3 Overrepresentation: Realities and Causes

Black people in Canada are overrepresented in the criminal justice system as accused and convicted, as well as victims and survivors of crime. Overrepresentation occurs at all stages of the system – policing, courts and corrections – in significant numbers relative to the rest of the Canadian population. For example, in 2022-23 Black individuals accounted for 9 percent of the total federal corrections population,Footnote 17 while representing 4 percent of the total Canadian population.Footnote 18

The following example focuses on just one aspect of criminal behaviour and victimization,Footnote 19 although a very serious one. It demonstrates the overrepresentation of Black individuals as both accused and victims. Black people are overrepresented in terms of being accused of homicide and being victims of homicide. In 2021, 20 percent of all individuals accused of homicide were identified by police as Black. The rate of Black people accused of homicide was almost six times higher than the rate for non-racialized people (8.17 accused per 100,000 compared with 1.43 per 100,000). Homicide victim rates were also comparatively higher according to 2021 data. The rate of homicide victims identified as Black was four times higher than the rate for non-racialized people (7.72 victims per 100,000 compared with 1.81 per 100,000).Footnote 20 The story behind these numbers is complex and is laid out below.

Why are Black people so vastly overrepresented in the justice system? First, it is essential to recognize that Black people are not more predisposed to criminal activity than any other group of people, racialized or non-racialized. Yet, as Maynard points out, “The Canadian population continues to associate race – and Blackness in particular – with criminality.”Footnote 21 This association is a legacy of anti-Black racism and discrimination from even before the time of the Trans-Atlantic slave trade, as described in the next section.

Experts maintain there are certain broadly defined factors that in combination over many years have affected the involvement of Black people in the criminal justice system. As Owusu-Bempah and Jones (2023) explain,

The social factors that contribute to Black experiences with the criminal justice system can be described as the “determinants of justice.” The social determinants of justice include income, employment, stable housing, education, and health. Where data are available, research demonstrates that Black people in Canada fare poorly across these dimensions, with lower-than-average incomes, higher rates of unemployment, decreased access to secure and stable housing, poorer educational outcomes in Canadian schools, and poorer health and mental health outcomes.Footnote 22

The authors go on to say the following:

Anti-Black racism and systemic discrimination are often cited as a driver of these negative outcomes. Challenges related to immigration and settlement may also exacerbate the problems faced by Black people across the areas identified as social determinants of justice. Importantly, inequities in the criminal justice system, including the over-criminalization and over-incarceration of Black people, can further entrench the broader social inequities that make up the social determinants of justice.Footnote 23

The following sections of this report refer to the social determinants of justice noted above. However, the section immediately following explains the beginnings of overt anti-Black racism and discrimination in Canada.

3.1 Colonialism and Slavery: Anti-Black Racism

We cannot understand the present until we know the past. Unfortunately, we are still not adequately understanding the past or the present for Black people and their communities and we are often repeating the mistakes of history. Colonialism and the practice of slavery have had significant impacts that continue to be felt today. While the face of colonialism has changed over time from the blatant policies of slavery to other forms of discrimination and segregation, the fact that our government systems were created at a time when these practices existed, and so encompass the same attitudes, means that Black people continue to experience marginalization and justice system overrepresentation that must be addressed. According to three scholars providing written evidence for the Ontario Court of Appeal in the case of a young Black man,

The present circumstances of Black Canadians have deep historical roots. The institutions of slavery and of legalized segregation in Canada formed the basis for Black Canadians’ initial relationship with the state and its people. While slavery and segregation served to underpin early economic and political structures, the ideas and assumptions on which they were based shaped the nature of social relations.Footnote 24

The practice of slavery was common in North America from the time of its initial settlement in the 17th and 18th centuries. Enslaved people, who were African and Indigenous, were legally considered chattel, owned and every aspect of their lives controlled by their owners with no human or legal rights. While most enslaved Black people at the time came originally from Africa, many arrived via Europe with their settler owners. Others were bought by settlers from slave traders from Britain and other European countries. The latter half of the 18th century saw slavery of Black people beginning to decline in British North America with freedom offered to some under certain conditions, such as fighting for the British during the American War of Independence. However, similar change did not occur in the United States. Many enslaved people managed to make their way to Canada, most famously 30,000 Black people via the Underground Railroad between 1800 and 1865. The abolitionist movement gained strength in Britain and British North America and in 1833 slavery was abolished in what would become Canada with the Act on the Abolition of Slavery in the British Empire. Even then, however, former slaves in Canada were forced to work for their former masters for free for several more years as restitution.

