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PART III: ANTI-BLACK RACISM IN CANADA’S CRIMINAL JUSTICE SYSTEM
The Canadian Charter of Rights and Freedoms promises that:
[e]very person is equal before and under the law...and that every
person is entitled to equal protection and benefit of the law without
discrimination based on race, national or ethnic origin, colour, religion,
sex, age, or mental or physical disability.
This promise is woefully unfulfilled for many African Canadians who come into contact with Canada’s criminal justice system -- in particular it’s front-line agents, the police. Studies show a continuum of systemic racism in criminal justice, including police abuse of power, sometimes resulting in unexplained killings of African Canadians. As if in tandem with this exercise of state power, African Canadians have also been subject to prejudice, bias and discrimination in the administration of justice, i.e., by crown attorneys, judges and juries.
Of all the social structures in Canadian society in which anti-Black racism is embedded, the criminal justice system is often the one that imposes the most severe of consequences on African Canadians. First, there is the humiliation and emotional pain of being suspect and arrested. Then there is the charging of suspects as well as their treatment in bail hearings, two aspects of the criminal justice system which affect African Canadians in a severely disproportionate manner. A hearing in which the crown, judge and, if required, jury appear to be working in tandem against the accused often follows this. And as noted earlier, there are those situations in which African Canadian males are mistreated or killed by the police under suspicious circumstances.
A long list of reports commissioned by various levels of government since the end of the 1970’s examine the impact of race relations and policing. Most of these reports are the result of tensions between the African Canadian community and the police. Whether in Montreal, Ottawa, Halifax or Toronto, the attention garnered in these reports toward the conflict between police and African Canadians, particularly African Canadian males, is astounding. Nonetheless, very little has changed in the relationship between the African Canadian community and the police thus prompting an unparalleled lack of dialogue and co-operation between these two groups. The lack of communication and hostility between the police and the African Canadian community is noticeable in the latter’s unwillingness to co-operate with the former.
Once again, aside from the Aboriginal community, no other racialized group is treated this way and this requires that particular attention be directed to the concerns and experiences of the African Canadian community, particularly as it relates to the:
Use of deadly force:
Since the 1978 shooting deaths of two Black men, Albert Johnson (Toronto) and Buddy Evans (Montreal), municipal police forces across Canada, particularly in the City of Toronto, have had numerous encounters with the African Canadian community involving the use of lethal force has been inordinately used. These interactions are the result of what has been called the ‘overpolicing’ of African Canadian communities and police interventions into these communities to stop, question, detain and arrest predominantly young Black males. For example, the communities of Regent Park, Birchmount and Finch, Lawrence Heights and Jane and Finch, which have high populations of African Canadians are excessively policed.
While there have been efforts by the police, community groups and government representatives to stem the tension, the relationship between the police and the community further deteriorated as a result of the shooting deaths of Black males by police officers.
In her 1998 publication, When Police Kill, Gabriella Pedicelli documents incidents when police have used deadly force against African Canadians in Toronto, Ontario and Montreal. Six such incidents are cited below.
October 7, 1988 - Lester Donaldson, a mentally ill man, was shot and killed by the police after they were called to investigate a complaint at a rooming house in downtown Toronto. The police alleged that they saw him threatening four people with a knife, which he also allegedly swung at the officers, when they attempted to detain him.
December 8, 1988 – Michael Wade Lawson, an unarmed man was shot in the back of the head as he and a companion fled from the police in a stolen car. The police shot at the rear window as the stolen car sped away. Police fired six shots. Police at first said that Lawson was shot as he drove a stolen car towards them, but later admitted that the shots were fired from behind the car.
January 25, 1990 - Donald Peltier was fatally shot after he ran from a bullet-ridden car following a high-speed chase. The police alleged that he and his partners had shot out the back window of the car and had commenced firing at the police vehicle.
November 29, 1991 - Kenneth Alfonso Allen, died of an alleged cocaine overdose 77 minutes after he was taken into custody. He allegedly attacked a streetcar driver. He was subdued and handcuffed and was being taken to the police station when he fell ill. He was rushed to the hospital where he later died. Allen’s death was originally ruled as a cocaine overdose, but Ontario’s Special Investigations Unit (SIU) reopened the case three years later due to new evidence which showed that Allen had bruising on his neck. This suggested that the police used excessive force. The officer was charged with two counts of criminal negligence and refused to co-operate with the SIU. An inquest into the matter was abruptly cancelled in early 1994 without explanation.
