Background

How We Got Here

In December 2021, the Minister of Justice and Attorney General of Canada was mandated by the Prime Minister to develop Canada’s Black Justice Strategy with the support of the Minister of Housing and Inclusion and Diversity, and in consultation and cooperation with Black communities, leaders, scholars, provinces and territories. The work is led by Canada’s Black Justice Strategy Team at the Department of Justice Canada, and supported by the Federal Anti-Racism Secretariat at Canadian Heritage. For decades, Black communities and the organizations that support them, advocates, academics, and many others have called for solutions to address the overrepresentation of Black people in Canada’s CJS. These calls have been most recently amplified following the murder of George Floyd by a police officer in Minneapolis, Minnesota in the summer of 2020, which sparked a global (re)awakening to the presence of systemic anti-Black racism in our society. Attention to the policing of Black people in Canada, and our experiences throughout the CJS, gained even greater prominence and sparked further calls for change. These calls have also come from international agencies such as the United Nations and Amnesty International. Canada’s Black Justice Strategy comes in response to these calls and aligns with Canada’s formal recognition of the International Decade for People of African Descent.

To actualize Canada’s Black Justice Strategy, the Department of Justice Canada engaged with Black communities and their leaders from across the country. The formation of Canada’s Black Justice Strategy Steering Group was subsequently announced on February 15, 2023, in Ottawa by the Minister of Justice and Attorney General of Canada. The Steering Group is comprised of nine members, with diverse backgrounds and professional expertise, from jurisdictions across Canada. The mandate of the Steering Group is to provide strategic advice to the Department of Justice Canada and other federal partners on key elements for the development of the Strategy. Two members chair the Steering Group and will coauthor the Strategy report and recommendations. The Steering Group is an independent community-led group that is not part of the Government of Canada, but is funded by the Department of Justice Canada to do its work at arm’s length from the Government.

Understanding our history

In order to move forward with a workable justice strategy for the twenty-first century and beyond, it is crucial that we understand the long, tortured relationship people of African descent have had with the Canadian legal system. One of the most horrific chapters of our history is the transatlantic trade of enslaved persons, first recorded in New France in 1628, where both Black and Indigenous persons were held as slaves. The lives of enslaved persons were regulated by laws, which considered them to be property and which dictated their family lives and religious affiliation. It was a criminal offence to try to escape enslavement, or for a free person to encourage an enslaved person to run away (Cooper, 2006).

The 1763 treaties between France and Great Britain, which ceded Quebec to the British, specifically allowed Quebeckers to keep their slaves, and the scourge of enslavement touched Upper Canada and the Maritimes as well; United Empire Loyalists fleeing north were allowed to own slaves, and English-speaking provinces had laws regulating slavery up until 1834, when the British outlawed it in all “their” territories (Henry, 2016). Even after abolition, Ontario collaborated with slave owners seeking extradition of slaves who had escaped to Canada by passing the Fugitive Offenders Act, by which Canada could return slaves to their former owners if they were alleged to have committed a serious crime in the United States (Henry, 2022).

Canadian law continued to be used as a tool of inequality and anti-Black racism well past the days of enslavement. The well-known story of Viola Desmond illustrates how de facto racial segregation was legally enforced in Nova Scotia without calling it such (Government of Canada, 2022). Until 1962, Canada’s immigration laws were explicitly designed to exclude people of African descent and other people of colour, and to bar Black people from settlement on the Prairies, a position explicitly endorsed by Canada’s first Prime Minister, Sir John A. Macdonald (Farber, 2014). People of African descent were kept out of Canada through “remarkable efforts” including “selective enforcement of regulations, deception, bribery, and other questionable methods, and through legislation that allowed Canada to deny entry on the basis of nationality or ethnicity” (Mooten, 2021).

