Criminal Court and the Legal System

Respondents shared that there tends to be a deficit in terms of the understanding that Black people have about their rights and legal processes. Additionally, consensus was reached regarding the perception that there was prevalent anti-Black racial bias within the legal system. Participants perceived hostility towards Black individuals, including offenders, accused individuals, victims, families, community members, and experts. Participants found their experience in courts and throughout the legal process to be unpleasant and frustrating. Judges and lawyers treated them unfairly and often failed to consider their interest in legal proceedings. Participants felt that judges used a tougher approach in bail hearings and sentencing involving Black people and observed considerable discrepancies between outcomes for different racial groups. Members of Black communities asserted that they received harsher sentences than white people for committing the same or lesser crimes, including for first-time offences. Additionally, participants took issue with the lack of representation of Black people in the legal system and a lack of relevant supports. The inadequate number of Black lawyers and justices in the country also means Black people do not have the option of accessing legal professionals with shared lived experiences who can identify with them and understand their concerns. They perceived that this lack of shared understanding increased the possibility of being presumed guilty or that important details would not be communicated in legal proceedings. They also perceived that anti-Black racism was prevalent within Legal Aid system; services were often not tailored to suit their needs and lawyers were not patient enough with them. Overall, participants felt that there was an unequal application of the law when it came to receiving bail, alternative sentences, length of sentences, considerations for victims, and across other legal outcomes:

“The court system does not "protect or serve" us. It works to keep us oppressed.” (Community member in British Columbia)

“I have had white friends get off for things a lot worse than what I was charged with. My sentence was doubled for the same crime as my white friends and they received community services but no jail time." (Community member in British Columbia)

“Usually, Black people get stiffer sentences and experience less leniency by the courts.” (Community member in British Columbia)

"It seems to be biased based in favor of persons from different races - who even with worse charges get lesser sentences or pleas." (Community member in British Columbia)

“I have very little faith in the system's responsiveness to the needs of Black victims and its ability to be fair and just to accused Black people.” (Community member in Ontario)

“I was given a weapon ban times 3 for drug charges and ended up in jail for a bb gun. I am currently fighting to get bail.” (Community member in Ontario)

“Understand that racism exists, notify the reason it does, how can we make it stop.” (Community member in Québec)

“People do not want to go against the system which is unfair.” (Community member in Québec)

Participants shared that there is a lack of representation and respect when it comes to legal advocacy and the legal system. Some participants disclosed that they felt compelled to accept a plea deal and confess to guilt even when they were innocent out of fear of facing more severe sentences. Some perceived that the lack of representation of Black judges, defense attorneys, Crown prosecutors, and jurors facilitated poorer outcomes for them through a lack of care or difficulty relating their own life experience to Black people in Canada. In their own words, community members and service providers in Ontario, Québec, and elsewhere in Canada shared:

“I did not know that Black lawyers existed.”

“My white lawyer wanted me to say I was guilty of a crime I didn’t commit. My case kept getting put off for no reason. No one in authority looks like us, and my lawyer seems to be working against my best interest. All, if not most, of the jurors are always white. So much for having a jury of your peers.”

“I took a plea deal for 10 years for a crime I did not commit because I feared that the jurors couldn’t relate to me and I didn’t want to put my life in their hands. There were no Black jurors and people tend to look at themselves as family and others as not.”

“The system is racist. Most of the people in the system are white. White people don’t understand our culture and where we live, so they can’t relate. They must listen to young people. We have great ideas as well.”

“Any efforts to increase representation of staffing with new Black hires needs to ensure that 50% of those hires are Black folk with demonstrated awareness and interest in effecting change towards systemic barriers. A lot of times, Black people in the system assimilate to the practices and are not instrumental to the cause. But Black presence is important.”