Yet while legal change occurred, the overall mindset of the White majority did not change significantly. Black people continued to be viewed as an inferior race, the same belief that had been used to justify and maintain Black slavery for centuries. While slavery became illegal, Black people were still commonly seen through a racist lens, deemed inferior and now dangerous in their limited freedom. As such, Black people remained subject to discriminatory and segregationist attitudes and policies at official and unofficial levels.Footnote 25 In 1910, for example, as an early case of systemic discrimination, the Immigration Act targeted Black immigrants who were arbitrarily declared “unsuited to the climate or requirements of Canada,” thereby blocking entry to most Black immigrants, many of whom were coming from the United States.

An example of discrimination in the form of segregation occurred in 1946 when Viola Desmond, a Halifax businesswoman, was arrested for refusing to move from her seat in the “whites-only” section of a movie theatre. Only in 2010 did the Government of Nova Scotia issue an apology and a posthumous pardon for Viola Desmond.Footnote 26

3.2 Housing and Community

At the community level, social and economic marginalization of Black people has created disproportionate negative outcomes in a range of areas. Anti-Black racism historically resulted in the congregation of Black people in low-income neighbourhoods, which then provided a convenient way for government, business and the White community to ignore their forced poverty and to exploit the community for cheap labour by denying educational and skilled work opportunities. Even now, once communities become well-established, the land is often deemed valuable and suitable for redevelopment. Communities are then dismantled, and residents are displaced with no choice but to leave.

Africville is an example.Footnote 27 In the 18th century, hundreds of Black slaves lived in Nova Scotia, with more arriving during the American Revolution and serving wealthy British Loyalists. Subsequently, the Underground Railroad led many Black people from the United States to Nova Scotia. Thousands of enslaved Black people, and to a lesser extent freed slaves, populated Nova Scotia in the 19th century.Footnote 28 As they were denied housing in other areas, many were forced to settle in a part of Halifax that came to be known as Africville. Residents of Africville were largely restricted to their neighbourhood and lived in poverty. They suffered anti-Black racism and discrimination in terms of education, employment, and mismanagement by city authorities. The residents of Africville paid taxes to the city but did not receive services such as running water, electricity, paved roads, streetlamps, garbage removal, or police protection.Footnote 29 Black people continued to be seen as inferior and undeserving of a place in mainstream society except in their roles as slaves and servants, freed or not. Such attitudes continued well into the 20th century. In 1962, Africville was demolished by the City of Halifax to accommodate urban renewal. The plan was to make way for reconstruction in this area of the city that would then cater to relatively wealthy businesses and housing.

Black residents of Africville dispersed and settled where they could, hoping to make a living. This kind of cycle occurred not only in Halifax, but in other areas of Canada where Black people settled in the 18th and 19th centuries: southern Ontario, Alberta, and lower mainland British Columbia. The historical record is consistent – first neglect, then displacement.

The cycle of neglect and displacement continues in Canadian cities. Two contemporary examples are Regent Park in downtown Toronto and Hogan’s Alley in Vancouver.

The Regent Park neighbourhood has been home to newcomers and culturally diverse populations since the late 1800s. While residents have been economically marginalized and dependent on government subsidization for their housing, a strong sense of community has existed. Unfortunately, crime rates, particularly gang-related violent crime, became higher than in the rest of the city,Footnote 30 which made Regent Park a concern for Toronto.

