Black people in criminal courts in Canada: An exploration using the relative rate index
Results
Proportion of Black accused in criminal court
Black people overrepresented in criminal court
In 2015-16, there were 199,895 accused (adults and youth) with a completed court case. Black people accounted for 6% of all accused; a proportion that is double their representation in the Canadian population (see Chart 1).Footnote 22 In comparison, White people made up 55% of all accused in 2015-16 and 71% of the Canadian population in 2016. The proportions of Black people in the accused and Canadian populations have remained stable over the previous decade (i.e., across Census years─2006, 2011, 2016). In contrast, the proportion of White people in the accused population decreased from 63% in 2006-07 to 55% in 2015-16 while their representation in the Canadian population decreased from 78% in 2006 to 71% in 2016.
There is currently a dearth of data on Black people in other areas of the CJS. However, the available data suggests that Black people are overrepresented in correctional services, consistent with the findings of this study. In 2015-16, Black people accounted for 8% of the total offender population in federal correctional institutions (Public Safety Canada, 2016).
While data on Black people in provincial and territorial custody remain limited and underreported, previous studies have shown that Black accused are more likely to be detained prior to trial than accused from other racial backgrounds (35% vs 23%, respectively) (findings specific to Toronto; Kellough & Wortley, 2002). Recent data further show that Black people are overrepresented to varying degrees among admissions to provincial corrections in four reporting jurisdictions, namely Nova Scotia, Ontario, Alberta and British Columbia. In 2020-2021, Black adults accounted for 10% of provincial correctional admissions in Nova Scotia (vs 3% of the general adult population), 13% in Ontario (vs 5% of the general adult population), 5% in Alberta (vs 3% of the general adult population), and 2% British Columbia (vs 1% of the general adult population) (Statistics Canada, n.d.-c; Statistics Canada, n.d.-d). Additionally, Black youth, who represented almost 4% of the combined youth population in Nova Scotia, Alberta and British Columbia, accounted for approximately 10% of youth admissions to corrections in these reporting jurisdictions (Statistics Canada, n.d.-d; Statistics Canada, n.d.-e).
Relative rate index
This section presents findings using the RRI method. The purpose of these analyses is to understand whether the criminal court process produces different and disproportionate outcomes for Black accused at different junctures (stages/decision points) of the process. The results presented are based on different “at risk” groups, depending on the court stages/decision points.Footnote 23 For this reason, the disproportionality found at each stage is considered independent of the disproportionality occurring at previous stages.
Court decisions
This sub-section presents findings on the different court decisions encountered by individuals accused in criminal courts. Specifically, these analyses looked at all accused (group at risk) to identify whether Black accused were more or less likely than White accused to:
- have their charges withdrawn, their case dismissed, or be discharged;
- have their case stayed;
- be acquitted; and
- be found guilty.Footnote 24
Black accused more likely to encounter a withdrawal, dismissal and discharge, equally likely to be acquitted, and less likely to be found guilty and encounter a stay of proceedings
Withdrawal, dismissal, and discharge
In criminal court, charges may be withdrawn, a case dismissed, or an accused discharged. These dispositions all put an end to criminal court proceedings. A Crown prosecutor has the discretion to withdraw charges, which means that the charges will no longer be before the court and the prosecution will not continue. This may arise in cases where there is no reasonable prospect of conviction (Roach, n.d.), or when it is not in the public interest to continue the prosecution.Footnote 25
Additionally, the judge has a discretionary power to dismiss a case by not allowing it to proceed after the charges are filed. This may occur in various circumstances, including lack of prosecution (i.e., failure to take appropriate actions to properly prosecute the accused). An accused may also be discharged upon a preliminary inquiry where the court decides not to commit the accused for trial on the basis that there is insufficient evidence to prosecute (Criminal Code, s 548).Footnote 26 For the purpose of this analysis, these three outcomes were combined.
Black accused were on average 65% more likely than White accused to encounter a withdrawal, dismissal or discharge from 2005/06 to 2015/16 (see Chart 2). A greater chance of encountering this outcome was observed regardless of the sex, age group and offence type of the accused. RRI data broken down by accused characteristics and jurisdictions are provided in Annex 2, Table 1 and Table 2.
