Systemic Discrimination in the Canadian Criminal Justice System

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Executive Summary

Systemic discrimination exists in institutional processes, policies, and practices, and is entrenched within the criminal justice system. This article discusses the historical and structural issues that impact the policing of racialized communities, predominantly Indigenous and Black people in Canada. This article relies on police use of force and incarceration data to highlight the racial disparity in policing in Canada. The article also identifies some of the recent efforts by the Government of Canada to combat systemic racism in policing, training, and oversight, and outlines policy recommendations from researchers to advance lasting change within the criminal justice system.

Introduction

Systemic racism is fueled by exclusion in the culture, rules, practices, or procedures within a society. Systemic racism displaces or marginalizes some racialized groups, and creates and reinforces unfair barriers for racialized groups to access valuable benefits and opportunities.[1]Racism, including anti-Black and anti-Indigenous racism, is found throughout Canadian institutions in their processes, policies, and practices.[2] Racism is displayed by discrimination of specific racialized groups across an extensive range of institutional systems, including housing, education, employment, finance, media, health care, and most notably, criminal justice.[3] Systemic racism in the policing of Indigenous, Black and other racialized people is embedded in court processes, prison practices, and routine policing practices such as street checks, police stops and arrests, police use-of-force, and the resistance to the collection of race-based data by police forces.[4]

There is growing consensus on the issue of systemic discrimination in the Canadian criminal justice system. In the past year, the Supreme Court of Canada addressed issues of racial profiling in R v. Le[5] and R v. Ahmad,[6] and held that members of racial minorities have disproportionate levels of contact with the police and the criminal justice system in Canada. In June 2020, Royal Canadian Mounted Police (RCMP) Commissir Brenda Lucki stated that “systemic racism is part of every institution, the RCMP included.”[7] Prime Minister Justin Trudeau also affirmed the existence of systemic racism in policing, saying: “systemic racism is an issue right across the country, in all our institutions, including in all our police forces, including in the RCMP. It is recognizing that the systems we have built over the past generations have not always treated people of racialized backgrounds, of Indigenous backgrounds fairly through the very construction of the systems that exist.”[8]

A History of Systemic Discrimination in Canada’s Criminal Justice System

Systemic and overt racism by Canadian law enforcement agencies towards racialized communities, especially Black, Indigenous and Afro-Indigenous peoples, and the corresponding lack of accountability and responsibility for those actions are historical and contemporary realities.[9]

The colonial experience for Indigenous peoples from early French and British contact was marked by attempts to control Indigenous lands and natural resources. Efforts to implement colonial control mechanisms included violent relocation to reserves and designated settlements.[10] In 1873, the North-West Mounted Police (NWMP), which became the RCMP, was created to enforce the assimilation policies of the Indian Act (1876) and advance the agenda of the newly established Canadian dominion.[11] The NWMP forced Indigenous peoples onto reserves, controlled their movements through the ‘pass system’ that required travel documentation from 1885 to 1940s, and suppressed Metis people in Manitoba to live in road allowance communities in ‘marginal spaces at the edge of Canadian society.’[12] The historical legacy of assimilation policies, including, but not limited to, the Indian Residential School System, has been acknowledged as evidence of systemic racism embedded in the RCMP history.[13]

The enslavement of Black people living in colonial Canada, the surveillance and disproportionate over-policing that rose out of slave patrols, segregation, and the successive wage gap after abolishing slavery is central to the persistent, structural racism that Black Canadians face today.[14] Slavery was formally abolished across the British colonies and in British North America (now Canada) in 1834, after over 200 years of slavery of Black and Indigenous peoples.[15] By the end of the 1700s, about 2,000 Black people were enslaved in the Maritimes region, 300 people were enslaved in Lower Canada (present-day Quebec), and 700 people were enslaved in Upper Canada (present-day Ontario).[16]While some Canadian jurisdictions had already taken measures in the years leading up to the end of Imperial slavery in 1834, such as by passing anti-slavery laws to restrict or end slavery, Black people in Canada still faced segregation and impending threats of hate groups, including the Ku Klux Klan, after emancipation.[17] Although colonialism impacted both Black and Indigenous communities differently, the convergence of multiple factors, including criminalization, systemic racism, over-policing, and poverty among Black and Indigenous peoples, lays the ground for systemic racism and discrimination.