May 2, 1992 - Raymond Lawrence, was shot twice in the chest after a long foot chase. The police alleged that he pulled a knife on one of the officers. The family’s lawyer stated that a fence might have blocked the officer’s view when he said he saw Lawrence run at another officer with a knife.
April 20, 1993 - Ian Coley was shot twice in the chest and killed. He was pulled over in what the police say they believed was a stolen car. He jumped out and was chased on foot. The police alleged that he fired first. No evidence of this was ever found.
Others have been shot as well (e.g., Sophia Cook, T.T. - under the age of 18 - Tommy Barnett, Wayne Williams, Andrew Bramwell, Faraz Suleman, Francis Nichols and Henry Musaka). The frequency of these shootings has been discussed in several reports and articles which note that between 1982 - 1988 and 1988 - 1993, eight African Canadian males and five African Canadian youth were killed by the police in Toronto and Montreal respectively.
The above cases clearly illustrate how the system permits the police to treat peoples of African descent. In each instance, organizations within the African Canadian community argued that the possibility existed for police to apprehend the suspects without causing death. However, because the police ascertained that they were in a life-or-death situation, applied a harsh and irrevocable measure. More African Canadian male suspects are killed by police than suspects of any other racial group, and many of these fatal killings occurred under preventable circumstances. All of the officers involved in the killings of African Canadians cited above were absolved of all criminal responsibility despite the questionable circumstances of the incidents.
African Canadian communities have described such developments as an example of "policing Black" - part of a system of subjecting African Canadians, young males in particular, to excessive policing. There is an abundance of anecdotal and researched evidence of "policing Black" in Toronto. For example, a study done by the Committee to Stop Targeted Policing (CSTP) in 2000 found that 2 out of 3 interviewees (of the 167 interviewees, many of them were African Canadians from low-income neighbourhoods) reported being assaulted or threatened with assault by police. Actual assaults ranged from being beaten, slapped, punched and maced. Threats have also included ‘threats of death’ (37% threatened). Other intimidation tactics used include police demanding names and identification of people who had done nothing wrong (79%); being harassed (74%); being threatened with arrest (59%); being searched without good cause (54%); being issued false tickets for jaywalking (49%) arrested on false or improper charges that were eventually thrown out (35%) and having their photographs taken on the street without their consent (25%).
More recently, the discussion around discriminatory policing of African Canadians has focused on "racial profiling" which refers to the racialized assumptions, beliefs and practices leading to discrimination against racial groups. Specifically, and in regards to policing, racial profiling uses race, consciously or otherwise, in official guesses about which individuals are likely to break the law. In effect, this describes the juncture at which racism in the individual gets expression in systemic racism, that is, in the discriminatory application of police policy and procedure. This practice is cited in numerous instances concerning the interactions between African Canadians and the police and is a key item in almost all of the reports commissioned to address this matter and will be discussed below.
Reports, reports, reports:
Since the end of the 19th and beginning of the 20th century, there has been ample evidence identifying the disproportionate impact of the criminal justice system on peoples of African descent. Despite the expression of concern by the African Canadian community regarding these facts, there has been little leadership from either government or the public to address the issues. The only time attention has been paid to these serious concerns is after a significant event, usually one in which police use of violence and/or force has resulted in serious injury or death.
Following the shooting deaths of Buddy Evans and Albert Johnson, the Municipality of Metro Toronto established a commission under the direction of Cardinal Archbishop Carter to probe the relationship between the African Canadian community and the police and to make recommendations for action to prevent future killings. A specific incident in Tandrige Crescent in the City of Etobicoke resulted in another report and recommendations for the consideration of regional and local decision-makers.