Stay of proceedings
A stay of proceedings is an order by the judge or the Crown prosecutor that prevents any further action on a prosecution, either temporarily or permanently (R v Jewitt, 1985; Criminal Code, s 579). A judge may enter a stay as a form of remedy under section 24(1) of the Canadian Charter of Rights and Freedoms when the rights of an accused have been infringed or denied (R v O’Connor, 1995), for example, due to unconstitutional delays in proceedings (Canadian Charter of Rights and Freedoms, s 11(b)). A Crown prosecutor may also enter a stay, for example, for the purpose of conducting further investigation that was previously unforeseen (Roach, n.d.), or protecting the identity of an informant (R v Scott, 1990). In this study, data on the decision to stay the proceedings may also include instances where charges are stayed or withdrawn due to alternative measures, extrajudicial measures or other diversion programs. It is currently not possible to distinguish between these various decisions due to data limitations.
Black accused were on average 14% less likely than White accused to encounter a stay of proceedings from 2005/06 to 2015/16 (see Chart 2). These results varied when taking into account accused characteristics. A lesser chance of encountering this outcome was observed for Black people accused of non-violent offences, Black male accused, and more notably, Black people accused of violent offences (-28%) and Black adult accused (-27%), relative to their White counterparts. Black female accused were also less likely to encounter a stay of proceedings, but to a much lesser extent (-5%). In the case of youth accused, Black and White accused were equally likely to encounter this outcome (Black = 0%). RRI data broken down by accused characteristics and jurisdictions are provided in Annex 2, Table 1 and Table 2.
Acquittal
An accused may be acquitted when a judge or jury returns a verdict of not guilty. From 2005-06 to 2015-16, Black accused and White accused were on average equally likely to be acquitted (Black = +2%). However, this average masks important variations in the yearly RRIs observed; these were much lower from 2007-08 to 2009-10, when Black accused were less likely to be acquitted, and much higher from 2011-12 to 2013-14, when Black accused were more likely to be acquitted (see Chart 2). An equal chance of encountering this outcome was observed for Black people accused of violent and non-violent offences,Footnote 27Footnote 28 as well as for Black adult accused, relative to their White counterparts.Footnote 29 However, Black male accused were more likely (+9%) than White male accused to be acquitted.Footnote 30 RRI data broken down by accused characteristics and jurisdictions are provided in Annex 2, Table 1 and Table 2.
Guilty finding
Upon undergoing a trial, an accused may be found guilty and convicted of an offence. Used here, the term “guilty finding” includes both findings of guiltFootnote 31 by the court and guilty pleas, since available data do not allow for the examination of guilty pleas on their own. Guilty findings are the most frequent type of court outcome. In 2015-16, guilty findings represented 64% and 55% of all completed cases in adult and youth criminal court, respectively; these proportions have remained fairly stable over the past decade (Statistics Canada, n.d.-f; Statistics Canada, n.d.-g).
Black accused were on average 24% less likely than White accused to be found guilty from 2005-06 to 2015-16 (see Chart 2). A lesser chance of encountering this outcome was observed regardless of the sex, age group and offence type of the accused. Black female accused were the least likely to encounter this outcome (-37%), relative to their White counterparts. RRI data broken down by accused characteristics and jurisdictions are provided in Annex 2, Table 1 and Table 2.
Overall, Black accused were more likely to encounter a withdrawal, dismissal or discharge, less likely to be found guilty and encounter a stay, and equally likely to be acquitted (except for Black men who were more likely to be acquitted), relative to their White counterparts.
Data on the likelihood of Black accused encountering a withdrawal, dismissal or discharge may show cause for concern at the policing stage. Withdrawals, dismissals and discharges can occur, for example, due to lack of prosecution and lack of evidence to convict an accused. This trend is consistent with previous research that suggests that Black people may be more vulnerable to unnecessary charges with a low probability of conviction that are eventually withdrawn or dismissed (Wortley & Jung, 2020). These findings may be an indication of racially motivated differential and biased police treatment whereby Black people are more likely to be charged with offences, even in cases where charges should not proceed, thus introducing Black people to the court system unnecessarily (Owusu-Bempah & Jeffers, 2022).
Sentencing outcomes
This sub-section presents findings on the different sentencing outcomes of criminal court cases with a guilty disposition.
