Advancing social inclusion: the implications for criminal law and policy (1).

• Author: Sheehy, Elizabeth

The literature on social inclusion as a tool of policy analysis is prolific and sweeping in scope. This literature identifies the forms in which specific groups in society experience exclusion, whether political, social, or economic; it renders visible the human and economic costs of exclusion; and it asks fundamental questions directed at rendering our institutions and the outcomes they produce more inclusive of all. Social inclusion as a principle to inform government policy emerged in Europe in the 1980s, in response to growing social and economic divides in European nations.

The literature on social inclusion and criminal law is almost non-existent, not surprisingly in light of the inherent contradiction that is revealed by juxtaposing criminal law against the notion of social inclusion. Advancing social inclusion through criminal law is a daunting objective because criminal law is, by virtue of its historical origins, substantive offences, and current outcomes, directed at social exclusion. The endeavour of rethinking criminal law from a standpoint of social inclusion is reminiscent of efforts to confront criminal law with equality law: it is simply not possible to promote equality through a system that is actually premised on inequality without directly challenging power. As Meg Luxton puts it,

A commitment to social inclusion confronts the way social power is situated.... Those who currently hold power and are members of groups that have had the benefits of social inclusion for generations stand to lose their relative privileges and may be challenged to share their power in ways that cannot be anticipated by policy-makers when they commit themselves to developing and implementing radically new practices. (2002: 8, 11). However, it might also be apparent that the broader goals of social inclusion will be thwarted if criminal law and policy continue to create, or at least entrench, social and economic marginalization through criminal prosecution and punishment that disparately target the poor, Aboriginal people, and racialized persons, (2) among others. A political commitment to the pursuit of social inclusion therefore demands that the institutions, rules, and enforcement of the criminal law be re-examined using this same analytical tool. There are, for example, key themes and questions that can be usefully interrogated with respect to criminal law in the social inclusion literature, as well as in the work of law reformers, feminists, disability rights thinkers, and critical race theorists.

Purpose

This article will first sketch the parameters and premises of social inclusion. It will then discuss the role that social inclusion might play in different aspects of criminal law: the process of law reform; the substantive definition of crime; the role of law enforcement; and the outcomes of criminal law, including the use of prison as the ultimate sanction. For each of these areas, the article will briefly touch upon criminal law's practices of social exclusion and then raise questions about how it might move towards an ethic of inclusion.

Defining social inclusion

The policy tool of social inclusion is described in terms of both process and substantive results. For instance, Terry Wotherspoon, in an article on social inclusion, Aboriginal peoples, and public education, argues that social inclusion is a process as well as an outcome and should be measured in relational as opposed to absolute terms (2002: 3). Meg Luxton distinguishes between weak and strong versions of socially inclusive practices and policies: commitments to non-discrimination, diversity, and equality of opportunity are less inclusive than commitments to anti-racist and anti-sexist educational policies, substantive equality, and affirmative action (2002). Anver Saloojee argues that "[s]ocial inclusion, by virtue of the fact that it is both a process and an outcome, can hold governments accountable for their policies. The yardstick by which to measure good government therefore becomes the extent to which it advances the well-being of the most vulnerable and the most marginalized in our society" (2002: 13).

In Canada, the federal Department of Justice and Department of Canadian Heritage have also begun to work with social inclusion as a policy instrument. This early work is tentative, and a strong theoretical framework and basic premises are yet to be developed. For example, the Social Cohesion Network of the Policy Research Initiative began in 1997 and resulted in a consultation process and a report entitled Inclusion for All: A Canadian Roadmap to Social Cohesion. Insights from Structured Conversations (Canada, Departments 2002). Although the effects of globalization are mentioned and the report states that social cohesion requires income distribution, equity, inclusion, and access, it posits the risk to social cohesion as emanating from cultural differences rather than from widening gaps between rich and poor, long-term unemployment, structural racism, homelessness, and social isolation. This report frames the issue in terms of risks to social cohesion posed by "new health challenges, increased population mobility and changes in the structure of the global economy" and notes that "[a]s people in society increasingly follow diverse paths in terms of belief, perspective, and culture, analysts wonder if forging collective social projects may become more difficult in the future" (2002: 2).

Governments and policy makers committed to advancing social inclusion will carefully examine their premises and their language usage, for it is not possible to simultaneously reinforce racial "differences" and promote social inclusion. Peter Li points out that "social exclusion involves some degree of 'racial' signification; social inclusion calls for deconstructing 'race' and 'racial' differences, and rejecting the use of phenotypic features to racialize people" (2003: 1). However, his work directs us to notice that "'race' and 'racial' differences can be articulated forcefully by adopting a discourse that makes use of codified concepts and syntax to sanctify 'racial' messages and make them appear not in contradiction to the principles of equality and non-discrimination" (2003: 3-4). In particular, he demonstrates how public discourses around "diversity" in fact rely on an understanding that non-whites are the reference group, in particular those from non-traditional source countries in Africa and Asia. These discourses link diversity to social fragmentation and threats to presumed Canadian unity while purporting to reflect the values of tolerance and equality (2003: 8-10).

More sophisticated analyses of social inclusion can be expected from the federal government in coming years. In March 2003, the Canadian Council on Social Development and Human Resources Development Canada hosted a research conference to identify the gaps in the national social inclusion research agenda (2003). The topics included social inclusion and housing, racism, food insecurity, and cities and polarization, among others. The breadth of the topics and the strong focus of the conference on eliminating poverty as a pre-condition to social inclusion (Voyer 2003) suggest that federal policy makers are beginning to identify the potential scope of social inclusion, extending even to the criminal justice system as one that may "prevent people from playing a full role in society" (Voyer 2003: 6).

Social inclusion and the process of criminal law reform

Process is critical to social inclusion: it is simply impossible to practice inclusion in theory. Inclusive outcomes can be achieved reliably only through the participation of the excluded in the process. According to Inclusion for All, "Young participants suggested that representation was key to inclusion.... They thought government research and policies should be aligned with the needs and priorities of the people they serve, and the people most affected by the issues should establish the priorities" (Canada, Departments 2002: 28).

Concretely, attention to process means that socially inclusive criminal law policy and litigation must be developed by and with those socially excluded by criminal law; that those historically excluded must constitute a critical mass in this process; and that the process must come to grips with the history and forms of that exclusion. Dow Marmur quotes Irving Greenberg in arguing that attention to history must precede inclusion: "We are called upon to remember our past in order to act ethically in the present" (2002: 5). Saloojee argues, therefore, that social inclusion demands that both the present manifestations of racism and the history of white supremacist practices be detailed and analysed: "[t]he various manifestations of racism as important forms of social exclusion need to be tabled before there can be a meaningful and constructive discussion of social inclusion. Thus for social inclusion to matter, for it to resonate, it must provide space for a discussion of oppression and discrimination" (2002: 1).

The process of criminal law reform has been exclusionary, both historically and more recently. We need to interrogate the historical and current use of criminal law to colonize Aboriginal peoples and to separate them from their lands before we can confront the task of reforming criminal law so that it does not perpetuate Aboriginal exclusion (Kaiser 1992). Our history of criminalizing the indigent and the homeless through laws prohibiting vagrancy (R. v. Heffer) and nightwalking (Shaver 1993) must be analysed, as must criminal law's failure to effectively condemn the use of deadly force by police against African-Canadians (Glasbeek 1993; Pedicelli 1998). Although there are specific and impressive examples of criminal law reforms driven by broad-based public interests, such as the gun control laws and the 1993 sexual assault law reforms, most law reformers acknowledge that reform generally...