Understanding our legal history

A history of injustice and inequality can be found not just in Canadian laws, but in Canadian court decisions. All too often, the courts have ignored or even defended racial discrimination. For example, the Supreme Court of Canada in Christie v. The York Corporation ([1940] SCR 139) held in 1939 that a tavern in Quebec was within its rights to refuse to serve a Black patron in the name of “protecting its business interests” and “freedom of commerce.” Likewise, in Smithers v. R., the Supreme Court of Canada in 1977 ignored the harmful impact of the significant, repeated racial taunting to which a Black defendant had been subjected ([1978] 1 SCR 506). Amar Khoday writes that the Court “painted Smithers as a Black aggressor” and Cobby as “the sympathetic youthful white victim.” He goes on to accuse the Court of presenting the facts in a way that “strongly resemble a white supremacist narrative.” (Khoday, 2021).

In more recent times, Canadian courts have begun the long and arduous process of confronting this legacy. The Royal Commission on the Donald Marshall Jr. Prosecution found that racism played a part in the wrongful conviction of Mr. Marshall Jr, an Indigenous man, and that Black people in Nova Scotia also experienced racial discrimination in that province’s justice system. A number of recommendations were made to attempt to rectify this situation, including to increase Legal Aid coverage available to Black accused and to establish a Race Relations Division at the Nova Scotia Human Rights Commission (Hickman, Poitras, Evans, 1989).

In R. v. Parks, the Ontario Court of Appeal wrestled with the issue as to whether the jury in the trial of a Black accused should be challenged for cause (questioned) in an attempt to eliminate prospective jurors who held racist views toward Black people (1993 CanLII 3383 (ON CA)). The Court decided to allow this, and acknowledged the racism experienced by Black people in Toronto and the negative impact of anti-Black racism upon every facet of daily life. Significantly, the Court recognized the importance to a Black accused of questioning jurors in their case about potential racial bias.

Representation of Black people among justice system actors, such as counsel and, most significantly the judiciary, is a long-standing concern. Data is difficult to obtain, as the questionnaire used for judicial applications indicates only whether an applicant is a member of a “visible minority,” and not whether they are Black, even though Black lawyers and judges face unique challenges and discrimination specific to their African-Canadian identities. In the case of R. v. S. (R.D.), an African Nova Scotian youth was acquitted of assaulting a police officer by Judge Corinne Sparks, the first judge of African Nova Scotian heritage to be appointed (1994 CanLII 18957 (NS PC)). Because of comments she made when acquitting the youth, the Crown appealed her decision, alleging that there was a reasonable apprehension of bias by Judge Sparks against police, and the matter went all the way to the Supreme Court of Canada ([1997] 3 SCR 484). The Court dismissed the Crown’s appeal and affirmed the appropriateness of a judge using her life experience and social context to judge a case.

In recent years, Canadian courts have considered the use of Impact of Race and Culture Assessment reports, or IRCAs, in which a sentencing judge is presented with information as to how systemic anti-Black racism may have played a role in bringing a Black accused before the court. The Ontario Court of Appeal in Morris confirmed that this type of evidence is relevant to the sentencing process (2021 ONCA 680). An IRCA provides helpful evidence on this point and should normally be admitted. The Nova Scotia Court of Appeal reached a similar finding with regard to IRCAs in Anderson (2021 NSCA 62).

Canada’s Black Justice Strategy will examine and analyze these and other cases to understand their lessons for the justice system going forward; the goal is a justice system that operates free of anti-Black racism and bias, that is accessible to all, and that provides culturally-appropriate supports and opportunities for rehabilitation for those who come before it.

Statement of principle

The starting point for this Strategy is the work that has already been done across numerous disciplines to demonstrate that Black Canadians face barriers and differential outcomes in a variety of areas of Canadian society. It is important to note that Indigenous peoples in Canada are also disadvantaged in the criminal justice system and elsewhere. The overrepresentation of Indigenous people amongst incarcerated populations, their disproportionately negative treatment by police, and the discrimination they face in custodial institutions, are all well-documented. While this Strategy focuses on Black Canadians, we acknowledge the important work done to bring attention to the adverse experiences Indigenous people have had in the Canadian Justice system, including the Aboriginal Justice Inquiry, the Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls, and the work done around sentencing Indigenous offenders according to the principles expressed by the Supreme Court of Canada in R. v. Gladue ([1999] 1 SCR 688).

