Black overrepresentation in Canadian prisons: Data gaps and judicial bias hinder progress, lawyer says

Criminal and penal lawyer, Fernando Belton. (Photo by Jean Numa Goudou / New Canadian Media)

April 8, 2024 Story by: Editor

Challenges Persist Despite Bill C-5’s Passage to Address Black Incarceration Rates

Two years after the enactment of Bill C-5, which was designed to reduce the overrepresentation of Black individuals in Canadian prisons, significant challenges remain in its implementation. According to lawyer Fernando Belton, one of the nine members of the committee created by Ottawa to study this issue, the primary obstacles are a lack of data and “bias” among judges during sentencing.

Canada’s Black Justice Strategy was initiated following the death of George Floyd on May 25, 2020, in Minnesota, USA. This strategy was aimed at addressing racism and systemic discrimination against Black people, a situation that has “led to their overrepresentation in the criminal justice system, including as victims of crime as well,” according to the government.

Goals and Current Efforts of the Strategy

The strategy aims to ensure that Black individuals receive equal treatment before the law in Canada. Over the past year, the Department of Justice has tasked a group of experts with analyzing this subject and reporting their findings. The forthcoming report, containing about a hundred recommendations, highlights the critical issue of data collection.

Lawyers Suzanne Taffot and Fernando Belton are the two committee members from Quebec. Belton’s experience with Bill C-5, which was adopted to lower the incarceration rate of Black people in Canadian prisons, has been inconclusive. It should be noted that Bill C-5 provides judges with discretion in sentencing and removes mandatory minimum sentences from the Criminal Code.

Judicial Bias and the Need for Data

A year ago, Belton represented a young man accused of illegal possession of a firearm. The accused, who had four children (two of whom he had sole custody), a stable job, and had “completely changed his life” at the time of the trial, seemed to be “a perfect candidate for the suspended sentence provided for by law,” according to Belton. However, the judge still sentenced him to prison. “It’s certain that the legislative change is good. But when it comes to sentencing, the problem remains the system with judges and their biases,” Belton said in an interview with New Canadian Media (NCM).

The committee has focused on at least five pillars that are social determinants of justice: income, employment, housing, education, and health. These factors interact with the justice system and contribute to overrepresentation, according to Belton.

The Importance of Data Collection

In its final report, the committee emphasizes the lack of data collection by federal, provincial, and municipal authorities, making it difficult to assess the true impact of these measures. Belton explains that despite some positive outcomes, the lack of data means that “there are some that are mixed” as well. Without precise and detailed data on the representation of Black people in prisons, Belton relies on his observations.

“When it comes to sentencing, the general observation or the question we must ask ourselves is: Is the system tougher on Black people?” NCM asked Belton. He responded that “the answer is hard to determine since we don’t have precise and detailed data on the situation.”

Statistics Canada reports that in 2021-2022, Black people represented 9.2% of the overall prison population while comprising about 3.5% of the Canadian population. The majority of Black people incarcerated are young men, primarily aged 18 to 30. According to the Office of the Correctional Investigator of Canada, 54.8% of Black people incarcerated in Canada are in Ontario, 19.2% in Quebec, 13.6% in the Prairies, 7.1% on the West Coast, and 5.3% in the Atlantic region.

The committee’s report urges the Minister of Justice to mandate the collection of statistics on Black people in the prison system. Belton points out that the impactful Armony report on racial profiling in Montreal was successful because the authors had direct access to police data. “I think it’s worth having this data in order to make informed decisions,” Belton said.

Addressing Systemic Racism

“There is a lot of openness to change, but we are in a reality with everyone’s spheres of jurisdiction, which means it will not be easy,” Belton acknowledges. The committee aims to incorporate the element of systemic racism into the administration of justice, which must be considered in future reforms.

Belton argues that his client, who was not granted leniency despite his efforts to turn his life around, experienced systemic racism. “I believe in the notion of a second chance,” he says.

Quebec Liberal MP Emmanuel Dubourg, of Haitian origin, considers Bill C-5 one of Justin Trudeau’s government’s flagship measures for Black Canadians. More than $800 million has been allocated for various programs and investments. These initiatives are being implemented within the framework of the United Nations International Decade for People of African Descent, which calls for action on recognition, justice, and development, ending in December 2024.

By addressing these persistent challenges and ensuring comprehensive data collection, Canada can better understand and mitigate the factors contributing to the overrepresentation of Black individuals in the criminal justice system. Source: New Canadian Media