Many participants stressed that court-appointed lawyers and more affordable lawyers often have heavy caseloads. They felt that having a heavy caseload limits the amount of time a lawyer spends with their clients, the effort they are willing to put forth, and the efficacy of legal strategies used. They stressed that all of this leads to poorer outcomes in the justice system:

“Equal, but not necessarily equitable. One example is that a legal aid clinic in the NWT is available in only large centres, not in communities. Those with money will have a harder time finding a lawyer that they feel authentically advocates for them, and those without money will be without representation or rely on legal aid where the lawyers may not be able to help with all legal issues, have a cap on hours, or may be burnt out. These communities often have less personal connection and supports within the legal field as well”. (Community partner in Northwest Territories)

"Someone I know well went through the justice system without any support. They had legal aid and that was it. In another incident they pursued a known lawyer to take their case as they were assaulted by several RCMP in Vancouver. If it wasn't for their family stepping in they would have been in jail for 15-20 years. There was no equity or support provided and their legal aid lawyer had clearly made a deal without their client's consent based on their actions. The family chose to pay for a lawyer when it came to sentencing and that was the difference.” (Community member in British Columbia)

“I felt like my own lawyer was against me and he did the barest minimum, and I was not sure why.” (Community member in Saskatchewan)

“Sold by their lawyer.” (Community partner in Québec)

“Some lawyers seek to prolong proceedings, thereby involving additional costs.” (Community partner in Québec)

“When my son was going to trial, I asked the lawyer 3 years before trial to have him assessed by a psychologist as I had serious concerns about his mental health. They waited until the last few months before trial. The psychologist did not speak to anyone else in the family to get a clear understanding, he only spoke to my son and when he did he was asked a few questions. My son was not comfortable speaking about his traumas with someone he just met. After the brief phone call the psychologist told the lawyer he was fine. I called the psychologist and explained the situation he agreed that something sounds like its wrong. In my experience this ‘experienced’ psychologist did not understand mental health, trauma, grief and what it looks like in Black people. They ran out of time, and we were not able to have him properly assessed.” (Community member in Ontario)

“We take plea deals to get out of hell even if we’re innocent.” (Community member in Ontario)

“Not all legal resources are equal. The more money you have, the more and better access you have. One’s financial resources play an important role is getting legal representation. Most times the cheaper options are overburdened to provide services that can compete with their counterparts”. (Community member in Northwest Territories)

Participants also noted feeling like they did not receive adequate supports to assist them with navigating through the justice system:

“I have not heard of any program that helps to promote access to the justice system for Black people in BC.” (Community member British Columbia)

“Sometimes the release is not available to our young people because they cannot find the sureties to bail them out, and they end up sitting in court.” (Community member British Columbia)

“In the moment when going through legal battles, you need an organization that will really listen to what you have to say and attempt to not only do what they can to help but really assist in helping your specific situation.” (Community member in Nova Scotia)

These services are important because understanding what is happening in the legal process, what is being asked of you, and how you present yourself in legal proceedings can shape outcomes. For example, one woman was presumed to have a mental illness because she did not speak the languages used in court. Having adequate support could have helped identify the need for a language interpreter, sped up the legal process, and removed the need for a mental health assessment through the courts:

“In certain regions, particularly in Lanaudière, legal translation services, particularly in African languages and dialects, are very difficult to obtain. One of the participants from the Lanaudière region told us that her client spoke neither French nor English. The Court requested a psychiatric evaluation for the woman, since she seemed, according to the first, confused and very unresponsive. However, the psychiatrist rightly pointed out that the lady had no mental health problems, she simply did not master the languages in which the Court spoke to her.” (Community partner in Québec)

Participants perceived that the court process was unnecessarily long, financially draining, and significantly interrupted their lives. When considered alongside the racial inequities in policing that disproportionately brings poor quality cases involving Black people to the courts, having to endure the taxing legal process for charges that are later dropped is an added injury. In their own words:

“I experienced constant postponing and wasted trips to the courts only for all charges to eventually be dropped.” (Community member in British Columbia)

“One young person was in court for, I think, almost two years, after which the charge was withdrawn.” (Community partner in British Columbia)

“When the charge is withdrawn or dismissed, young people can leave being very angry, and I can understand that.” (Community partner in British Columbia)