There are several instances where Indigenous and Black encounters with the CJS have been connected, such as the Royal Commission on the Donald Marshall Jr. Prosecution, referenced earlier. Indigenous and Black struggles continue to be intertwined; while there are differences in our circumstances, there are also a number of similarities, and we expect that many of the recommendations we make in this Strategy regarding Black experiences in the CJS will apply equally to Indigenous people.

What We Know

Social Determinants of Justice

Available evidence suggests that Black people are overrepresented across a range of negative justice outcomes (Cotter, 2022; Owusu-Bempah and Gabbidon, 2020). It is important to note, however, that the CJS does not operate in a vacuum. Indeed, Black experiences in society more generally inform levels of contact with, and the nature of treatment by, the CJS (Owusu-Bempah and Jeffers, 2022). Working to prevent Black people from coming into contact with the CJS, by addressing the social determinants of justice, represents a key pillar of the Strategy.

The social factors that contribute to Black experiences with the CJS can be described as the “determinants of justice” (Institute for Research in Public Policy, 2020). The social determinants of justice include income, employment, stable housing, education, and health (ibid). Where data are available, research demonstrates that Black people in Canada fare poorly across these dimensions, with lower-than-average incomes, higher rates of unemployment, decreased access to secure and stable housing, poorer educational outcomes in Canadian schools, and poorer health and mental health outcomes (Do, 2020; Dion, 2001; Teixeira, 2008; James and Turner, 2017; Robson et al., 2014; Public Health Agency of Canada, 2020). Anti-Black racism and systemic discrimination are often cited as a driver of these negative outcomes (Dryden and Nnorom, 2021; James and Turner, 2017; DasGupta et al, 2020; Public Health Agency, 2020).

Perceptions of the Justice System

With respect to the CJS, research has demonstrated that Black people in Canada generally hold more negative views of the police than do members of most other racial groups (Cotter, 2022; Sprott and Doob, 2014; Wortley and Owusu-Bempah, 2009, 2022). Cotter (2022), for example, found that Black people were almost twice as likely as white people (21% and 11%, respectively) to report having little or no confidence in the police, and that Black (and Indigenous) people held particularly negative views about the ability of police to treat people fairly or be approachable and easy to talk to. Findings are somewhat mixed with respect to perceptions of the courts and correctional system. Cotter (2020) and Wortley and Owusu-Bempah (2009) both found that Black survey respondents rated the performance of the court system better than white respondents. In both studies, these positive views were driven largely by the perceptions of Black immigrants, who rated court performance more positively than Canadian-born Black respondents. Here it is important to note that levels of contact and familiarity with the courts were lower among respondents than they were for the police.

Experiences with the Police

The policing of Black populations in Canada has driven much of the discussion about racial inequality in the CJS. An abundance of data demonstrates that Black people are overrepresented in police stop and search practices (Owusu-Bempah and Gabbidon, 2020), and where available, that neither elevated levels of criminality nor other important factors1 account for the higher rates of police contact (see for example Wortley and Tanner, 2003; Wortley and Owusu-Bempah, 2011). In line with the negative perceptions of police performance documented above, research shows that Black people hold quite negative perceptions of recent police contacts; often assessing these encounters with the police as unfair, characterized by disrespect, and leaving them feeling “upset” (Wortley and Owusu-Bempah, 2011).

These experiences can have serious outcomes; negative perceptions of police treatment (and of treatment by other justice actors) undermine the legitimacy of the CJS, which can impact the likelihood of cooperation with justice officials (for example, an individual’s willingness to act as a witness in court) and can contribute to criminal offending (Tyler, 1988; Tyler, 2003; Tyler & Fagan, 2008). Other research shows that Black accused are less likely to be referred to diversion programs that would keep them out of the formal justice system (Samuels-Wortley, 2022), experience higher rates of arrest for highly discretionary charges and are more likely to face poor-quality charges with a low probability of conviction (Wortley and Jung, 2020). Crucially, while limited, available data demonstrate that Black people are greatly overrepresented in police use of force cases, and are disproportionately more likely to be killed by the police in Canada (Singh, 2020). For example, an analysis of Special Investigation Unit (SIU) data from 2013–2017, conducted on behalf of the Ontario Human Rights Commission (OHRC, 2018, p. 3) showed that while Black people made up 8.9% of Toronto’s population, they accounted for:

Studies also show that in the Halifax area, Black people are “grossly-overrepresented” in street check statistics kept by the police themselves, and found little evidence that street checks lower crime (Wortley, 2019).

