4 Discrimination and Overrepresentation in the Criminal Justice System

Inequities and overrepresentation are experienced by Black people at all stages of the criminal justice system: policing, courts and corrections. Again, it is important to recognize that Black people are not inherently more prone to committing crimes than any other racial group, including White people. Rather, it is the system itself that is criminogenic by virtue of its anti-Black racism and systemic discrimination, resulting in the overrepresentation of Black people in the system.

4.1 Policing

The policing of Black people has received attention for many years, especially in Canada’s larger urban centres. Several studies have been conducted by experts in the field. In 2020, a report prepared for the Ontario Human Rights Commission found that:

Black people are grossly over-represented in police use of force incidents. The data also reveal that this gross racial disparity cannot be easily explained away by racial differences in criminal history, civilian behaviour towards the police at the time of the incident, civilian weapons use, civilian mental illness, civilian intoxication or local crime rates. In our opinion, these findings are completely consistent with allegations of racial bias.Footnote 69

The report found that the disparities covered all types of police use of force from firearms use to “lower-level” tactics. However, the report goes on to say the following:

Nonetheless, a counter-narrative will inevitably emerge. This counter narrative will hold that racial disparity does not mean racial discrimination. In other words, it will be argued that racial disparities in police use of force tactics merely reflect legitimate police practices and that data-driven allegations of police bias only serve to damage police-community relations.Footnote 70

The point being made is that the debate regarding police use of force against members of racialized communities will continue. The debate could be advanced, however, if an official effort were made to invest in “the continued, systematic collection of disaggregated racial data on police use of force and other important police decisions.”Footnote 71 As well, all police services are urged to consider seriously a number of other steps to ensure racial bias does not negatively affect racialized communities. These steps would include, among others, screening against racial bias in recruitment procedures, effective anti-bias training, recruitment of more female officers,Footnote 72 and more community engagement leading to improved community relations.Footnote 73

Implicit in this list of steps is the need to address racial profiling. According to Maynard,

Racial profiling – surveillance or police encounters that occur because of stereotypes regarding race, ethnicity or religion – serves an important role in determining police practices. The assumption, then, that Black people are likely to be criminal results in more Black people being watched, charged and incarcerated.Footnote 74

Racial profiling is a “self-fulfilling prophecy.”Footnote 75 The more it occurs, the more likely the chance of an individual being found guilty of a crime, typically a minor one. Disproportionate surveillance of Black people, especially youth, in their own neighbourhoods is therefore more likely to result in the apprehension and charging of more Black people than White people for the same types of offence.

A report prepared by experts for a case at the Ontario Court of Appeal explained that in a 2005 survey of Toronto high school students,

…over 50% of the Black students reported having been stopped and questioned by the police on two or more occasions in the previous two years, compared to only 23% of White, 11% of Asian, and 8% of South Asian students. Similarly, over 40% of Black students said that they had been physically searched by the police in the previous two years, compared to only 17% of their White and 11% of their Asian counterparts.Footnote 76

Another survey, this one of Toronto adults in 2007, found that “Black residents were three times more likely to be stopped and searched by the police in the previous two years and that this racial disparity could not be explained by racial differences in criminality, drug and alcohol use, driving habits, use of public spaces, poverty, or residence within a high-crime community.”Footnote 77 In other words, there appeared to be no explanation for the stopping and searching of Black individuals other than the fact they were Black.

It is therefore not surprising that Black people have less confidence in the police than the rest of the Canadian population, except Indigenous people. A Justice Canada report stated the following:

According to the 2019 General Social Survey on victimization, nearly one in five (18%) Black people reported having “not very much” or “no” confidence in the police, which is more than double the proportion among the non-Indigenous, non-racialized population (8%).Footnote 78

Although some provinces are banning the practice of police issuing contact cards or “carding”, it provides an example of racial profiling that has had a significant impact on Black individuals, particularly young Black men. Maynard points out that an analysis by the Toronto Star showed that between 2008 and 2011, the Toronto Police Service handed out 1.25 million contact cards, of which nearly one-quarter were served to Black individuals.Footnote 79 Racial profiling by police is not limited to Toronto. Other police services have demonstrated the same practices in urban centres, as well as in rural and remote parts of the country.

Racial profiling by Montreal police has often been alleged. A Quebec Superior Court judge ruled in a 2024 class-action lawsuit involving a Black man and a Black rights organization seeking damages from the City of Montreal (and the Montreal police service) that the “phenomenon of racial profiling that manifests from the Montreal police is systemic” and acknowledged that the problem had existed for decades.Footnote 80 The judge reprimanded the city and the police service, and damages were awarded.

