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Perceptions of racism in Ontario’s court system rising, says new report

Friday, February 26, 2021 @ 2:13 PM | By John Schofield


Perceptions of racial discrimination in Ontario’s courts have actually increased over the past 25 years, despite programs geared to stamping out systemic racism in the judicial system, says the co-author of a new report from the Canadian Association of Black Lawyers (CABL), Ryerson University and the University of Toronto.

The recently released report, titled Race and Criminal Injustice: An Examination of Public Perceptions of and Experiences with the Ontario Criminal Justice System, is based largely on a survey of 1,450 Greater Toronto Area residents conducted in 2019, but also compares the findings with extensive surveys done in 1994 and 2007.

 Scot Wortley, a U of T professor and acting director of the university’s Centre for Criminology and Sociolegal Studies

Scot Wortley, U of T professor and acting director of the university’s Centre for Criminology and Sociolegal Studies

“While worries about bias in policing seem to have been a constant, perceptions of the bias that exists in the court system have actually increased,” said Scot Wortley, a U of T professor and acting director of the university’s Centre for Criminology and Sociolegal Studies, who co-authored the report with University of Toronto sociology professor Akwasi Owusu-Bempah and criminology PhD student Huibin Lin. The report was commissioned by CABL, published by Ryerson University’s Faculty of Law and funded by Legal Aid Ontario. All three surveys were carried out by Environics Research.

The 1994 survey found that 48 per cent of Black respondents believed that a Black person would get a longer sentence than a white person charged with the same crime. That figure rose to 58 per cent in 2007 and 79 per cent in 2019.

“The anti-racism anti-bias initiatives that have been implemented by the criminal justice system over the last 25 years do not seem to have been effective at increasing confidence and trust in policing or the court system,” Wortley told The Lawyer’s Daily. “It’s basically back to the drawing board.”

The unavailability or inaccessibility of race-based statistics on the courts makes researching judicial systemic racism difficult, he noted. Most research has been done in connection with special investigations or commissions of inquiry.

“We’re still woefully behind our international partners in examining issues of race in policing in Canada,” he said. “But we’re even further behind when it comes to examining the impact that race has on decision making within the court system and the correctional system.”

Wortley said some of the studies that have been conducted on pretrial decision making have shown that Black people are more likely to be detained and held in custody prior to trial, holding other legally relevant variables constant.

“Then, as a result, they are much more likely to plead guilty,” he added. “If you are detained before trial, you might serve many, many months in a detention centre before you get your chance in court. So it’s a huge bargaining chip. You could argue that pretrial detention is a way of coercing pleas.”

Data also indicates that Black people are much more likely to get numerous conditions put on their pretrial release, he said.

Wortley said systemic racism in policing and the courts starts with surveillance and which communities the police decide to watch more closely. In that vein, one of the report’s key findings was that Black people are more likely to report pedestrian and traffic stops by the police in 2019 than they were in 2007 or 1994 — despite legislation passed in 2017 aimed at curbing police street checks, or so-called carding.

Almost half of Black male respondents (49.2 per cent) reported being stopped by the police at least once in the past two years, compared to only 25.9 per cent of white males and 29.8 per cent of Asian males.

“This brings into question the effectiveness of the street-check regulation,” said Wortley, “and is consistent with allegations that all the street-check regulation has done is eliminate the official documentation of these types of encounters, so it gives an illusion that racial profiling doesn’t exist when it still does.”

The report found that between 1994 and 2019, the perception of anti-Black discrimination within policing has remained constant among Black Toronto residents. Throughout that period, between 75 per cent and 82 per cent of Black respondents have expressed the belief that the police treat Black people worse than white people.

Raphael Tachie, president of CABL and senior counsel with TD Bank Group

Raphael Tachie, president of CABL and senior counsel with TD Bank Group

Wortley said the federal government’s recent introduction of Bill C-22, which proposes to repeal mandatory minimum sentences for those convicted of some drug and firearm-related offences could begin to address systemic racism in the judicial and correctional systems.

“We need to collect that data and examine a couple years down the road whether that’s made a difference or not,” he added. “I think that many of the initiatives that may sound good on paper or in a sound bite at a press conference have very little teeth and accountability is still quite low.”

Raphael Tachie, president of CABL and senior counsel with TD Bank Group, said the association was disappointed to see how little the dial has moved on systemic racism in the courts and policing over the past 25 years.

“The fact that fundamentally the findings were the same as 25 years ago and have been repeated was actually challenging,” he told The Lawyer’s Daily.

Greater awareness of the differential impact of the criminal justice system on Black and Indigenous communities might be a factor in explaining the report’s results, he said. But the ineffectiveness of anti-racism programs might also be to blame.

“It could be some of the programming that has been put in place that we expected to be reflective in terms of moving the dial, some of it might have been just window dressing,” said Tachie. “Some of it might not have had the effect that it was expected to have. And so, to me, that was the piece that I found really interesting.”

Donna Young, dean of the Ryerson University Faculty of Law

Donna Young, dean of the Ryerson University Faculty of Law

Donna Young, dean of the Ryerson University Faculty of Law, who wrote the forward to the report, noted that the 2019 survey done for the report predated the May 2020 death of George Floyd while in police custody and the ensuing protests against anti-Black racism worldwide.

“If I’m at all hopeful, I’m hopeful because there’s no denying that there’s a problem,” she told The Lawyer’s Daily. “That gives me some hope that something will change. And I do think that things have changed. The Black North Initiative grew out of this. There is lots of soul-searching on an institutional level, higher education is re-evaluating how it offers curricula on race issues, and this is worldwide.”

Still, the results of the report should be concerning for all lawyers, regardless of their area of practice, said Young.

“To the extent that the report brings into question issues of fairness in the justice system,” she said, “then I think all lawyers have an interest in that and have a role to play in trying to ameliorate some of the effects that were shown in the report.”

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