While available statistics paint a damning picture, police use of force represents a key area where further data is needed to fully comprehend the impact of policing on Black people in Canada.

Criminal Court Outcomes

Relatively little data on court outcomes disaggregated by race exists in Canada. Research on pre-trial detention has found that Black accused face a greater likelihood of being detained before trial than do white accused (Kellough and Wortley, 2002). Black accused in Ontario also spend longer in pre-trial detention than white accused (Mehler-Paperny, 2017). To address the relative dearth of research in this area, the Department of Justice Canada recently undertook a study utilizing national statistics to assess the likelihood of Black accused encountering specific court outcomes (Saghbini and Paquin-Marseille, 2023). In addition to their overrepresentation in Canadian criminal courts, relative to their representation in the general population, compared to white accused, Saghbini and Paquin-Marseille (2023, p. 6) found that Black accused were:

While there are some notable limitations to this study, the findings suggest that Black accused in Canadian criminal courts face differential and disproportionate outcomes, some of which may result in prolonged involvement with the CJS (Saghbini and Paquin-Marseille, 2023, p. 7).

Corrections

The over-incarceration of Black people in Canada, along with their experiences within correctional institutions, continues to garner significant public attention and concern. While a small number of studies document the overrepresentation of Black people in provincial institutions (see for example Owusu-Bempah and Wortley, 2014; Owusu-Bempah et al., 2021), limited data at the provincial/territorial level means that much of our understanding of the incarceration of Black people in Canada centres on the federal system. Recent reports from the Standing Senate Committee on Human Rights (2021), the Auditor General of Canada (2022), and the Office of the Correctional Investigator (OCI) (2022), all highlight the overrepresentation of Black people in federal corrections and document negative experiences across a host of correctional outcomes. The most current 2021-2022 data show that Black people make up 9.2% of the overall population in federal custody, despite making up 3.5%2 of the general Canadian population (OCI, 2022).

The Office of the Correctional Investigator’s 2022 annual report includes an “Update on the Experiences of Black Persons in Canadian Federal Penitentiaries”, which builds on its ground-breaking 2013 investigation, “A Case Study of Diversity in Corrections: The Black Inmate Experience in Federal Penitentiaries”. Consistent with the OCI’s findings in its 2013 report on Black prisoners’ experiences of federal incarceration, Black prisoners continue to fare poorly across a range of outcomes. Below is a summary list of the areas where Black prisoners face negative outcomes:

Notably, in its most recent study, the OCI argues that little has changed since its 2013 investigation. In some respects, the OCI suggests things may have gotten worse for federally incarcerated Black people. The OCI (2022) notes:

Despite CSC’s concerted efforts to make changes with respect to inclusion, diversity and anti-racism, incarcerated Black persons reported to OCI investigators that very little had materially changed for the better over the years. They continue to experience pervasive racism and systemic discrimination, have difficulties accessing culturally relevant services and interventions and must engage in correctional programming that does not reflect their lived experiences. It has been nearly ten years since the Office completed its investigation examining the experiences of Black persons in federal penitentiaries. Our review suggests that very little has changed for Black persons and in many respects, their situation has deteriorated even further. All of the issues identified in 2013 remain today. (p. 48)

As the OCI concludes the study: “All of the problems and concerns identified in the Office’s 2013 investigation, including racism, discrimination, stereotyping and labelling of Black prisoners remain pervasive and continue to raise significant concerns” (2022, p. 69). The concerns raised by the OCI are largely echoed in the Standing Senate Committee on Human Rights and Auditor General of Canada reports cited above.

