Black people in criminal courts in Canada: An exploration using the relative rate index

The focus of this report is not to examine the issue of overrepresentation of Black people in the CJS compared to their representation in the Canadian population, but rather to better understand the differential and disproportionate outcomes of Black accused compared to White accused in criminal courts. However, it remains important for readers to understand the broader context in which these disproportionate outcomes are occurring, including the factors that have led to overrepresentation.

Available data indicate that Black people are overrepresented in Canada’s criminal justice system, both as victims/survivors and convicted persons. In 2020/2021, Black people accounted for 9% of the total federal correction population, while representing 4% of the Canadian population (Correctional Service of Canada, n.d.; Statistics Canada, 2022). Additionally, Black people are overrepresented as both victims and accused in homicide incidents (Statistics Canada, n.d.-a; Statistics Canada, n.d.-b). A higher proportion of Black people have also reported experiencing physical or sexual abuse by an adult before the age of 15 (Statistics Canada, 2018).

The historical, social, political and economic contexts of Black people’s lives in Canada have been shaped by systemic anti-Black racism and discrimination that remain present to this day. The following sections discuss factors influencing the past and present experiences of Black people in Canada: enslavement, segregation, discriminatory immigration policies, socio-economic marginalization, and experiences in the CJS.

Enslavement

Black people have played an integral role in Canada’s prosperity; however, their slavery and exploitation was a part of Canadian society for over 200 years, dating as far back as the 1600s, long before Canada became a nation (Saney, 1998; McRae, 2022; Owusu-Bempah & Jeffers, 2022). The abolishment of enslavement in 1834 (McRae, 2022) did not end the oppression of Black people in Canada (Owusu-Bempah & Jeffers, 2022). The effects of slavery resulted in an inferior status for Black people, which had a significant impact on their participation in Canadian society (Aiken, 2007; Bolaria & Li, 1988). Many of those freed from enslavement worked as indentured servants, performing unpaid labour for several years after their enslavement before finally going free (McRae, 2022). Black people were seen as a source of cheap labour by colonial governments, and were often paid far less than their White counterparts (McRae, 2022; Saney, 1998). This income disparity is still present. In 2015, across Canada, the median income of Black men is about $41,100 compared to $55,800 for non-Black men, while Black women were earning a median income of about $35,600 compared to about $39,600 for non-Black women (Do, 2020; Owusu-Bempah & Jeffers, 2022).

Racial segregation

Racial segregation is the process by which people are separated, excluded or denied equal access to opportunities and services based on their perceived racial characteristics (Henry N. , 2021). In Canada, racial segregation of Black people has historically been enforced through laws and social norms that have impacted all spheres of society (Henry N. , 2021; Saney, 1998). By the mid-1800s, segregated schools were enacted in Ontario and Nova Scotia to keep Black students separate from White students; the last segregated schools closed in 1965 in Ontario and in 1983 in Nova Scotia (Henry N. , 2021). There are many instances of land titles with restrictive covenant clauses that prevented Black people from buying or renting properties (Ibid.). In employment, Black people were often assigned to lower service positions, such as waiters, janitors, domestic servants and sleeping car porters, regardless of their education level (Ibid.). When workers started organizing trade unions in the end of 1800s, Black people were systematically denied membership from these unions (Ibid.). When Black men joined the army, they were forced at times to serve in a separate unit (Ibid.). Racial segregation was also present in various public recreational facilities and commercial establishments across Canada (e.g., in theatres; barber shops, restaurants, hotels, cemeteries, public transportation; Ibid.).

Discriminatory immigration and deportation policies

Discriminatory immigration policies have greatly impacted Black people’s entry into Canada over time. Historically, Black people were excluded from subsidized settlement opportunities in Canada, which greatly restricted their admission to the country in the 1800s (Aiken, 2007).^Footnote3 Past immigration policy in Canada specifically prohibited Black American immigrants (1911), while ongoing restrictions to Black people’s immigration have resulted in further segregation and discrimination against Black people in Canada (Henry N. , 2021; Owusu-Bempah & Jeffers, 2022). To this day, Black immigrants and refugees continue to face anti-immigrant and anti-refugee sentiments, as well as xenophobia (Owusu-Bempah & Jeffers, 2022).