Importantly, new research from the Department of Justice revealed striking findings about the racial make-up of court outcomes. Specifically, as compared with white accused “Black accused were more likely to encounter a withdrawalFootnote 4, dismissalFootnote 5 or dischargeFootnote 6, less likely to be found guiltyFootnote 7 and encounter a stayFootnote 8, and equally likely to be acquittedFootnote 9 (except for Black men who were more likely to be acquitted)” (Saghbini & Paquin-Marseille, 2023, p. 18). The authors also found that on average Black accused of non-violent offences were more likely to receive a probationFootnote 10 sentence than white accused between 2005 and 2016 (p. 20). However, they found that Black youth accused were 17% less likely to receive a probation sentence (p.20) and Black accused were 9% less likely to receive a conditional sentenceFootnote 11 (p. 21). Alarmingly, they found that on average Black accused are 24% more likely to receive a custodial sentence and Black youth were twice as likely to receive a custodialFootnote 12 sentence when compared with their white counterparts (p.21). Furthermore, with respect to the length of custodial sentences, Black accused were equally likely or less likely to receive a short sentence (1-3 months) and more likely to receive a medium or long sentence (p.24). Specifically, Black accused were 12% more likely to receive a sentence of 3-6 months (p.25), 38% more likely to receive a sentence of 6-12 months, and 36% more likely to receive a sentence of 2 years or more (p. 26). Saghbini and Paquin-Marseille’s (2023) findings both support and contradict some of the perceptions of court outcomes shared by those consulted throughout the engagement sessions. They also serve to identify key equities and inequities in racial outcomes at court.

The experiences of participants noted above illustrate how easily racial injustice can compound to have a profound impact on the lives of Black. Individuals who should not have even been charged in the first place lose money, time, work, etc. to seek legal remedies while exposing themselves to the legal system, which may or may not find them innocent. These experiences can perpetuate a lack of trust and faith in the justice system and make Black people in Canada feel afforded all the rights and freedoms purported to be owed to Canadians. To help reduce some of the discrimination in the legal process, participants stressed a need for different methods to ensure justice for Black people in the courts and broader legal system. They asserted changes must be made to consider how social context is relevant for understanding why a Black person appears before the courts. They noted this is especially important because of the overwhelming lack of awareness legal actors have pertaining to systemic racism. For example, a community member in Québec said:

“There's a decision of the Supreme Court, the name is RDS, 1996. That story, like the intervention in a police interaction with Black youth, went to the Supreme Court. And the first Black judge for Halifax was on the bench. And she said on the bench, you know, we know that in that area of Halifax, there's an encounter with the police, we know that. It went in front of the Supreme Court because they said that the judge was partial because she came with her knowledge. The court was divided about that. But they discuss the notion of social context and [that] the judge should know what's happening with respect to diverse communities. So, this decision exists, it has been applied, but there's issues with it because people say that we need some expert to prove how Black people are treated. But the judges are supposed to judge us. They're supposed to do that. So, because if you look at the question to [get] an expert to be able to explain our position, since we are poor, generally as a community, we won't all be able to make the proof.”

Impact of Race and Cultural Assessments (IRCAs) were highlighted as an integral method for bringing relevant social context and background factors into the legal process. Participants called for standardizing IRCAs in the courts and providing more resources, training, and funding supports to increase their usage:

“IRCA needs to be mandatory for all cases involving Black people. It must be well funded, and we need to increase the availability of the reports across the province especially rural communities that don’t get the support. We need more balcony people who understand the experiences of Black people.” (Community partner in Alberta)

“I've attended a lot of those workshops in Ontario, there's an organization doing them, and they talked about how they have a huge backlog. I think the government knows, right, all of these tools that can be - it doesn't reform the system, but it can have an impact. It's like there is minimum funding, so it can operate, but it can't be in a way that's transformative.” (Community partner in Québec)

Nevertheless, community partners shared that lawyers were not always aware of IRCAs:

“IRCA seems to be a mechanism unknown to many lawyers who participated in the public consultations.” (Community partner in Québec)

As such, efforts should be made to increase awareness of their usefulness. Participants also shared a fear that the IRCAs could negatively impact Black people coming before the courts. This would happen if rather than viewing details presented in IRCAs as mitigating, judges instead view the IRCA in a lens that pathologizes Black people and serves as evidence that the defendant would be resistant to rehabilitation or incapable of being rehabilitated, leading to a longer or harsher sentenceFootnote 13. In their own words:

“When my friend went for sentencing the Impact of Race and Assessment report benefitted him but with me the report gave me extra time and was used against me.” (Black male currently incarcerated in Ontario)

“One of our partners told us that this procedure can be compared to a double-edged sword. That is to say that in certain cases, the IRCA assessment can be used against the racialized person.” (Community partner in Québec)