Specifically, these analyses looked at all accused who were found guilty (group at risk) to identify whether Black accused were more or less likely than White accused to obtain:
- fines;
- probation sentences;
- conditional sentences; and,
- custody sentences.Footnote 32
Among those found guilty, Black accused less likely to receive a fine and a conditional sentence, and more likely to be sentenced to custody and to receive probation
Upon being found guilty of an offence, an individual receives a sentence based on a number of factors and principles (Criminal Code, s 718, s 718.1 and s 718.2). Possible sentences, in order of seriousness from least to most, include fines, probation, conditional sentence and custody.Footnote 33
Fine
A court may impose that an accused pays a fine as their sentence. Unless it is a mandatory fine, courts must be satisfied that the offender has the ability to pay or is able to discharge it under a fine option program. Among all those found guilty, Black accused were on average 46% less likely than White accused to receive a fine from 2005-06 to 2015-16 (see Chart 3). A lesser chance of encountering this outcome was also observed among Black male and female accused, adult accused, and those accused of non-violent offences.Footnote 34 RRI data broken down by accused characteristics and jurisdictions are provided in Annex 2, Table 3 and Table 5.
Probation
A probation order (up to three years) may be imposed as a standalone sentence or in addition to a fine or to a term of imprisonment of no more than 2 years (Criminal Code, s 731). Probation allows an offender to serve their sentence in the community under conditions prescribed in the order. In 2015-16, probation was one of the most common sentence in both adult criminal and youth courts, representing 43% and 56% of all sentences ordered in guilty cases, respectively (Statistics Canada, n.d.-h; Statistics Canada, n.d.-i).
Among all those found guilty, Black accused were on average 13% more likely than White accused to receive a probation sentence from 2005-06 to 2015-16 (see Chart 3). A greater likelihood of encountering this outcome was observed for Black male and female accused, Black adult accused and Black people accused of non-violent offences, relative to their White counterparts. However, Black youth accused and Black people accused of violent offences were less likely to encounter this outcome (-17% and -8%, respectively), compared to their White counterparts. RRI data broken down by the accused characteristics and jurisdictions are provided in Annex 2, Table 3 and Table 5.
Conditional sentence
A conditional sentence is a term of imprisonment of less than two years that may be served in the community under strict conditions (Criminal Code, s 742.1).Footnote 35 Courts must be satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing.Footnote 36 Conditional sentences were introduced by Parliament in 1996 as part of sentencing reforms (former Bill C-41) in an attempt to decrease the use of custody sentences in Canada.Footnote 37
Among all those found guilty, Black accused were on average 9% less likely than White accused to receive a conditional sentence from 2005-06 to 2015-16. Important variations were observed in the yearly RRIs; these were higher in earlier years, even indicating a greater likelihood among Black accused of obtaining this outcome in 2005-06, 2006-07 and 2008-09, and showed a downward trend in more recent years (see Chart 3). Results varied when taking into account accused characteristics. A lower likelihood of encountering this outcome was predominantly found for Black male accused (-9%) and more notably, Black people accused of violent offences (-29%). Black adult accused, Black female accused, and Black people accused of non-violent offences were equally likely as their white counterparts to encounter this sentencing outcome.Footnote 38 RRI data broken down by the accused characteristics and jurisdictions are provided in Annex 2, Table 3 and Table 5.
Custodial sentence
A custodial sentence is considered the most restrictive type of sentence as it involves a term of imprisonment. The Criminal Code directs courts not to deprive offenders of their liberty if less restrictive sanctions are appropriate in the circumstances.
Among all those found guilty, Black accused were on average 24% more likely than White accused to be sentenced to custody from 2005-06 to 2015-16 (see Chart 3). These results showed varying trends when considering specific accused characteristics. A greater likelihood of encountering this sentencing outcome was observed for Black adult accused, Black male accused and both Black people accused of violent and non-violent offences. The likelihood of being sentenced to custody was much more pronounced in the case of Black youth accused, who were more than twice as likely (+103%) as their White counterparts to be sentenced to custody. Black female accused showed a different trend; they were 21% less likely than their White counterparts to encounter this sentencing outcome.Footnote 39 RRI data broken down by accused characteristics and jurisdictions are reported in Annex 2, Table 3 and Table 5.
