Courts and legislation

The focus in Canadian criminal law is on the actions of individuals. Reparatory justice, on the other hand, is concerned with the injustices committed by the state, such as the centuries of oppression that Black people have experienced in Canada, which, as noted by participants in the consultations and online survey, the Canadian government has still not fully acknowledged or remedied. Participants also noted that the Canadian justice system offers insufficient methods of dealing with present-day acts of racism and discrimination. Acts, such as the illegal withholding of wages, mistreatment of foreign workers, sexual harassment of Black immigrant women by employers, and racist treatment of Black employees by co-workers or supervisors, are not addressed by criminal law, but complaints can be made to human rights or labour tribunals. Complainants often find these processes to be lengthy with frequent delays, and to be inadequate in understanding and dealing with anti-Black racism. Transformative change in the justice system begins with the recognition that it has caused harm, and to earn the trust and confidence of African Canadians, the justice system must make reparations for this harm.

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 lack of research in this area, Justice Canada recently undertook a study using national statistics to examine specific court outcomes for Black accused (Saghbini and Paquin-Marseille, 2023). In addition to their overrepresentation in Canadian criminal courts, relative to their representation in the general population, and in comparison to white accused, Saghbini and Paquin-Marseille (2023, p.6) found that Black accused were:

• more likely to encounter a withdrawal, dismissal or discharge;
• less likely to encounter a stay of proceedings or to be found guilty (including guilty pleas);
• equally likely to be acquitted;
• less likely to receive a fine or a conditional sentence;
• more likely to receive probation or a custodial sentence; and
• more likely to receive long-term custodial sentences of two or more years.

The pillar of the social determinants of justice demonstrates that poor outcomes in a number of areas contribute to Black individuals disproportionately coming into conflict with the law, and the policing pillar shows that over-policing and excessive surveillance can trigger a cascade of interactions and interventions within the justice system, each one affected by anti-Black racism. The courts and legislation pillar recognizes that many injustices and traumas have already happened by the time an individual accused person attends court. It also acknowledges that anti-Black racism is also faced by Black people who are part of the justice system in ways other than being accused persons, such as justice professionals, court staff, witnesses, or loved ones of accused persons.

The War on Drugs has disproportionately harmed African Canadians and has also been very destructive in the countries of origin of many Black people. Justice Canada (2017) has previously found, for example, that mandatory minimum penalties or sentences have a disproportionate impact on Black people, contributing to their overrepresentation in correctional facilities. Between 2007/08 and 2016/17, Justice Canada (ibid) found that drug offences accounted for 75% of offences punishable by a mandatory minimum penalty for which offenders were admitted to federal custody. We recognize that the Government of Canada has taken steps to reform the approach to dealing with controlled substances. However, these measures do not go far enough, and there is an urgent need for immediate action.

An individual’s involvement with the criminal law as an accused begins when they are arrested and charged with an offence. Charging procedures vary across the country. In Quebec, British Columbia and New Brunswick, Crown attorneys pre-screen charges and determine whether it is appropriate to continue with the prosecution. A Statistics Canada report showed that in 2017 in Ontario, a province where police lay charges, almost half of those charges ended up being withdrawn or dismissed before trial (Statistics Canada, 2023).^{Footnote 7} Not only does this mean that a large number of people had to live with the anxiety and uncertainty of pending charges while on bail conditions or in pre-trial detention, but it also causes unnecessary expense and delay in the criminal justice system as a whole.

Even if charges are stayed against an individual, a participant in the community engagement and consultation held in 2023 in British Columbia for Canada’s Black Justice Strategy (by ISSAMBA African Arts & Culture Community Contributor Society), noted that “the suspicions, allegations and unkind legal processes could mar their mental and emotional wellbeing”, and, especially when they are young, they can “leave very angry” which may put them into a “dangerous spiral of recidivism that could bring them to the courts frequently.” Crown attorneys, as trained lawyers whose job is to act in the public interest, are better placed than police to screen charges and make sure that they are properly laid.

There is some evidence that Black accused spend more time in pre-trial detention than do white accused. Pre-trial detention is known as “hard time” because many programs and services are not available to individuals who have not yet been sentenced, and offenders of all levels of risk are housed together. The Supreme Court of Canada acknowledged this hardship in R. v. Summers, 2014 SCC 26 (CanLII.)