Similarly, in 2025 a Quebec Superior Court Judge approved a class action lawsuit over systemic racial profiling in traffic stops. The lawsuit named police in eight cities and the Attorney General of Quebec.Footnote 81

In British Columbia, police services throughout the province, particularly those in Vancouver and other urban centres, have been confronted with multiple allegations of racial profiling and excessive use of force in cases involving Black and Indigenous individuals, as well as individuals with mental health challenges. In a report prepared for British Columbia’s Office of the Human Rights Commissioner,Footnote 82 Scot Wortley concluded as follows:

Indigenous and Black people are either grossly or significantly over-represented in British Columbia arrest statistics. Furthermore, the data indicate that a great deal of police activity involves people experiencing mental health issues. Racial disparities likely result from a combination of higher rates of offending, police bias, and civilian reporting practices. Regardless of the cause, the over-representation of Indigenous, Black and other people of colour in police statistics is a problem that can no longer be ignored.

Similar issues have been found in Halifax. Wortley prepared an independent report for the Nova Scotia Human Rights Commission into police street checks in Nova Scotia in 2019.Footnote 83 He found that Black people were significantly overrepresented in street checks and that the results were often traumatizing for the individuals stopped.

It follows that Black people, while being disproportionately profiled and stopped by police, are also likely to be charged more frequently than their White counterparts. Frequently those charges have no legitimate basis and are inappropriate. This is often borne out in the prosecutorial review of charges before court proceedings and evidenced by the fact that Black people are more likely than White accused to encounter a withdrawal, dismissal or discharge of charges.Footnote 84

The evidence and analyses outlined above all point to a reality commonly known as over-policing.Footnote 85 Clearly, Black populations are over-policed. However, there is another serious issue faced by Black people known as under-policing. These terms are not contradictory – both occur. Black populations are under-policed when their collective or individual rights are not acknowledged or protected by police as they would be for White people. Anti-Black racism among police services and individual officers can lead to the downplaying of police responsibilities regarding Black people, and to inadequate police responses to legitimate requests for assistance by communities and individuals.Footnote 86

4.2 Criminal Courts

A case involving a young Black man was heard in the Ontario Court of Appeal in 2021. The Court began its written decision with the following:

It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis.Footnote 87

With that statement, the Ontario Court of Appeal in 2021 acknowledged the profound problems for Black people in Canadian society and in the criminal justice system. The Court reduced the sentence set by the trial judge in light of the convicted individual’s experience with racism. Two cases heard earlier in the Ontario Court of Appeal also determined that anti-Black racism and discrimination in the justice system are serious issues, although in those cases the court noted it is the seriousness of the offence itself that must be paramount in sentencing.Footnote 88

A 2023 report by the Department of Justice provides an analysis of Black involvement as accused in criminal courts over an eleven-year period (2005/06 to 2015/16). The findings address issues facing Black people compared to White individuals and suggest the following:

…that Canadian criminal courts are contributing to differential and disproportionate outcomes for Black accused. Some of these outcomes (e.g., more likely to be sentenced to custody) result in prolonged involvement with the CJS.Footnote 89

Black accused are also more likely than White accused to be held in pre-trial detention (remanded to custody), even involving the same charge and similarity in other conditions.Footnote 90 This is often an additional disruption for the individual accused and their family and is another indication of discrimination.

Saghbini & Paquin-Marseille arrived at insightful conclusions, despite gaps in certain types of data. While they acknowledge that further research is required at all stages of the criminal justice system in order to better understand processes and results, they conclude with the following:

In sum, these findings suggest that Canadian criminal courts are contributing to different and disproportionate outcomes for Black people. Some of these different and disproportionate outcomes (e.g., being more likely to be sentenced to custody) can be described as contributing to the overrepresentation of Black people in the CJS by further entrenching them into the system.Footnote 91

Again, more disaggregated data and detailed research are required to determine why this is the case.

While progressive work remains to be done, there are signs that the justice system is beginning to act on the issues facing Black accused. One initiative involves the use of Impact of Race and Culture Assessments (IRCAs).Footnote 92 As described by the Department of Justice Canada,

IRCAs are pre-sentencing reports that help sentencing judges to better understand the effect of poverty, marginalization, racism, and social exclusion on the offender and their life experience. IRCAs explain the relationship between the offender’s lived experiences of racism and discrimination and how they inform the circumstances of the offender, the offence committed, and the offender’s experience with the justice system…. [As a result,] sentencing judges may recommend alternatives to incarceration and/or culturally appropriate accountability measures within a sentence of incarceration.Footnote 93