These concerns about how the IRCAs may worsen outcomes for Black people suggests a pressing need to train judges and lawyers about addressing systemic racism and to meaningfully interpret the IRCAs as a tool to inform bias-free sentencing decisions and to employ sentences that are alternatives to incarceration to reduce the overrepresentation of Black people in the prison system. To increase the efficacy of IRCAs and other initiatives to bring social context into court, participants also called for increasing the use of restorative justice within the community and in sentencing processes for Black people. Restorative justice refers to:

“An approach to justice that seeks to repair harm by providing an opportunity for those harmed and those who take responsibility for the harm to communicate about and address their needs in the aftermath of a crime. Restorative justice: Provides opportunities for victims, offenders, and communities affected by a crime to communicate (directly or indirectly) about the causes, circumstances, and impact of that crime, and to address their related needs. [It] is based on an understanding that crime is a violation of people and relationships and is based on principles of respect, compassion and inclusivity. Encourages meaningful engagement and accountability and provides an opportunity for healing, reparation and reintegration. [It] uses processes, including conferences, dialogues and circles, and is guided by skilled facilitators. [It] is a flexible process and can take different forms depending on the community, program, case, participants, or circumstances.” (Federal-Provincial-Territorial Ministers Responsible for Justice and Public, 2018, n.p).

Williams (2013) notes that restorative justice should serve as “a transformative response to the oppressive dimensions of the criminal justice system” (p. 420). The community partner, Clinique Juridique de Saint-Michel, provided insights on Hoodstock, a Montreal-based organization actively involved in the engagement sessions. Hoodstock focuses on implementing a restorative justice program specifically tailored for Black communities. They shared:

“Through the Hoodstock program, participants have the opportunity take part in healing retreats through Afrocentric workshops on topics such as Black history, kasàlà poetry, yoga, meditation, managing emotions, self-reflection, and self-esteem to work on rebuilding oneself. The Justice Hoodistique project also offers psychosocial follow-up and circles (cercles hoodistiques), where the accused, their social circle and the victim (if they decide to participate) can jointly find the best approach to repair the harm that was caused. This project was inspired by the alternative measures program used in Indigenous communities. …Hoodstock told us about the importance of having programs that are created by and for Black communities, since many people have developed a mistrust of the justice system as a result of the abuse of power by police officers, the lack of access to justice, systemic racism and racial profiling.” (Community partner in Québec)

When speaking about Nova Scotia’s Restorative Justice initiatives, Williams (2013) notes that there is a need to change what occurs at the “macro and micro level…to avoid perpetuating racial and intersecting forms of inequality” (p. 421). One such macro change may be to address sentencing frameworks. Mandatory minimums and other required components of sentencing frameworks limit the discretion judges can use and constrain their ability to choose safe, appropriate, and meaningful sentences informed by contextual knowledge and designed to rehabilitate offenders and repair harm without using a custodial sentence. Community engagement participants also shared that Crown prosecutors and other legal actors often do not recommend alternative sentences and that the scarcity of support for alternative sentence programs limits access:

“Many people do not know their rights, prosecutors do not mention possible alternatives, and this contributes to systemic racism, since halfway houses are at their full capacity, despite the absence of a racialized person within them.” (Community partner in Québec)

“More popularization is needed, since many individuals who have committed minor crimes - and who could benefit from this alternative - are not informed of this alternative or simply are not referred to it by prosecutors.” (Community partner in Québec)

As a community partner in Québec notes:

“There is an overrepresentation of Black people in the justice system. There is an under-representation of them in diversion programs which would allow them to not have a criminal record”.

Overall, participants experienced and perceived inequities in the courts and in legal proceedings. The research by Saghbini and Paquin-Marseille (2023) demonstrates that in some ways Canadian courts mediate some of the racial harm imposed in the policing stage through unfounded arrests and charges. Nevertheless, the experiences shared by participants clearly illustrate how the legal system can also impose harm through racial discrimination, bias, harsh sentencing, a lack of Black representation, and painfully long processes. Community engagement participants shared recommendations to address these issues and additional legislative changes to help shift some of the racial inequities noticed across the other pillars. These can be found in the section on “courts, legal process, and legislative recommendations”.