These two reports established a pattern of government response which looked like this:
In addition to the numerous reports and studies, in the 1990s African Canadians took several proactive, community-based steps to address the increasing criminalization of Black youth. For example, in 1992 an African Canadian Courtworker Program was established in four courts in Toronto. This program was hailed as an overwhelming success and was expanded to two additional courts. In 1996, the Ontario government abruptly discontinued funding to the program and a successful community initiative towards meaningful intervention in the criminal justice system and in the lives of African Canadian youth was dismantled without any reason or justification. The other two initiatives developed by the African Canadian community were a Diversion Program for youth and a Drug Court Treatment Program. Both programs were designed to address the needs of African Canadians in a holistic and racially sensitive manner. These two programs received no support from any level of government. Moreover, the media severely criticized the programs stating they would establish a separate justice system for Blacks. It is important to note that both programs were later copied in their entirety and two mainstream, predominantly White organizations that have a poor record of serving African Canadians received considerable funding and support from the federal and provincial (Ontario) governments to run them. The African Canadian community was again shut out, and the cycle of over-representation and anti-Black racism continues for African Canadians in the criminal justice system.
On May 2, 1992 there was a riot in Toronto which served as both an expression of outrage by African Canadian youth and their allies against police brutality in Toronto and in support of Rodney King in California and Wade Lawson in Toronto. This riot touched off a heated controversy regarding its causes and brought into focus, once again, the deteriorating relationship between the African Canadian community and the police. In response to this, two high level initiatives were put into place: a Four-Level of Government Working Group; and a one person task force set up by the Ontario Government to focus specifically on the interactions between racial minorities and the police. While both reports focused on all aspects of racism impacting on the African Canadian community, the latter recommended that specific attention was needed to address the concerns of the African Canadian community in its relationship with the criminal justice system.
This led to the establishment of a Commission on Systemic Racism in the Ontario Criminal Justice System. The Commission released its final report, a major document and study, in 1995 entitled, Systemic Racism in the Ontario Criminal Justice System. This report made clear a number of facts, including that:
In the prison system, African Canadians and other minorities are subjected to racism on a daily basis. This occurs in the form of racial slurs, to being moved more frequently to detention centres and prisons outside of the jurisdiction and being placed in solitary confinement. The isolation lessens an inmate’s opportunity to get the support he or she needs for effective rehabilitation and transition back into society. Many times, poor transition is at the root of recidivism. This is also one way in which police targeting of young African Canadian males lead to their "criminalization."
While these data are particularly insightful into the unequal relations between African Canadians and the criminal justice system, other studies support these assertions as well. Professor Scott Wortley has undertaken research in 1994 which indicates that:
This has led to Blacks perceiving that they are treated significantly different than Whites and other racialized groups. For example, 75% of Blacks perceive they are treated differently than Whites by police and this perception is shared by 50% of Whites and Chinese. Black people (55%) perceive that they are treated worse than Whites and Whites (71%) and Asians (79%) share this perception. Further, 55% of Blacks perceive police will use force against them more frequently than Whites and Whites (33%) and Asians (42%) share this perception.
Similar patterns of differential treatment have also been identified in studies conducted into the treatment of people of African descent in their air travel experiences. For example:
The reports noted in paragraphs 1-3 above reached national attention through a media article in the Toronto Star in 1998 entitled "Black Passengers Targeted in Pearson searches?" which quoted Professor Wortley as saying: "There’s an over-surveillance of the Black community ….We’ve found that if you are Black and you do something wrong, you are more likely to get caught than people in the White community. This has a wide impact, especially for discretionary crimes like drug use, where police have to go looking for the stuff." The implications of this are very clear. There is a specific approach by police authorities and the criminal justice system as a whole, to the treatment of African Canadians which is different than that afforded members of other racialized groups the one exception being Aboriginal peoples.
Weak public accountability:
It is interesting that after each of the studies noted above, despite their overwhelming focus and orientation, little has been done to change the interactions between the African Canadian community and the police. This is because there are very few administrative bodies in Canada that can hold police accountable for their actions. While most police forces have established political Boards of Directors, these are filled with individuals who work primarily on a volunteer basis and rarely have the time or influence to oversee the actions of large and powerful police forces.
In some cases, other bodies have been established to ensure a measure of accountability in police actions. For example, the Province of Ontario has established a Special Investigations Unit (SIU) that is now the only outside agency with any influence on police actions, short of an individual taking a civil action to the courts or filing a human rights complaint. The SIU was established to "cause investigations to be conducted into the circumstances of serious injuries and deaths that may have resulted from criminal offences committed by police officers." This body remains operative despite the dismantling of the public complaints function established by the Ontario government in the early 1980s to receive and investigate complaints against police,. Over the past two decades various committees on community and race relations have attempted to provide some mechanism of accountability for police through the interest and oversight of Mayors and Municipal Councils.