Since these results indicate that Black accused were more likely than White accused to receive a probation sentence as well as more likely to obtain a custodial sentence, further analyses were completed to examine whether Black accused were more or less likely to receive a probation sentence over a custody sentence. Among accused who received either a probation or a custody sentence, Black accused were on average equally likely to White accused to receive probation (Black accused = -3%) from 2005/06 to 2015/16. An equal chance of encountering this outcome was found for Black adult accused and Black people accused of non-violent offences. However, results differed for other groups; a lesser chance of obtaining probation over custody was observed for Black male accused (-5%), Black people accused of violent offences (-7%), and even lesser in the case of Black youth accused (-14%), relative to their White counterparts. Additionally, a greater chance of obtaining probation over custody was observed for Black female accused (+8%).Footnote 40 RRI data broken down by accused characteristics and jurisdiction are provided in Annex 2, Table 4 and Table 6.
While the findings in this study suggest that Black accused are less likely to be found guilty (including guilty pleas), among those that are found guilty, Black accused are more likely to receive a custodial sentence. Additionally, they are more likely to receive probation and less likely to receive a fine or a conditional sentence, relative to their White counterparts, with a few exceptions when considering other accused characteristics.
While findings on custodial sentences are not new in that accounts of the overrepresentation of Black people in custody have been previously documented (Office of the Correctional Investigator, n.d.) , they are a cause for concern as previous research has shown that the further an individual proceeds through the justice system (e.g., police, courts, corrections) the more likely they are to reoffend and return to the system (Brennan & Matarazzo, 2016). This is particularly concerning for Black youth as they are twice as likely to be sentenced to custody.
While the Youth Criminal Justice Act has been successful at reducing youth incarceration by taking an approach that is more oriented towards rehabilitation (Statistics Canada, n.d.-j), the level of incarceration for Black youth accused has not decreased to the same extent. This may indicate the need for the broader and more systematic use of Impact of Race and Culture Assessments (IRCAs). IRCAs are pre-sentencing reports that provide information to sentencing judges to better understand how an offender’s lived experiences of systemic racism and subsequent poverty, marginalization, and social exclusion, can inform the circumstances of the offender and the offence committed. This in turn helps judges to factor in the impact of systemic racism during sentencing to explore alternatives to incarceration and/or culturally appropriate accountability measures within a sentence of incarceration.
Length of custodial sentences
This sub-section presents findings on the length of custodial sentences. Specifically, these analyses looked at all accused who were sentenced to custody (group at risk) to identify whether Black accused were more or less likely than White accused to obtain varying custodial terms.
The ICCS categorizes custodial terms into six groups:
- “1 month or less”;
- “greater than 1 month to 3 months”;
- “greater than 3 months to 6 months”;
- “greater than 6 months to 12 months”;
- “greater than 1 year to less than 2 years”; and,
- “2 years or more.”Footnote 41Footnote 42 However, in this study, data were not available for custodial lengths “greater than 1 year to less than 2 years.” For the purpose of this report, custodial terms have been grouped into three categories: short-term custodial sentence (“1 month or less” and “greater than 1 month to 3 months”), medium-term custodial sentence (“greater than 3 months to 6 months” and “greater than 6 months to 12 months”), and long-term custodial sentence (“2 years or more”).
The length of custodial sentences determines which correctional service will have jurisdiction over an individual. Provincial or territorial correctional services have jurisdiction over individuals sentenced to a custodial term of less than two years, while federal correctional services have jurisdiction over individuals sentenced to a custodial term of two years or more.
Among those sentenced to custody, Black accused more likely to receive a long-term custodial sentence of two years or more
Short-term custodial sentence (“1 month or less” and “greater than 1 month to 3 months”)
Among those sentenced to custody, Black and White accused were equally likely to receive a custodial term of “1 month or less” (Black accused = -3%) from 2005-06 to 2015-16 (see Chart 4a). An equal chance of encountering this outcome was found for Black male and female accused,Footnote 43 Black adult accused and Black people accused of non-violent offences. However, a different trend was observed when taking into account other accused characteristics. Black youth (-12%) were less likely than their White counterparts to encounter this outcome. In the case of violent offences, Black accused were also less likely to encounter this outcome, but to a much lesser extent (-5%). RRI data broken down by accused characteristics and jurisdictions are reported in Annex 2, Table 7 and Table 9.
