Black communities to help design strategies to combat anti-Black racism in criminal justice system

By Cristin Schmitz

Law360 Canada (February 16, 2023, 1:13 PM EST) -- The Liberal government has appointed a nine-person steering group to forge ahead with its “Black Justice Strategy” aimed at addressing prejudice and discrimination in the criminal justice system, including removing obstacles to Black individuals joining the bar and bench.

At an Ottawa press conference Feb. 15, three federal cabinet ministers announced the names of nine experts in various fields who will develop a framework for consultations led by Black communities across Canada, and who will work with other experts and community leaders to devise “a comprehensive strategy that identifies concrete ways to address both the systemic discrimination and anti-Black racism that exists in Canada’s criminal justice system, as well as actions to reform and modernize the criminal justice system, to ensure that every Canadian has access to fair and just treatment before the law,” a Department of Justice (DOJ) press release states. “This work will ensure that the strategy is grounded in the diverse backgrounds, experiences and regional realities of Black communities across Canada.”

Members of the steering group are: Dr. Akwasi Owusu-Bempah, Zilla Jones, Anthony Morgan, Fernando Belton, Mandela Kuet, Moya Teklu, Sandra Muchekeza, Suzanne Taffot and Vanessa Fells.

Owusu-Bempah, a University of Toronto sociology professor, and Jones, a Winnipeg criminal defence and human rights lawyer, will co-author the steering group’s final report, containing recommendations and an overview of the information gathered in the cross-Canada consultations.

Minister for Women and Gender Equality and Youth Marci Ien

Minister for Women and Gender Equality and Youth Marci Ien

Minister for Women and Gender Equality and Youth Marci Ien, who was joined at the Ottawa press conference by Justice Minister David Lametti and Minister of Housing and Diversity Inclusion, Ahmed Hussen, said the 2020 murder by Minneapolis police of George Floyd was for her “a driver to get involved in politics.”

“At that time I was thinking how could I serve better, what more could I do?” the MP for Toronto Centre told reporters. “For others this was a painful awakening to the realities of systemic racism ... a reality that Black communities across this great country of ours know all too well. When it happened many were quick to point out that it happened outside of our country. But with a simple search online you will see that similar incidents have happened in Canada.”

Ien said that she sees cycles of violence and injustice repeat themselves in her riding. “Families broken apart by the criminal justice system and young people falling victim to their hostile environments,” she explained. “As one local educator said, ‘you see community members, kids going through this all the time, trauma after trauma. It never gets fixed. It never gets to heal properly.’ We also see this in the statistics that show Black people accounted for six per cent of all accused while representing just three per cent of the Canadian population, and are 36 per cent more likely to receive a long term sentence of two years or more.”

Ien said “the grim reality of Black Canadian experiences in the criminal justice system and these stories are the reason moms like me right across the country have to have difficult conversations with their kids — more specifically, our sons.”

Hussen, a Toronto criminal defence and immigration and refugee lawyer before he entered politics, said “living the Black experience in Canada is one thing. Comprehending it and really understanding it is a whole different thing.”

Hussen recalled that when he was growing up in Toronto’s Regent Park he was stopped “many times” by police “and asked at a time when I was just minding my own business — going for a walk, knowing I did nothing wrong and being asked ‘where are you going? What are you doing? What’s in your pocket? Show us your ID.’ ”

“Somehow for some reason I was seen as a threat,” Hussen said. “I can tell you how that makes you feel when that becomes part of almost your daily experience. My experience is one that I know is all too familiar unfortunately for far too many of our fellow citizens. It’s not right and it is not just. Sometimes it leads to tragic consequences,” he said. “Today’s announcement of Canada’s Black justice strategy steering group is an important one because it acknowledges that the lived experiences of so many of our fellow citizens, Black Canadian communities from across the country, are not only valid but real, and it needs to change.”

Zilla Jones

Zilla Jones

Addressing a reporter’s question as to how the Black justice strategy will help get more Black judges on the bench, and what barriers must be removed to ensure that Black lawyers do not face systemic racism in the justice system, Jones said that as a criminal defence counsel, “this topic definitely comes up” among fellow lawyers.