There is a strong relationship between the social determinants of justice and the ability of an individual to succeed on bail, probation, parole, or a conditional or intermittent sentence. Despite these inequities in the bail system, politicians often complain that it is too easy to get bail, and they ask for the law to make it harder to receive. Most recently, this led to the Government of Canada enacting a “bail reform” bill. This thinking is misguided; the problem with bail is that, despite having a constitutional right to reasonable bail, not enough accused persons are able to get it, and jails are overcrowded as a result. Furthermore, the tertiary ground^{Footnote 8} is too broad and susceptible to being invoked due to unconscious or conscious racial bias. Prosecutors and decision-makers should be able to articulate a good faith, rational basis for detaining an individual prior to trial.

Where cases go to trial, African Canadians rarely get to appear before decision-makers who look like them, and more must be done to recruit and appoint Black judges. Participants in the consultations for the Strategy expressed their feelings of mistrust and alienation due to the underrepresentation of Black professionals in the criminal justice system. A community member from the community engagements and consultations held in 2023 in Saskatchewan (by Truly Alive Youth and Family Foundation Inc.) noted that “this makes the setting hostile, unpleasant, and socially unsafe for Black people with cases to address.” Another participant from the same consultation in Saskatchewan, stated that this type of environment “re-enacts the historical colonial/slavery injustices and experiences of Black people that have led to the present-day circumstances of bias, discrimination, and inequalities."

Anti-Black racism on juries has been a longstanding concern in Canada. In R. v. Parks, 1993 CanLII 3383, the Ontario Court of Appeal agreed that it was possible that white jurors in Toronto might hold conscious or unconscious bias against Black people and that the trial safeguards of the jurors’ oath, warnings from the judge and the solemnity of the occasion might not be sufficient to overcome this bias.

Challenge for cause, the ability of lawyers to question jurors as to possible bias, is not a sufficient safeguard especially where potential jurors may hold unconscious biases toward Black people. Yet challenge for cause is now the only tool defence lawyers have to try to compose a jury that will give their client the fairest trial possible. Peremptory challenges (where lawyers can strike a prospective juror without giving a reason) are no longer available in Canada as of September 2019, when Bill C-75^{Footnote 9} came into effect. The Supreme Court of Canada made it clear in R. v. Chouhan,2021 SCC 26 (CanLII) that judges cannot use their powers to ensure that a jury is diverse. The court suggested that other legislative means be used to do so. This Strategy has provided those recommendations.

Especially after judges have received training in anti-Black racism, it is preferable for judges to use their discretion to sentence accused rather than have that discretion limited by Parliament. All sentencing tools should be available for all accused. Judges must still follow s.718 of the Criminal Code, which requires them to consider various principles, including that a sentence must be proportional to the degree of moral culpability, and that it must serve the aims of denunciation and deterrence as well as rehabilitation, and they must consider aggravating and mitigating factors. Case law providing the appropriate ranges for similar cases will also continue to be used. Removing mandatory minimums does not mean that everyone will get probation or a conditional sentence, but it means that exceptional circumstances can always be considered.

Impact of Race and Culture Assessment reports, or IRCAs, are used to give sentencing judges background information on an accused and information that shows how systemic anti-Black racism, adverse childhood experiences and other socio-economic factors have played a role in bringing a Black accused before the court. The federal government must expand and maintain funding for IRCAs in all provinces and territories. There is a pressing need for more trained IRCA writers outside Nova Scotia and Ontario.

A big area of concern for participants in the community consultations for the Strategy was the link between criminal law and immigration law, which often leads to removal of non-citizens. Deportation is devastating: it breaks up families and can send deportees to countries where they may not have lived since they were very young and no longer have connections. It also places an unfair burden on receiving countries, many of which are already struggling.

Very young adults aged 18-24 should not be housed in correctional facilities with more seasoned offenders, and should have the same opportunities as youth aged 12-17 to recover from a criminal conviction. It has been acknowledged elsewhere that some individuals do not mature until their mid-20s, and some provinces allow extension of care under child welfare legislation for that reason. The criminal justice system should extend the same opportunity.

Many participants in the consultation for the Strategy expressed having difficulties finding competent counsel with cultural knowledge. Part of the problem is that legal aid is chronically underfunded in every province, and its lawyers are inadequately paid. Black people also face significant barriers in becoming lawyers and in being able to do legal aid work. Transformative change in the legal system will be undertaken by well-trained, well-resourced lawyers who are responsive to the individuals they serve.