Parole, Re-entry, and Reintegration

Given the gross overrepresentation of Black people in correctional institutions in Canada, parole, re-entry, and reintegration into the community represent another key focus of the Strategy. Available evidence from the federal system suggests that Black prisoners have lower grant rates on average than the general prisoner population for temporary absences, day parole, and full parole (OCI, 2020). An analysis of grant rates by race between 2012-2018 found that Black men in federal prisons were 24 percent less likely than white men to be granted parole in the first year they became eligible, even after controlling for other relevant factors like age, sentence length, offence severity, and risk assessment scores (Cardoso, 2022). Differential access to parole is especially pronounced for young Black prisoners, who are even less likely to be granted both day and full parole compared to the general prisoner population (OCI, 2017).3

Access to temporary absences, day parole, and full parole are important as they serve to facilitate the re-entry and reintegration process by enabling prisoners to transition back into the community while still serving their sentence. A lack of access to these forms of release by Black prisoners may be influenced by other forms of racial inequity they experience within correctional settings, such as those discussed in the previous section, “Corrections.” In light of this reality, the Standing Senate Committee on Human Rights has called on Correctional Service Canada (CSC) to “implement a strategy to reduce barriers to early release for federally-sentenced Black persons” (2021). CSC must make more concerted efforts to better prepare Black prisoners for release.

The re-entry and reintegration experiences of Black people are also heavily influenced by factors in the community. Through its work on the Reduction of Recidivism Framework Act, Public Safety Canada has recently identified five priority areas to assist offenders with their reintegration: housing, education, employment, health, and positive support networks. These priority areas align with the social determinants of justice outlined above.

Conclusion

It is clear that much work needs to be done to address the experiences and overrepresentation of Black people in Canada’s CJS and to ensure our equal protection under the law. In addition to acting upon the recommendations for change advanced by various parties, it is also imperative that we continue to build upon the promising initiatives currently in place:

Other important recommendations include:

What We Don’t Know

Our understanding of how Black people experience criminal justice in Canada is hampered by a lack of readily available data that is disaggregated by race. With several notable exceptions, Canadian criminal justice institutions do not systematically collect and publicly report this data. As such, much is left unknown. Key data gaps are presented below:

Pillars of Canada’s Black Justice Strategy

The Strategy centres on five key pillars, or themes, relevant to Black experiences with the CJS. The pillars are consistent themes that inform Black people’s experiences with the CJS. The pillars are as follows:

These pillars are the Strategy’s priority areas for reform and improvement, and they follow the stages of an individual’s involvement with the criminal justice system. The social determinants are the factors that impact an individual’s life before they come into contact with the justice system and that influence how they come into contact with it. We will be exploring ways in which crime, and therefore individual people’s involvement in the justice system, can be reduced by addressing inequalities elsewhere in society.

The pillar of policing refers both to over-policing and over-surveillance of Black communities which brings an individual to the attention of police, and leads to the detention and arrest of those suspected of criminal activity.

The Courts pillar will examine what happens once an individual stands trial, from the accessibility of legal representation, to the way judges are selected and trained, to the nature of the laws an accused is alleged to have broken. It will also address sentencing options and resources should the person be convicted. It will include recommendations for appropriate legislative changes and developments.

The Corrections pillar is concerned with the treatment of sentenced inmates in custodial institutions: the selection and training of correctional officers, the policies that govern daily life behind bars, and mechanisms for addressing complaints.

Since virtually all prisoners are eventually released once they have served their sentences, the pillar of parole, re-entry and integration will also look at the way parole is granted or withheld, the resources available for offenders once they are released into the community, and initiatives to reduce recidivism.

We expect that within each pillar, we will hear about diverse experiences specific to particular groups such as newcomers, youth, women, and others, and that we will hear from people in a range of roles, from justice system professionals to those who have been in conflict with the law to their loved ones and supporters.

Key Existing Recommendations

Please see Appendix A for a list of key areas of previous recommendations proposed to address the overrepresentation of Black people in the CJS and to improve their experiences within the system.