Challenging Judicial Attitudes to Systemic Racism

As law students, we are party to a legal system that we know disproportionately disadvantages black people. What do we owe a protest movement working to upset this status quo?

According to the latest Annual Report of the Office of the Correctional Investigator, there are 70% more black Canadians in federal prison than there were ten years ago. Black inmates make up 10% of the federal prison population while making up only 3% of the civilian population. And despite representing only 3% of Toronto’s population, black people are involved in 27% of carding incidents; overall, you are three times more likely to be carded if you are a black Torontonian. The obstacles that some Torontonians face for being racialized as black are well documented.

A group that has successfully demanded political action on these issues is the Toronto chapter of Black Lives Matter (BLM). The group has engaged with Ontario Premier Kathleen Wynne and Toronto Mayor John Tory on issues such as overhauling the Special Investigations Unit and eliminating carding. However, BLM has recently come under fire for calling Prime Minister Justin Trudeau a white supremacist.

Many people, including law students, have expressed discomfort with BLM’s choice of language. They argue that the group should not alienate white people if the organization wants to effect change. They argue that Justin Trudeau is not in fact a white supremacist, and that this sort of hyperbole hurts the group’s credibility.

Yet, as BLM later clarified, this criticism misconstrues the definition of white supremacy. In a Facebook post dated 9 February 2017, the group proffered this conception:

White supremacy describes any process or person that works to elevate white people in society above everyone else, therefore believing that non-white people deserve unequal access, differential laws, disenfranchisement, and violence…

White supremacy looks like promising heaven and earth to Indigenous people to get elected, refusing to adopt the policy changes you promised, and then offensively claiming that the most urgent need of Indigenous youth in this country is canoe storage.

White Supremacy looks like refusing to eradicate racist laws like Bill C-51 [and] inaction on a police forces that terrorize Black and Indigenous people…

What this definition makes clear is that the entire legal system is implicated. There is a sense that it is the police and politicians, not lawyers and judges, who are to blame for racial injustice in that system. After all, it is politicians that enact legislation like mandatory minimum sentences that disproportionately affect black communities and police officers that disproportionately card black people in Toronto. Yet, as Professor David Tanovich at Windsor Law has argued in his article “The Charter of Whiteness: 25 Years of Maintaining Racial Injustice in the Canadian Criminal Justice System,” narrow approaches to judicial review have greatly limited Charter litigation on racial discrimination. In several important cases regarding bail, jury selection, and racial profiling, courts refused to adopt racial discrimination arguments when they were advanced.  

Professor Tanovich highlights the case of R v Laws, wherein the defendant argued that the citizenship requirement for jury duty in s. 2 of the Juries Act violated s. 15(1) of the Charter because it disproportionately affected black Canadians. Citizenship requirements for jurors is especially strange given that there is no citizenship requirement for justices of the peace, lawyers, or judges. Nevertheless, the Ontario Court of Appeal rejected this argument because “the inclusion of non-citizens would not materially increase the possibility that a black juror will in fact end up on the jury.”

Another example drawn upon by Professor Tanovich is R v Lines, wherein the trial judge dismissed a motion by the Crown that sought a declaration by the court that s. 15(1) prevented defence counsel from using its peremptory challenges to exclude black jurors. The case centered on a highly charged racial event where a white police officer shot a fleeing black man. The trial judge dismissed the motion because “[i]n a criminal trial the accused is pitted against the state. In my opinion it is fanciful to suggest that in the selection of a jury, he doffs his adversarial role and joins the Crown in some sort of joint and concerted effort to empanel an independent and impartial tribunal.” The defence then used four of its seven peremptory challenges to exclude racialized jurors so that ultimately the jury consisted of eleven white jurors and one Asian juror. The accused was acquitted.

These cases (and many others) demonstrate that the judiciary is often resistant to the idea of systemic racism. As law students, we are taught to learn legal reasoning from reading cases. Thus, we must ask ourselves whether the way we are learning to reason and interpret the law is an inherently narrow approach—one that excludes the possibility of racialized people seeking redress against institutional racism through the legal system.

Which brings us to the question that began this article: what do we, law students who benefit from and maintain a legal system that disproportionately disadvantages black people, owe to Black Lives Matter?

One place we could begin is listening to the grievances of BLM protestors and taking the initiative to educate ourselves on institutional racism in the legal system. Doing so would help individuals that are not part of the movement to understand that when some people of colour reference the word “white,” they are speaking of power structures rather than individuals.

Instead of becoming defensive and feeling attacked, perhaps we should consider how we consume black art as part of our efforts to appear cultured and cool while having little empathy for a black protest movement working to help communities disadvantaged by the legal system we uphold. We fawn over I Am Not Your Negro while neglecting to take heed of civil rights commentator James Baldwin’s belief that “white is a metaphor for power” when BLM explains why they have called Justin Trudeau a white supremacist.

Once again, I have no easy answer. But perhaps it is time to acknowledge that black Canadians are angry for a reason and that, as law students, we have a professional and moral duty to ensure that no part of our legal system is implicated in racial discrimination.