Recommendations

Reparative Justice

Medium term

43. Establish a committee of Black justice professionals, academics and community leaders to study options for reparations to Black people for enslavement, segregation and racially-biased laws.

Pre-charge stage

Medium term

44. Amend s.504 of the Criminal Code to require that all criminal charges referred by police be pre-screened by the Crown Attorney’s office before they are formally laid.

Judicial interim release (bail)

Short term

45. Add a section to s.515 of the Criminal Code that requires a judge or magistrate to consider the individual circumstances and background of every accused who applies for judicial interim release and to take those into account when imposing conditions of release.
46. Amend s.523.1(3) of the Criminal Code to state that an individual referred on an administration of justice offence where no harm to an individual or to property is alleged, shall not be detained in custody unless the prosecutor can demonstrate a material change in circumstance since the accused was last released on a summons, appearance notice, undertaking or release order, and that that change in circumstance demonstrates clearly and cogently that the detention is necessary for the protection and safety of the public.
47. Amend s.515(4) of the Criminal Code to add that judges may direct the accused to comply with these conditions only where the prosecutor can demonstrate that the condition(s) are necessary for the protection and safety of the public.
48. Amend the Criminal Code to remove s.515(10)(c), the tertiary ground of detention.

Drug offences

Short term

49. Amend s.4(1) of the Controlled Drugs and Substances Act to remove all criminal penalties for possession offences of up to a 30-day supply of a controlled substance.
50. Automatically grant record suspensions for all existing convictions for possession offences.
51. Provide greater access to a controlled, safe supply of drugs.
52. Enact a section of the Criminal Code that prohibits the prosecution from calling as expert witnesses individuals who are employed as police officers or have been so employed in the last 5 years.

Victims and witnesses

Medium term

53. Provide mandatory training in anti-Black racism and cultural competence to all justice system professionals that must include specific training on treating victims of crime and witnesses in proceedings with respect and dignity.
54. Provide funding and training to ensure that all judicial centres have access to interpreters who speak a wide variety of languages other than English or French.
55. Fund the creation of an African Canadian Court Worker program that would place trained Black justice professionals in courthouses where a significant Black population attend court as accused, victims or witnesses and their family members. The Court Workers would act as a resource to Black court attendees, referring them to appropriate services, providing emotional support, and helping them navigate the court process.

Judicial selection

Short term

56. Judicial selection committees must be proactive in recruiting and encouraging Black people and those from other underrepresented groups to apply to be judges and to sit on judicial selection committees:
    • Judicial selection committees must include representatives from Black and Indigenous communities in each province and territory.
    • Work with provinces and territories to enact similar provisions for their judicial selection committees.

Jury selection

Short term

57. Restore the provisions for peremptory challenges as they existed prior to Bill C-75. Add a clause allowing either defence or prosecution to bring it to the judge’s attention if they believe individuals are being challenged solely on the basis of their race, and for the judge to overrule challenges determined to be made on that basis.
58. Add race, ethnicity, citizenship and having a criminal record to s.626(2) of the Criminal Code.
    • Make corresponding changes to s.638(1) of the Criminal Code.

Medium term

59. Work with the provinces and territories to ensure sufficient payment to jurors, and that transportation and childcare costs are covered for prospective jurors.

Sentencing

Short term

60. Add Black offenders to s.718.2(e) of the Criminal Code.
61. Remove all mandatory minimum penalties in the Criminal Code.
62. Make conditional sentence orders available for all offences.
63. Work with the provinces and territories to expand the availability and use of restorative justice options, with a special focus on Black offenders.

Impact of Race and Culture Assessments (IRCAs)

Short term

64. Ensure judges are educated and trained in the importance of ordering IRCAs and the proper use of IRCAs in sentencing Black offenders.
65. Provide stable, committed and long-term resourcing to every province and territory to train IRCA writers and provide accused with IRCA reports.
66. Expand funding of IRCAs for use in parole hearings.

Medium term

67. Work with the provinces to resource and create specialized courts for African Canadian accused that take a trauma-informed approach.