“I know for myself I can feel those barriers like ‘I’ll never be a judge, they’ll never appoint me, I’m too different or too outspoken,’” she remarked. “There are certain perceptions of what a judge is and who a judge is, and I don’t feel I fit that. There’s overcoming that ... sense of not belonging, and not being good enough, or not being ready to be a judge.”

Jones said the appointment process itself can be intimidating. “The application process, from the little I know of it, is intensive and there’s the perception they dig into your life and anything you may have said or done [and] once you’re a judge you’ll be muzzled, and can’t be part of your community anymore and can’t speak out in the way I just did — you’re giving up parts of your life to be a judge and is that what you want?”

Jones said bridge-building to Black members of the legal community would help. “It may be that [the appointment process] is not as intimidating as it sounds, and outreach to lawyers of colour would go a long way in helping remedy that,” she suggested. “I definitely notice in practice that I don’t appear before racialized judges very much in Manitoba. There are a few Indigenous judges, but few and far between. The clients are not seeing judges that look like them, lawyers that look like them, prosecutors that look like them. That contributes to their feeling of alienation which we [jurists] also feel. I hope this strategy will look at ways to fix that.”

Hussen said the problem of too few Black lawyers and judges in Canada “starts earlier” in law schools. “Law schools have to do better in this country,” said the University of Ottawa law graduate who noted that when he was at the law school “that prides itself on social justice” he was one of only two Black students.

“We’ve got to do better,” he urged. “Why are young Black Canadians not applying to law schools in the numbers we would expect? What is it about those institutions that they don’t feel welcome or embraced?” he asked. “We’ve got to look at the entire system, and not just the judiciary, although as a lawyer I can tell you in my previous role practising I would walk into courtrooms where everyone, except the accused and myself, didn’t look like me. What does that do to the psychology of young Black Canadians in this country?”

Hussen advocated “a critical rethink and culture shift in the way we do business in Canada to make sure we incorporate the lives and lived reality and experiences of far too many of our citizens. If we’re not prepared to do that, these systemic disproportional issues will continue to affect us,” he warned.

Lametti told reporters he has been doing a lot of outreach to try to build trust in Black communities and encourage more Black jurists to apply for the federal benches. “I’ve been working at that. It’s taken a while,” he remarked. “It’s starting to bear fruit across Canada, some places better than others.”

He noted that when he started reaching out to racialized jurists he heard “there’s no point in applying, you’ll never appoint me.”

He acknowledged its incumbent on the government to scrutinize its appointment process for systemic discrimination and barriers, remarking that when he spoke with South Asian lawyers soon after he became justice minister in 2019 they explained that because they do a lot of solicitor’s work they do not come into contact with judges. This erected a barrier to the bench because the federal judicial application process at that time required a judge to be named as a reference.

“We’ve changed that [reference requirement] to be a senior member of the bar,” Lametti said. “Are there other instances?” he queried. “People with lived experiences, like Zilla ... working with other experts across the country, are going to be able to identify other barriers that might exist in the nomination process.”

The DOJ’s press release says that Black communities in Canada live with the effects of prejudice, discrimination, and hatred — from unconscious bias to anti-Black hate crimes and violence — which systemic inequalities have resulted in the overrepresentation of Black people in Canada’s criminal justice system, including as victims of crime. In 2020-21 Black adults, who made up approximately four per cent of adults in Canada, were consistently overrepresented in provincial admissions to correctional services (custody and community services) across the reporting jurisdictions of Nova Scotia, Ontario, Alberta, and British Columbia, the DOJ said.

The federal government has committed to improving research and data collection, and addressing mental health challenges, systemic discrimination and the overrepresentation of Black people in the criminal justice system.

“Canada’s Black justice strategy is a historic acknowledgment by the government of Canada that systemic anti-Black racism exists in Canada and that it has poisoned our justice system, negatively impacting the integrity of our communities and the futures of our children,” Jones said in the DOJ’s release. “This initiative aims to give real meaning to the principles of redress and reconciliation by listening to the voices of grassroots Black communities — those most impacted by inequality in the justice system.”

“Canada’s Black justice strategy provides a generational opportunity to promote fairness and justice for Black people in this country,” Owusu-Bempah said. “The strategy will be national in scope, yet attuned to the diversity of our Black populations, and the regional differences that exist in Canada.”

If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at or call 613-820-2794.