Furthermore, Black accused were on average 9% less likely than White accused to receive a custodial term “greater than 1 month to 3 months” from 2005-06 to 2015-16. There were marked variations across the 11-year reference period; Black accused were less likely to encounter this outcome in earlier years and from 2005-06 to 2008-2009, more likely in 2009-10 and almost equally likely in more recent years (see Chart 4a). A lesser chance of encountering this outcome was also found when taking into account specific accused characteristics. Black adult accused (-10%),Footnote 44 Black male accused (-10%)Footnote 45 and Black people accused of non-violent offences (-16%) were all less likely than their White counterparts to encounter this outcome. In the case of violent offences, Black and White accused were equally likely to receive this custodial sentence (Black = +1%). RRI data broken down by accused characteristics and jurisdictions are reported in Annex 2, Table 7 and Table 9.
Medium-term custodial sentence (“greater than 3 months to 6 months” and “greater than 6 months to 12 months”)
Overall, a different trend was observed for medium-term custodial sentences as Black accused were more likely to encounter this outcome. Among all those sentenced to custody, Black accused were on average 12% more likely than White accused to receive a custodial term “greater than 3 months to 6 months” from 2005-06 to 2015-16. The yearly RRIs also showed important variations; these were generally higher between 2005-06 to 2008-09, and lower between 2009-10 to 2011-12 and in 2013-14, when Black accused were in fact less likely to encounter this custodial term, which may affect the average RRI (see Chart 4b). A greater chance of encountering this outcome was observed for Black adult accused, Black male accused and Black people accused of non-violent offences.Footnote 46 RRI data broken down by accused characteristics and jurisdictions are provided in Annex 2, Table 7 and Table 9.
To a greater extent, Black accused were on average 38% more likely to receive a custodial term “greater than 6 months to 12 months” from 2005-06 to 2015-16. The yearly RRIs showed notable fluctuations; they were much higher in 2008-09, 2010-11 and 2012-13, and much lower in 2005-06 and 2011-12, which can affect the average RRI (see Chart 4b). A greater chance of encountering this outcome was observed for Black adult accused and Black male accused, relative to their White counterparts.Footnote 47 RRI data broken down by accused characteristics and jurisdictions are provided in Annex 2, Table 7 and Table 9.
Long-term custodial sentence (“2 years or more”)
A similar trend was observed for Black accused receiving a long-term custodial sentence of two years or more. Among all those sentenced to custody, Black accused were on average 36% more likely than White accused to receive a custodial term of “two years or more” from 2006-07 to 2015-16.Footnote 48 The yearly RRIs showed important variations; they were lower in 2008-09 and between 2011-12 and 2013-14, indicating that Black accused were equally as or less likely than White accused to receive a long-term custodial sentence, and much higher in 2009-10, 2014-15 and 2015-16, which can affect the average RRI (see Chart 4c). A greater chance of encountering this outcome was observed for Black adult accused and Black male accused, relative to their White counterparts.Footnote 49 RRIs broken down by accused characteristics are provided in Annex 2, Table 7 and Table 9.
In sum, Black accused were equally or less likely to be the subject of short custodial terms and more likely to encounter a medium or a long custodial term, with a few exceptions when taking into account other sociodemographic variables and the offence type.
It is important to note that the RRI method does not take into account the multiple factors that may affect the length of custodial sentences, such as aggravating and mitigating factors, the criminal record of an accused and the severity of the offence. In fact, the findings above could be further explained by differences between Black and White accused in the severity of offences or in the offences being subject to mandatory minimum penalties. Previous research has shown that, over a ten year period (from 2010-11 to 2019-20), Black offenders were more likely than White offenders to be admitted to federal custody for an offence punishable by a mandatory minimum penalty (53% of Black offenders vs 46% of White offenders) (Department of Justice, 2022). That said, previous literature has also shown that Black accused tend to be sentenced more harshly than White counterparts (Owusu-Bempah & Jeffers, 2022; Commission on Systemic Racism in the Ontario Criminal Justice System, 1995).
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