s population in federal prisons (LaPrairie, 1993).