This has left a significant gap in holding the police accountable for their actions, particularly if such actions result in death. Further, it appears as if the provincial government and police forces across the province of Ontario have sought to further free police from the constraints of being accountable to the public for their conduct. The main strategy has been to dilute or deride the mandate of the Special Investigations Unit (SIU), the province’s civilian oversight agency. Government tactics against the SIU have included gross under-funding of the agency and forcing the development of a "secret protocol between the Ontario police force and the Solicitor General’s office to give back to local forces the investigations of the very incidents that the SIU was created to investigate." Police tactics to weaken or rid themselves of the SIU have included:
Each effort to dismantle or dilute the authority of the SIU has been strongly opposed by the African Canadian community in Ontario. For this community, the SIU represents the last curtain of defence between them and a police service that appears to have not just criminally racist tendencies, but also the support of the political and justice systems.
In addition to attacks on the SIU, the police use other tactics to avoid accountability for their interactions with African Canadian community members. For example, they will justify their misconduct by stigmatizing the ‘victim’ through the media, with statements such as "the suspect has a criminal record"; "was engaging in criminal activity"; "is dangerous"; "police felt threatened"; "facing grave danger"; "immigration status questioned." Police will also sue citizens if they dare complain. In 1995, it was reported that in Halifax, Nova Scotia, three 12-year-old African Canadian girls accused of stealing $10 were told to take down their pants and underwear and lift up their shirts by the officers questioning them. The girls were also not read their rights nor told they were legally allowed to have a lawyer or parent present. The lawyers who represented the girls were later sued by the police for defamation, for daring to suggest that these actions by police were racist.
Hate crimes and racism in the military:
In addition to the criminal justice system’s exertion of pressure on African Canadians, there are also the overt forms of racist behaviour exhibited by members of the public and by organized hate groups. This poses very clear challenges with severe outcomes for African Canadians who tend to be most frequent targets of hate activities and points to the feeble efforts of the state to address such crimes through both law enforcement and through prosecution of those convicted.
In a 1995 report prepared for the Municipality of Metropolitan Toronto entitled Hate: Communities Can Respond it is noted that, according to the Metro Toronto Police statistics, racial minorities comprise the most significant number of individuals violently attacked in hate crimes (54%) and that "Black individuals were victimized in more than half (51%) of the racial incidents in 1995" and that "Assaults on racial minorities were 68 percent of the total assaults. Black people faced the severest of these attacks, with 40 cases of victimization by assault."
While these statistics focused on Canada’s largest city, they are confirmed in other areas through the report Disproportionate Harm: An Analysis of Recent Statistics by Professor Julian V. Roberts. In his data gathering, Professor Roberts acknowledges that Toronto is not alone in reporting on the disproportionate number of attacks against African Canadians. He notes that this is the case in Ottawa where anti-Black attacks comprise 75% of reported crimes in 1993-4 and in Montreal where 79% of hate crimes were against racial minorities with 69% of those constituting acts of violence against African Canadians in 1994. Professor Roberts discusses the difficulties in reporting hate crimes and notes that the lack of a uniform definition of such crimes as well as national data gathering inhibit the direction of appropriate attention and resources to these crimes. This leaves particular communities without appropriate state protection and subject to random acts of physical violence by individuals and organizations solely motivated by hate; and as the numbers indicate, this has an overwhelming impact on African Canadians.
Perhaps no one incident captured the nation’s attention more than the discovery of hate motivated violence in the Canadian military operation in Somalia which prompted an inquiry to probe how individuals with overt racist and White supremacist beliefs murdered an innocent Somalia youth. In response to the killing of a Somali civilian by Canadian peacekeeping troops, the Canadian government established the Commission of Inquiry into the Deployment of Canadian Forces to Somalia. While the Commission was mandated to assess and make recommendations on the causes of the apparent racist behaviour and violence demonstrated by Canadian peacekeeping troops, it was cut short by the Federal Government before it could complete its report and make its recommendations. This was very unfortunate as it left several unanswered questions relating not only to the possible Neo Nazi affiliations of the individuals involved but the role of senior military personnel that either supported or ignored their overt behaviour. It also left unprobed the recruiting techniques of the armed forces and how such individuals are assessed for entry into the military and, particularly, into specialized peacekeeping operations. The Canadian Armed Forces has adopted a Policy on Racist Conduct as a result of allegations of racism which emanated from the incident in Somalia. However, by truncating the Commission’s work, the Federal Government sent a clear message to African Canadians that it was neither prepared to examine the extent of racist beliefs and individuals within its military operations and command structure, nor conduct a responsible investigation into the killing of an African male.