Immigration

Short term

If the recommendation is followed to eliminate all mandatory minimum sentences and make conditional sentence orders available for all offences, the following changes will not be needed. However, they are an alternative short-term solution to the problem of individuals being removed from Canada due to criminal convictions despite having strong ties to the community and various humanitarian and compassionate factors.

68. Amend s.36(1) of the Immigration and Refugee Protection Act to:
    • increase from 10 to 14 years the maximum term of imprisonment that makes a permanent resident or foreign national inadmissible;
    • increase from six months to 5 years the imposed term of imprisonment that makes a permanent resident or foreign national inadmissible, both for offences committed inside and outside Canada; and
    • no longer consider all hybrid offences indictable, but proceed on the same election that the Crown did.
69. Amend s.44 of the Immigration and Refugee Protection Act to mandate Canada Border Services agents who complete admissibility reports to consider the impact of anti-Black systemic racism on individual applicants, take into account humanitarian and compassionate factors and length of stay in Canada. These considerations should be clearly communicated in training and instruction manuals.
70. That the Immigration and Refugee Protection Act be amended to allow for the filing of an application for permanent residence on humanitarian and compassionate grounds should a removal order be made. The filing of this application would suspend removal until there is a decision made by the Immigration, Refugees and Citizenship Canada and the judicial review process to the Federal Court is completed, if applicable.
71. That a legislative amendment to the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations be made to delay the enforcement of a removal order until all appeal deadlines and processes have been exhausted.
72. That a legislative amendment to the Immigration and Refugee Protection Act and Immigration and Refugee Protection Regulations be made to allow children 12 years of age and older whose parent or guardian is being removed from Canada to make the decision to follow their parent or guardian or remain in Canada, if reasonable arrangements can be made.
73. Provide a path for family members of individuals under removal orders to remain in Canada through the filing of an application for permanent residence on humanitarian and compassionate grounds, notwithstanding family, financial or medical inadmissibility under sections 38, 39 and 42 of the Immigration and Refugee Protection Act.
74. Amend the Immigration and Refugee Protection Act and Immigration and Refugee Protection Regulations to delay the enforcement of a removal order until a deported person on probation or parole has served their sentence and filed and received a decision on their application for a judicial record suspension.
75. Amend s.40(3) of the Immigration and Refugee Protection Act to suspend removal for misrepresentation until an application to grant permanent resident status on humanitarian and compassionate grounds can be filed, decided and appealed if applicable.
76. Amend s.63(3) and s.64 of the Immigration and Refugee Protection Act to allow all foreign nationals and permanent residents to appeal any removal order.
77. Add a provision to s.25 of the Immigration and Refugee Protection Act so that individuals awaiting a decision on a Humanitarian and Compassionate application shall not be removed from Canada until that decision is made.
78. Allow an application for permanent residence on humanitarian and compassionate grounds to be filed, notwithstanding the one-year delay following receipt of a refusal decision from the Refugee Protection Division, Immigration Appeal Division or Pre-Removal Risk Assessment hearing.
79. Amend s.48 of the Immigration and Refugee Protection Act to maintain permanent resident status for individuals who have removal orders in force against them but cannot be removed from the country.
80. Asylum seekers should not be detained in provincial or federal correctional facilities for more than 48 hours unless a representative of Canada Border Services Agency can demonstrate to a member of the Immigration and Refugee Board that detention of the individual poses a risk to national or public safety and conditions other than detention cannot be crafted to mitigate that risk.

Youth

Short term

81. Extend the Youth Criminal Justice Act to apply to individuals from ages 12-24.

Access to justice

Short term

82. Provide increased funding to the provinces and territories for the provision of legal aid to individuals in need of counsel, and ensure these transfers are specifically earmarked so that they cannot be used for any other purpose.
83. Provide legal aid funding to allow Black and other applicants to challenge violations of their civil and human rights in criminal, prison law, regulatory and civil cases that may not otherwise be covered according to provincial legal aid criteria.
84. Substantially expand the Court Challenges program to include a stream of litigation based on challenges to anti-Black racism.

Medium term

85. Partner with Canadian Banks to launch and maintain a Black Legal Education Debt Relief Program that includes robust offerings of lower-interest rates, longer repayment periods, debt forgiveness and other debt relief programs for Black articling students and early-career lawyers who choose a public interest job within the legal profession that earns them less than $120,000 for 3 consecutive tax years.