The RCMP has enforced race-based discriminatory practices, including forced displacement and excessive force on Black, Indigenous, and racialized people.[18] For example, the RCMP, following federal government policy, implemented the forced displacement of Inuit peoples from Inukjuak, Quebec, to Resolute Bay and Grise Fiord (presently Nunavut) between 1953 and 1956.[19] The shooting of JJ. Harper by a Winnipeg police officer in 1988, the death of Neil Stonechild in 1990,[20] and the ‘Starlight Tours’ in Saskatoon provide a context of how race and racism informed the routine practices of police officers and defined police relations with Indigenous communities.[21] The more recent deaths of nine Black, Indigenous, and racialized people during interactions with police in Canada, many of whom lived with mental health issues and were in crisis when they encountered police, further highlight long-established incidents of disproportionate use of force on racialized communities. Their deaths have reignited conversations about police accountability, transparency, and the need for police reform.[22]

Current State

Evidence has shown that racial bias and discrimination exist in administering the Canadian criminal justice and policing system. A 2020 report by the Correctional Investigator of Canada revealed that despite accounting for 5% of the general Canadian population, Indigenous people constitute 30% of the federal prison population.[23] Since April 2010, the Indigenous incarcerated population has grown by nearly 44%, while the non-Indigenous incarcerated population has declined by 13%.[24] The highest figures were in Manitoba, Saskatchewan and Alberta, where Indigenous people make up 54% of the prison population.[25] While in federal custody, Indigenous inmates are also disproportionately classified and placed in maximum security institutions. They are often subjected to the use of force, overrepresented in self-injurious incidents, and are more likely to be placed and held in solitary confinement units while in custody.[26] Data has shown that Indigenous people are more likely to re-enter the criminal justice system than non-Indigenous inmates as they continue to be jailed at a younger age, denied bail more frequently, granted parole less often, are over-represented in segregation and remand custody, and are more likely to be classified as higher risk offenders.[27] A 2018 corrections report showed that Indigenous offenders accounted for 35% of the dangerous offenders and 24% of the total offender population.[28]

Numerous social and economic factors have also continued to exacerbate civil-police tensions and contribute to the imbalance in convictions of Indigenous people. The lack of strong education systems, health systems, social services and other institutions in First Nations communities in remote areas have contributed to disproportionate levels of poverty. The high level of poverty, especially among Indigenous youth, has led to higher substance abuse rates and domestic and other forms of violence in some communities.[29] The RCMP and the provincial police are often called to deal with the repercussions of the breakdown of essential services systems, which can manifest in violence, dysfunction and anti-establishment attitudes.[30]

Graph 1: Percentage of the federally incarcerated population that identifies as Indigenous each year since 2001. Graph 1 shows a steady increase in the incarcerated Indigenous population since 2001.

Graph 2: Indigenous versus non-Indigenous compositions of the federally incarcerated population since 2009. Graph 2 shows a decrease in the non-Indigenous federally incarcerated population and an increase in the Indigenous federally incarcerated population since 2009.

