Thank you, Madam Chair and committee members for the invitation to present to you on behalf of the Canadian Association of Black Lawyers, CABL for short.
CABL was formed in March 1996 as a national network of law professionals with an overall mandate to promote the advancement of black lawyers within the profession by providing support systems, promoting academic and professional excellence, and advancing issues of equity and diversity among the bar and judiciary.
Our members—black, white, brown, Christian, Muslim, Jewish, agnostic, and so on—are all bound by a profound concern about issues affecting the black community, including the issues before this committee.
The motion identifies two broad, pressing issues that are top of mind to our members, and in our view, they should be top of mind to the federal and provincial governments, and to anyone who takes the rights of all Canadians seriously. The first issue is racism. The second is religious discrimination.
Condemnation of acts of hate, including the murders at the Islamic cultural centre of Quebec City on January 29, 2017, should be swift and unequivocal. Racism, religious discrimination, or both justify hate speech, assault, and murder in the minds of people like Alexandre Bissonnette, James Fields, and Dylann Roof.
These overt expressions of hate and fear grab headlines. They make fair-minded Canadians shift in their seats, because they are dramatic, visceral reminders of the persistence of racism and racial discrimination in Canada. They are difficult to deny or minimize, though some try. However, for most Canadians, whom I believe to be fair-minded and generally well-intentioned, it is easy to draw a line between themselves and people like Mr. Bissonnette, Mr. Roof, and Mr. Fields. Racism becomes something clearly visible and easily identifiable. It is defined as an act or acts committed by particular individuals chanting horrid things and carrying backyard accessories, while marching on university campuses, driving into human beings, or shooting human beings in prayer.
With the time allotted to me, I would like to focus on a different form of racism, one that we call “institutional” or “systemic”. It is the form of racism that can be the difference between receiving a warning from an officer and ending up in the back of a cruiser. It's the difference between an opportunity to learn from a mistake on the job and having a mistake cost you your job. It's the difference between receiving the benefit of the doubt and consistently being the subject of doubt.
Systemic racism has been defined as the social production of racial inequality in decisions about people and in the treatment they receive. Racial inequality is neither natural nor inherent in humanity. On the contrary, it is the result of a society's arrangement of economic, cultural, and political life. It is produced by the combination of social constructions of races as real, different, and unequal, known as racialization; the norms, processes, and service delivery of a social system, known as structure; and the actions and decisions of people who work for social systems, known as personnel. If you are wondering, I didn't come up with this definition. It's from page 39 of the "Report of the Commission on Systemic Racism in the Ontario Criminal Justice System.”
In October 1992, the Ontario government appointed the commission to inquire and make recommendations about the extent to which criminal justice practices, procedures, and policies in Ontario reflect systemic racism. Based on statistical evidence, the commission came to several conclusions, including that black people are vastly overrepresented in prisons. It identified two primary explanations for this overrepresentation, which were social and economic inequalities, and differential enforcement of criminal law. Differential enforcement revealed itself at several stages of the criminal process, including in the decision to imprison an accused before trial, or what we call remand.
On this issue, the commission found that black accused are more likely than white accused to be imprisoned before trial. Little of the difference of the use of imprisonment for black and white accused is explained by factors said to be relevant to imprisonment decisions. Imprisonment decisions are significantly influenced by the race of the accused, or, in the frank words of the commission:
However closely we scrutinize the data, the findings disclose distinct and legally unjustifiable differences in detention decisions for black and white accused, across the sample as a whole and for some specific offences. The conclusion is inescapable: some black men imprisoned before trial would not have been jailed if they had been white, and some white men freed before their trials would have been detained had they been black.
In my view, the gravamen of the commission's report is that whenever broad discretion exists, racialization can influence the decision of typically fair, well-intentioned people and produce racial inequalities and outcomes.
What is particularly interesting is the contrast between the views of some of the stakeholders in the criminal justice system who were surveyed as part of the study and the commission's evidence-based conclusions. I would like to briefly identify a couple of them because it's important to put this into context. Some expressed that people who complain about systemic racism “do not understand the justice system”, that the idea of “there being widespread racism in the administration of justice is patently false. These ideas result from an ill-informed, politically correct minority who, I believe, have no experience in the criminal justice system.” “Whining about supposed discrimination is a waste of time. The suggestion of discrimination is unfounded.” Some say they are make “excuses”. “The accusation of 'racism' is often used as the last refuge of the scoundrel.” Those are crown attorneys.
I'm not aware of any reliable evidence that the conclusions reached in the commission's report have changed. In fact, in 2007, Dr. Scot Wortley, a criminologist at the University of Toronto, replicated part of the commission's work, a survey of Torontonians about police bias. Dr. Wortley found that the perception of bias in the police and courts appears to have increased between 1994 and 2007 for all racial groups, including whites.
I will now turn to carding. We have also seen the effects of systemic racism in what are described as street checks, known popularly as carding. This is the stopping, questioning, and documenting of people on the street who are not suspected of having committed a crime. Black people are far more likely to be carded than white people in “areas where we do not belong”, in ratios ranging from 3:1 to 17:1. This was the finding of the The Toronto Star, which analyzed 1.7 million contact cards filled out by Toronto police officers between 2003 and 2008. The legitimacy of carding cannot reasonably be evaluated outside of its concrete application. Although we appreciate recent efforts by the Ontario government, in CABL's view, carding is a practice that should be eliminated.
In summary, systemic racism is a real problem. It has been an issue for some time. Important work has already been done, but what, if any, progress has been made is at this point unclear.
We would humbly recommend that the committee survey the work of others on these issues. Don't reinvent the wheel. Important, valuable work has already been done. I point you to chapter 12 of this report. There are four key needs that are identified: one, anti-racism training of personnel; two, employment of racialized persons; three, increased participation of racialized persons in developing policies; and four, monitoring of practices for evidence of racial inequality.
Madam Chair, on behalf of CABL, thank you for this opportunity. I look forward to your questions.