The not-so-silent partner in systemic racism among police and in the justice system is the media which plays a strong role in perpetuating police thinking (and that of the wider White community) that particular groups of people are more likely to commit crime. According to Gabriella Pedicelli as well as Carol Tator and Frances Henry, the media, through thematic coverage of crime stories, present a distorted picture of who commits crime, and manipulate facts to present a skewed reality. By selecting news on the basis of themes, incidents are stripped away from their context and redefined within a broader generalized category.
For example, in the media/police psyche, Jamaica is labelled as having one of the highest crime rates in the world (this is on a per capita basis). Because there is a high percentage of Jamaicans in Toronto, it is assumed that Jamaican males have a higher propensity to commit crimes than other African Canadian groups living here. An article titled "Island Crime Wave Spills Over" carried in the Globe & Mail in July of 1992, implied that Jamaica’s crime, through immigration, had spilled into Canada thus contributing to the increase in Canada’s crime rate. In the article, West Kingston in Jamaica was described as the toughest slum in the Caribbean, pulsating to reggae music and the constant threat of death. The journalist used police-gathered, ethnically-based crime data that targeted young Jamaican males as the group most responsible for committing crimes in Toronto ‘in an explosion of guns and crack cocaine…’ and relied on quotes from the police to support his statements.
In a second article, "The Twisted Arm of the Law", a link was made between Jamaica’s ‘brutal’ police force and the reaction of Canadians of Jamaican descent to Toronto Police. The article argued that the distrust expressed by Jamaican-Canadians towards the Metro Toronto Police was related to an instinctive unease towards the Jamaican police force that is alleged to be heavy-handed.
The rationale for these stories was to explain the apparent upsurge of crime by Jamaicans in Canada, and focused on young Jamaicans needing restraint because of the perceived ‘increased criminality’ among them. A clear attempt was made to connect and blame Canadians of Jamaican origin and other African Canadians to the ‘crime wave’ in Canada. This type of reporting led to feelings of "shame" by African Canadians while others in the wider Toronto community felt that their city was under siege from Jamaican criminals thus giving the police the moral authority to use force, including deadly force, to rid the city of crime.
Further ‘collusion’ occurs in the racialization of crimes through by sensationalizing certain cases (as in the ‘Just Desserts’ case – please see the Immigration section for a reading of ‘Just Desserts) through biased and uncritical reporting of crimes. As Henry and Tator argue, the press also creates a moral panic in which isolated cases of violence are represented as an indication of a profound societal crisis that imperils the nation. This helps to reinforce individual beliefs and behaviours, collective ideologies, the formation of public policies and organizational practices.
Clearly, there is a symbiotic relationship between the police and the media. This seems to be especially true for television. One marvels at the speed with which the "live eye" of the media camera is always on the scene of a crime and at the frequency with which the African Canadian suspect’s face is televised compared to the face of a White suspect. Since the adage claims that a picture is worth a thousand words, then the television image of African Canadians being taken into police custody would appear to tell the entire tale. Also of note is the reporting of the minute details of "Black-on-Black" crime without any attempt to report stories of Blacks engaged in lawful and productive activities.
Given the critical need to identify, challenge and eliminate anti-Black racism in the criminal justice system, there are several actions required to ensure equality of treatment by the criminal justice system in its relationship with African Canadians. These are:
In addressing these and other topics, the challenge facing African Canadian communities is to develop and maintain ongoing political presence that commands the attention of each level of government. To do this, the African Canadian community must develop effective media techniques and public education/mobilization techniques needed to advance and monitor strategies aimed at sensitizing police and the justice system to their concerns. The African Canadian community and the wider society must hold government responsible for developing and implementing credible, effective, policies for the eradication of institutional and systemic anti-Black racism in the criminal justice system. Failure to do so will only perpetuate the unnecessary criminalization of African Canadians, particularly youth, and perpetuate the imbalance of state power and its insidious impact on the African Canadian community.