Black people admitted to Canada as non-citizens face significant barriers to permanent residency and citizenship associated with domestic workers and other employment based programs. For example, the regime under the Immigration and Refugee Protection Act (IRPA) and Regulations implemented in 2002 does not favour Black workers and leads to them being considered as non-skilled workers (Aiken, 2007; IRPA, 2001). Further, discrimination is also embedded in deportation policies, which reinforce processes that prevent Black people from remaining in the country on the grounds of being a “danger to the public.”^Footnote4 This is particularly concerning for Black people who experience over-policing and racial profiling in their communities, which enhance their likelihood of coming in contact with the CJS (Owusu-Bempah & Jeffers, 2022; Davis-Ramlochan, 2013; Gordon, 2006; Henry & Tator, 2006).

Socio-economic marginalization

Research shows a strong relationship between the overrepresentation of Black people in the CJS and the discrimination and marginalization they face in other socio-economic areas such as child welfare, education and employment. Black children are overrepresented in child welfare cases (Colley, 2019; Owusu-Bempah & Jeffers, 2022; Ontario Association of Children's Aid Societies, 2016). Because much of the literature on parenting is grounded in Eurocentric parenting practices, Canadian professionals may misrecognize certain parenting styles as requiring intervention (Okpokiri, 2021). This can result in children being removed unnecessarily from Black families instead of parents being provided with the appropriate supports needed (Owusu-Bempah & Jeffers, 2022). Contact with child welfare systems has been shown to increase the likelihood of criminal justice contact later in life (Owusu-Bempah & Jeffers, 2022; Jonson-Reid & Barth, 2000; Owusu-Bempah K., 2010).

The relationship between the education system and the CJS is well established, with academic underperformance, absence from school, and failure to graduate increasing the likelihood of involvement in the CJS (Owusu-Bempah & Jeffers, 2022; Groot & Van Den Brink, 2010; Lochner & Moretti, 2004; Maynard, 2017). This is a concern for Black students, as research suggests that education systems are not properly equipped to address their educational, emotional and developmental needs, thus leading to higher rates of academic issues (Owusu-Bempah & Jeffers, 2022; DasGupta & al., 2020).

Black people also face discrimination and exclusion in the labour market (Owusu-Bempah & Jeffers, 2022; Henry & Ginzberg, 1985; Douthwright, 2017). The unemployment rate among Black people in Canada is approximately twice that of the rest of the population (Do, 2020). Further, Black people who are employed face systemic discrimination when it comes to their earnings (Do, 2020; Owusu-Bempah & Jeffers, 2022). This results in Black people in Canada facing greater poverty and being overrepresented in disadvantaged neighbourhoods that lack appropriate resources and have higher rates of criminal activity and victimization, which in turn lead to further contact with the police and the CJS (Owusu-Bempah & Jeffers, 2022; Hulchanski, 2010; Meng, 2017).

Finally, the relationship between the socio-economic marginalization of Black people and their experiences in the CJS is not unidirectional. For example, the over-criminalization of Black men, among other factors, has led to high proportions of single Black parents, which reproduces socio-economic inequities among Black families and communities (Owusu-Bempah & Jeffers, 2022; Houle, 2020).

Criminal justice system experiences among Black people in Canada

Black people have historically faced differential and negative treatment in the CJS. Studies conducted in Toronto have found that Black people report higher rates of police stop and search activity than those from other backgrounds (Wortley & Owusu-Bempah, 2022) and are overrepresented among those involved in use-of-force incidents with the police and in investigations conducted by the Special Investigation Unit (SIU) (Wortley, Laniyonu, & Laming, 2020).

Black people have also faced discrimination within the courts. Available research suggests that the courts use a much tougher approach when dealing with Black youth (Owusu-Bempah & Jeffers, 2022). Additionally, in Toronto, studies show that the conviction rate for Black people is 3.2 times greater than that of White people (Wortley & Jung, 2020). However, Black people are also overrepresented in withdrawn charges, dismissals and acquittals, which may be indicative of racial bias in policing that leads to Black people being charged with offences without merit (Ibid.).