A 2016 report revealed that although African-Canadians make up 3% of the general population, they account for 10% of the federal prison population. Further, like Indigenous inmates, African-Canadian inmates are more susceptible to the use of force and segregation while in custody.[33] Another study noted that although Black offenders had lower rates of a tendency to re-offend, they were more likely than the general population to be placed in maximum security institutions than minimum security institutions in federal prisons.[34] A 2020 report by the Ontario Human Rights Commission confirmed that Black people represent one-third (32%) of all the charges in the dataset and one-fifth (20%) of all charges that resulted in convictions. They are also more likely to be arrested, charged, over-charged, struck, shot, or killed by the Toronto police.[35]

A 2017 United Nations Working Group Report attributed the overrepresentation of Black Canadians in the criminal justice system to the structural racism and racial bias at the core of Canadian institutions, including racial profiling, the exercise of prosecutorial discretion, the imposition of pretrial incarceration, and disparities in sentencing.[36] For example, the Working Group found evidence of excessive use of force and police-involved deaths, particularly when responding to cases involving vulnerable people of African descent, such as those with mental illness. It was also found that random street checks or ‘carding’ disproportionately affect African-Canadians.[37]

Addressing Systemic Discrimination

To address the impacts of racial discrimination and the over-representation of Indigenous, Black, and racialized communities in the criminal justice system, experts have said that policies need to address the systems and structures that sustain and protect systemic racism. Dr. Christian Leuprecht, a professor at Queen’s University and Royal Military College of Canada, recommends changes to the governance, leadership, and structure of institutions like the Royal Canadian Mounted Police (RCMP), implementing alternative service delivery for policing through increasing the civilianization of service delivery where possible, strengthening community policing, and improving accountability mechanisms, amongst other measures.[38]

Alternatively, think tanks such as the Yellow Head Institute, a First Nations-run research centre located at Ryerson University, advocate for the abolition of prisons and reinvestment of the funding in housing, healthcare, and education to eradicate structural inequalities and discrimination that underpin the incarceration disparity between racialized minorities and their white counterparts in the criminal justice system.[39]

Current Government of Canada Actions

In 2018, the Department of Justice commissioned a report by the Institute for Research on Public Policy, an independent not-for-profit whose research focus includes the social safety net for working-age adults. The report identified five social factors that lead to adverse justice outcomes: income, employment, stable housing, education, and health.[40] These factors have wide-ranging implications for members of Black and Indigenous communities who are often disproportionately affected by them.

Research suggests that lasting policy reforms should focus on policing and include reforms to the entire criminal justice system to address socio-economic conditions that disproportionately lead to the criminalization of members of racialized communities.[41] Ensuring equitable access to proper health care, education, income support, and housing among Black and Indigenous people would help increase the safety of all communities, address gaps in society, and ensure that current provisions are aligned with the criminal justice system objectives.[42]

The Government of Canada has made several pledges and commitments to curb numerous injustices and barriers faced by racialized communities in Canada, which are outlined below. 

Impacts of R v Gladue (1999)

The Supreme Court of Canada decision in R v Glaude outlines the factors that a judge should consider when determining the sentence to ensure that is fit for the offender and the offence. It mandates that sentencing judges “consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of Aboriginal offenders.”[43] This decision led to the creation of Gladue reports, a special pre-sentencing and bail hearing report that prompts an investigation into a person’s background before sentencing to understand any extenuating circumstances. This case also initiated the creation of Gladue Courts, also known as Indigenous Peoples courts, which are courts for people charged with a crime who self-identify as Indigenous, Metis, First Nations, or Inuit that incorporate Indigenous cultural practices and understandings of justice.[44]

Anti-Racism Action Strategy

In 2019, the Government of Canada launched an Anti-Racism Action Strategy to fight and prevent systemic racism in government decision-making, programs, and services.[45] The Strategy focuses on:

• demonstrating federal leadership in addressing racism and discrimination
• empowering racialized communities, including Indigenous communities by funding projects and facilitating capacity-building
• building awareness of the historical roots and adverse impacts of racism and discrimination in Canada, providing data and evidence to identify and address inequalities, and facilitating corrective action to help eliminate racism and discrimination

The Federal Government also introduced the Anti-Racism Action Program to aid the implementation of Canada’s Anti-Racism Strategy.[46] The program funds projects that aim to address barriers in employment, justice, and social participation among Indigenous Peoples, racialized communities, and religious minorities.