The use of IRCAs by judges may be a positive development. However, the extent of buy-in by judges and the frequency with which they are requesting IRCA reports is in question. The use of Gladue Reports in the Indigenous context has proved for several years to be an important component in judicial decision-making,Footnote 94 although it has been widely criticized as not affecting sentence length.Footnote 95 The same could be true in the sentencing of Black accused with the application of IRCAs. The federal government has indicated its support for expanding the use of IRCAs beyond sentencing to other decision-making points throughout the criminal justice system.Footnote 96 However, according to the Canadian Civil Liberties Association (CCLA), “to date, the case law and academic scholarship has lagely focused on sentencing, not on judicial interim release.”Footnote 97 Evaluative research is required to assess the effectiveness of IRCAs and to identify changes, as required.

The CCLA also addressed the issue of Black accused being disproportionately denied release on bail. While s 493.2(b) of the Criminal CodeFootnote 98, together with s 515 (13.1)Footnote 99 hold promise in this regard, the CCLA notes that “more research is necessary to evaluate whether and how bail courts are using s 493.2 and legal principles from the sentencing context to inform bail decisions for Black accused people – and whether such measures are having any impact on the over-representation of Black individuals in remand detention.”Footnote 100

4.3 Corrections

As noted above, Black offenders are more likely to be sentenced to incarceration than White offenders. Further, Black people are 36 percent more likely to receive a long-term custodial sentence of two years or more (federal penitentiary time).Footnote 101

In terms of admissions to provincial institutions, Black adults (aged 18 years and more) were overrepresented compared with White accused in 2020/21 (custody and community supervision).Footnote 102 Similarly, Black youth (aged 12-17) were overrepresented in provincial correctional services, in both custody and community supervision. “Black youth counted for 10 percent of provincial corrections populations while representing only 4 percent of the overall youth population in those provinces.”Footnote 103

Various factors suggest anti-Black racism and racial discrimination exist in correctional facilities. For example, use-of-force incidents in federal institutions disproportionately involved Black offenders. While accounting for 9 percent of federal inmates, Black offenders accounted for 12 percent of all use-of-force incidents between 2015 and 2020. On the other hand, while White offenders represented 52 percent of the total incarcerated population, they accounted for 42 percent of use-of-force incidents.Footnote 104

Most federal prisoners are housed in medium security institutions. However, like Indigenous offenders, Black offenders are disproportionately housed in maximum security facilities and placed in Structured Intervention Units (SIUs).Footnote 105 In part, at least, this could be due to biased assessments of Black offenders with respect to their potential for higher risk behaviour, low motivation, and low potential for reintegration into society. Yet Black offenders have lower rates of reoffending on release and lower rates of returning to custody than their White counterparts.Footnote 106

A range of problems face Black inmates, as demonstrated in a 2013 special study of Black inmates in federal penitentiaries facilitated by the Office of the Correctional Investigator.Footnote 107 The study found negative outcomes and experiences for Black prisoners in several areas, including security classification, access to programming and employment opportunities, involuntary transfers, institutional discipline, the use of force, solitary confinement, and parole. In its 2022 Annual Report, the Office of the Correctional Investigator found continuing “institutional racism, challenges in accessing culturally-relevant services and interventions, and correctional programming that does not reflect their lived experiences, as important challenges facing Black prisoners.”Footnote 108

The Office of the Correctional Investigator concludes its 2022 report by stating that “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”.Footnote 109 Negative assumptions about Black people are thus perpetuated, resulting in ongoing inequities. The fear of anti-Black racism and the subsequent stress can easily affect life chances and choices and exacerbate mental health problems among Black prisoners.

4.4 Victimization

As noted earlier in the report, Black people are overrepresented as homicide victims at a rate, four times higher than the rate for non-racialized people. Additionally, in 2023 Black people experienced the highest proportion of hate crimes (784 incidents) targeting a given race or ethnicity.Footnote 110

Black people are also more likely to report lived experiences of physical or sexual abuse during their childhood. According to Statistics Canada, in 2018, a higher proportion of Black people (32%), than non-Black people (27%), aged 15 years or older, reported experiencing one or more incidents of physical or sexual abuse by an adult before the age of 15.Footnote 111 Black women were also more likely to have been physically or sexually assaulted in their lifetime than other racialized women.Footnote 112

Although there is evidence of the overrepresentation of Black victimization through self-reported victimization surveys and police homicide and hate crime data, the extent of Black victimization is still unknown due to a lack of disaggregated data and race-based data collection practices. The Statistics Canada Disaggregated Data Action Plan, currently in progress, may help address this gap.Footnote 113