About twenty years ago, a colleague stood on the south side of Queen Street in downtown Toronto after shopping at The Bay.  He flagged a cab; to be correct, he was trying to flag a cab.  Two or three passed by, ignoring his upraised arm.  Perhaps they were on their way to a call; perhaps they didn’t want to accommodate a Black man.  Born and raised in New York City, he was inured to potential racial inferences; annoyed, resigned, but undaunted, he settled into the back seat of the cab that eventually pulled over.  Just another day in the big city.

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We continue to live with social inequalities and inequities despite grassroot initiatives from individual and community groups in marginalized neighbourhoods, along with charitable and non-profit associations, often supported by socially conscious corporate bodies.  Governments and related agencies voice concerns and legislate and finance programs to mitigate discrimination.  And then of course there is the Charter.

Nonetheless, the scourge of racism persists, and like an iceberg, much of it is disguised and masked below the surface.  Meanwhile, COVID’s impact on minority communities spotlights our failure to remedy the causes of social disparity, while Donald Trump’s “license to hate” emboldens the irrational and often dangerous fringe in the United States and elsewhere.

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Racism and discrimination are endemic in all areas of society.  Relevant to our purpose here, it infects our criminal justice system too, from policing to the courts and through to our prison industry.  For the last 25 years, the Criminal Code [section 718.2(e)] makes it clear that incarceration is a last resort for Indigenous offenders.  Gladue reports, which are a type of pre-sentencing and bail hearing report for Aboriginal offenders, assists the courts when considering sentencing.  All the same, this hasn’t slowed the increase in the number of Indigenous peoples in the prison population, now at 31.5 per cent of all offenders, while our First Nations represent only about 5 per cent of Canada’s population.

Black offenders are caught in this same web.  While section 718.2(e) sets out incarceration as a last resort for Indigenous offenders and does not reference any other racialized group, it does say that judges must consider all available reasonable sentences other than imprisonment for all offenders, given the circumstances and consistent with the harm done.  Nova Scotia’s highest court ruled in August that considerations made specifically for Indigenous offenders must apply to Black offenders.  The reports on Black offenders are known there as an Impact of Race and Culture Assessment (IRCA).  This will soon be copied elsewhere in Canada.  As it is now, 9.5 per cent of federal prisoners are Black, although Black people make up roughly 3.5 per cent of the population.

So, here we are with the best intentions on paper to make the justice system more attuned to realities in the world while in practice we appear to be going backward.  A look at a potential pathway forward next time out.

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Correctional Service of Canada must accept whomever the courts send to it.  Racialized minorities in federal prisons are subject to the same hostility and discriminatory practices they experience in the community.  Worse, a Black or Indigenous inmate is more helpless to respond in the prison environment when they’re up against it.  CSC may have the tools to investigate and reprimand staff and inmates where warranted, but most incidents never come to the attention of any level of CSC management that could intervene if motivated.

There’s a missed opportunity here for Correctional Service of Canada to combat systemic racism, an opportunity it would argue is not available to it.  While CSC is the final repository for the overrepresentation of Black and Indigenous men and women in our criminal justice system, it doesn’t use its voice to stress the posturing of a government that claims leadership for righting society’s wrongs and which are so apparent behind the walls. 

Activism may not be a part of Correctional Service of Canada’s mandate, although the consciences of the people who fill its offices are certainly under assault by social injustices.  CSC is not the only silent public agency of course but its high profile would lend authority in addressing the blight of racism if it chose to speak out.

As noted, a progressive perspective next time.