Black Entrepreneurship Program

In the wake of violent acts of racism across North America,[47] a group of Black Parliamentarians and allies released a statement on June 16, 2020, calling for effective and immediate action at all levels of government to eradicate the consequences of systemic racism in Canada and provide targeted aid to Black-owned businesses.[48] In response, Prime Minister Justin Trudeau announced the jointly funded $221 million Black Entrepreneurship Program. The program would assist Black-owned businesses and entrepreneurs who have been disproportionately affected by the COVID-19 pandemic to assist with recovery and business growth.[49]The program, which will be funded by the federal government and eight major financial institutions, will include:[50]

• $53 million for the National Ecosystem Fund for Black-led business organizations across Canada to provide access to funding, mentorship, financial planning, and business training
• $33.3 million for the Black Entrepreneurship Loan Fund for loans ranging from $25,000 to $250,000 for Black business owners and entrepreneurs
• $6.5 million towards the creation of a Black Entrepreneurship Knowledge Hub to collect data on the state of Black entrepreneurship in Canada and on the barriers preventing Black entrepreneurs from succeeding in business

Police Body Cameras

Following Rodney Levi and Chantel Moore’s deaths, both Indigenous peoples, Prime Minister Justin Trudeau, committed to equipping Canadian police with body cameras.[51] This commitment was part of the RCMP reform plan to help overcome public distrust and address racism and police brutality allegations.[52] RCMP Commissioner Brenda Lucki also agreed to “engage in work and discussions on a broader rollout of body-worn cameras” to ensure accurate evidence gathering, accountability, and increased transparency.[53]

However, there has been a mixed response to the use of police body-worn cameras. While some experts lauded the idea, calling body-worn cameras “the best tool” to ensure appropriate conduct by police officers, other experts argued that there is a need for more concrete action that causes a cultural shift to change the behaviour of race-based policing in Canada.[54] As of 2021, several police departments across the country have begun equipping their police offers with body-worn cameras, while others are not sold on the idea.[55]

First Nation Policing Program

The Government of Canada revealed that it is working on a legislative framework to recognize and expand culturally appropriate First Nations policing as an essential service. In 2018, the government committed to spending $291 million on the First Nation Policing Program, designed to support policing in First Nation and Inuit communities by providing adequate policing infrastructure to people who live and work in these communities.[56] The Department of Public Safety and Emergency departmental plan for 2020-21 includes strengthening the public complaint process and enhancing the Civilian Review and Complaints Commission’s review and investigative powers to ensure greater accountability of the RCMP.[57]

Despite the federal government’s commitments to ensuring equitable practices, recent statistical data indicates that the measures taken to date to combat systemic racism have not provided their desired results. Many of the programs discussed above are still in the early stages, and it takes a long time to change attitudes that exist within the policing and criminal justice system. Researchers have urged the Government of Canada to lead continuous efforts to create comprehensive change and reforms, including changes to reduce re-admission and return of Indigenous offenders into custody, better prepare Indigenous offenders to meet earliest parole eligibility dates, and safely return Indigenous offenders to their home communities.[58] Researchers have also stressed the need to focus on ‘thoughtful actions’ to address systemic racism, including actions to curb the use of excessive force and ensure greater accountability for all police intervention occurrences through internal review processes.[59] In a statement from June 2020, RCMP Commissioner Brenda Lucki affirmed that there is still more work to be done to eradicate systemic racism and discrimination within the RCMP, saying, “we now have the opportunity to lead positive change on this critical issue. It is time to double down on these efforts — there is so much more to do.”[60]

Conclusion

The data shows that there is an over-representation of Indigenous, Black, and racialized communities in the criminal justice and policing systems, and that racial bias and discrimination continues to exist in the administration of these systems. To address this, the government of Canada has created programs that aim to remove systemic barriers and racism faced by racialized communities. However, these programs remain in their early stages and have not yet resulted in significant changes. Researchers have argued that to achieve lasting policy change there is a need to start with acknowledging the history of oppression and exploitation in Canadian policy and applying a holistic approach that incorporates the voices of these communities.