Black History Month: Why It Should Matter to Foundations of Canadian Law students

Every February, people across Canada, as in the United States, participate in Black History Month events and festivities that honour the legacy of Black Canadians and their communities. Few people in Canada are aware of the fact that African people were once enslaved in the territory that is now known as Canada, or of how those who fought enslavement helped to lay the foundation of Canada’s diverse and inclusive society.

Without a doubt, the celebration and recognition of the historic contributions of the Black People in Canada is a giant step towards integrating Black Canadians into the society, and combating the historic injustice against them. However, to make any meaningful impact, we need to do more to combat the systemic and institutional racism facing the Black people in Canada.

We know from our studies of legal realism and critical legal studies that law in the books is different from law in practice. While section 15 of the Canadian Charter of Rights and Freedoms and the Human Rights Codes across provinces guarantee equality rights and freedom from discrimination, let us face it, Black Canadians have not equally enjoyed these rights in practice.

Over the last two years, the revision to the Foundations syllabus has shifted its focus from institutional discriminations against other racialized groups and visible minorities such as Arabs and Muslims to anti-Black racism. This is a welcome development. As a practical matter, it is important for people aspiring to practice law in Canada to be aware of the daily societal issues confronting the Black communities in Canada so as to better represent them.

The article “Arrested injustice” by Robyn Maynard, PhD student and Vanier Scholar, University of Toronto is a welcome intervention in the documentation of the live issues confronting Black bodies in Canada. Black is more often than not synonymous with crime. The article highlighted how law enforcement officials, jails and prisons, as well as the courts and parole boards, play an increasingly significant role in the “managing” of Black populations in Canada. Black people in Canada are subject to invasive police surveillance that makes it difficult to exist in public space. Data has shown that Black folks are more likely to be stopped and questioned, charged, severely sentenced and incarcerated in jails or prisons, and are less likely to be granted parole than the general population. As well, Black people continue to suffer economic subordination and abandonment. They are discriminated against in employment and daily lives. Former mayor of Toronto June Rowlands and senior police officer Chief McCormack are famously reported to have associated Black and crimes.

The demonization of Black communities that has been continually reinforced by the criminal justice system has been largely accomplished by age-old associations between Blackness and criminality- the racialization of crime. This can be traced back to runaway slave advertisements dating back to the seventeenth century, in which self-liberated Blacks were portrayed as thieves and criminals. All free and enslaved people were subject to the surveillance of a larger white community and law enforcement officials.

Suffice to say that the enormous discretion granted to law enforcement in where to seek out crime and to determine who seems suspicious plays a significant role in who becomes a criminal offender. Racial profiling — surveillance or police encounters that occur because of stereotypes regarding race, ethnicity or religion — serves an important role in determining policing practices. The assumption that Black people are likely to be criminals results in more Black people being watched, caught, charged and incarcerated. Profiling is a self-fulfilling prophecy. The more a group is targeted, the greater the likelihood that criminality will be discovered. If you target Black criminals, you will find Black criminals, it is that simple.

The same scenario is repeated in the enforcement of drug laws, where racialized low-income communities are targeted by law enforcement, not because of verifiable data showing more drug crimes, but largely because of the perception that Blacks are more likely to commit drug crimes than Whites. Consequently, instead of massive investment in the needs of society — including social services and addiction support — the communities that were associated with drug crime are the target of widespread hostility and oppression.

Black communities continue to be subjected to the violence of surveillance and arrest, and are still being forced to spend important years of their lives behind bars, separated from family, saddled with criminal records, exposed to trauma and isolation resulting from imprisonment, all for policies that have helped and protected no one inside or outside of the Black community

Beyond targeted police profiling and violence, this discrimination continues all the way up the courts. Black-white disparities can be found in pre-trial detention and release conditions, including bail and sentencing. For nearly any crime, not only are people of African descent more likely to be arrested, but they are also much more likely to be detained pre-trial, to have restrictive bail conditions and to receive longer sentencing for the same charge. Black prisoners also continue to experience high rates of violence at the hands of prison staffers. Black prisoners are acutely vulnerable to psychological harm with isolation practices known to inflict unnecessary suffering and cause long-lasting harm.

The NCA provided two cases in the syllabus in relation to anti-Black racism- the cases of R. v. Morris, 2021 ONCA 680- and 8573123 Canada Inc. v. Keele Sheppard Plaza Inc. 2021 ONCA 371.

In R. v. Morris, 2021 ONCA 680- the court noted that anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased. The court considered how trial judges should take evidence of anti-Black racism into account on sentencing. The court held that while an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence; an offender’s personal circumstances, including those tied to overt and institutional racism and its multi-faceted effects, can be relevant in determining an appropriate sentence.

Similarly, in 8573123 Canada Inc. v. Keele Sheppard Plaza Inc. 2021 ONCA 371, the court was called upon to determine the right of a landlord not to renew the lease of its tenants. The court held that societal realities pertaining to Black business people like the Tenants must be factored into the exercise of the Court’s discretion in considering equitable remedies like injunctions and relief from forfeiture.

Anti-Black racism must be ended in words and in deeds. Discriminatory practices of law enforcement agencies such as profiling, carding, street checks and over surveillance of Black communities must be addressed in the light of charter rights and freedoms.

Candidates must be aware of these practical issues in their interactions with the Canadian legal systems.

By Masud Balogun