In 2006 the city initiated a redevelopment project that was to be unique in urban planning internationally. Regent Park was redesigned as a mix of public housing and upscale condos and townhouses with opportunities for the entire community to interact and make community decisions together. The redevelopment project took several years to reach a point of viability, and, in the meantime, lower-income families had no choice but to move. They were told they could return to new accommodations when renewal was complete. In fact, the wait was long enough that many families chose to stay away from their old Regent Park neighbourhood because they had settled in low-income areas elsewhere in Toronto. In addition, only twenty-seven percent of the re-built housing stock was subsidized, significantly less than had been intended. This resulted in many fewer low-income families returning than originally planned.Footnote 31 Those who did return felt stigmatized as Black people living in subsidized housing next door to affluent (mostly White) people in relatively expensive housing. These changes disrupted the previous cultural make-up of Regent Park, as well as the close inter-cultural relationships that had developed over many years.Footnote 32

Hogan’s Alley, a largely Black historic neighbourhood in Vancouver, is another example of a community whose homes were razed, in this case to make way for the Georgia Viaduct (part of a highway system) in 1970.

With regard to current housing conditions, the external Steering Group for Canada’s Black Justice Strategy identified the ongoing lack of access to secure and stable housing as an important social determinant of justice. They explain that anti-Black racism and systemic discrimination can be seen as drivers of problems such as housing instability and, ultimately, to involvement with the criminal justice system.Footnote 33 Canada’s National Housing Strategy Act (2019) declared that “the right to adequate housing is a fundamental human right affirmed in international law.” While a housing shortage is currently a serious problem in Canada generally, certain populations, including Black populations, are at a greater disadvantage than the overall population.Footnote 34

The Canadian Housing Survey, 2018 provides data on Black housing compared to the total population, clearly demonstrating that Black people are at a disadvantage in accessing secure and stable housing.Footnote 35 According to the survey, Black people were more likely to live in rented dwellings (52 percent) than the total population (27 percent) and were also more likely to live in subsidized rental housing (14 percent, compared with 3 percent for the total population). Black people were also much less likely to live in an owner-occupied dwelling without a mortgage, and less likely to live in a dwelling suitable for the size and composition of the household, according to the National Occupancy Standard.Footnote 36 Further, with respect to “core housing need,” the survey found the following:

A household is said to be in core housing need if their dwelling falls below at least one of the affordability, suitability, or condition of dwelling standards, and would have to spend 30 percent or more of their total before-tax income to pay the median rent of alternative local housing that is acceptable (meets all three housing standards). According to the 2018 CHS, 15 percent of Black people were living in households in core housing need. This is higher than the 9 percent of the total population in core housing need.

Negative impacts on health and mental health and the intergenerational stress arising from neighbourhood displacement, housing insecurity and poverty are common among Black families.Footnote 37 For Black people facing these conditions, any involvement in the criminal justice system can reinforce stereotypes, acting as justification for continued discrimination and segregation by the non-racialized public and the justice system. Again, this perception continues to be based on long-standing assumptions that Black people are more prone to criminal activity than other racial groups, especially White people. This is particularly difficult for Black youth as it is young people who most commonly face the challenges of intergenerational stress and mental health problems, as discussed below.

3.3 Socio-Economic Marginalization

The marginalization of Black people in Canada has a long history rooted in anti-Black racism and systemic discrimination that has resulted in social and economic restrictions. Barriers to meaningful employment and education are among the factors that have impeded Black people’s engagement in mainstream Canadian society and economic well-being.

Analysis of data from the 2021 Census shows “the socioeconomic conditions of this population, including rates of employment and earnings, are generally lower than the non-Indigenous, non-racialized population. This is true even after accounting for differences in age and education.”Footnote 38

Unemployment rates are higher for Black men (25-64 years old), Black women (25-64 years old), and Black youth (15-24 years) than rates for the same categories in the overall population. In 2023, Black men experienced an unemployment rate of 9.2 percent, compared to 5.0 percent of men in the overall population. The unemployment rate for Black women was 7.8 percent compared to 4.7 percent for women in the overall population. For Black youth unemployment was at a rate of 17.5 percent compared to 11.3 percent for youth in the overall population.Footnote 39Footnote 40 A study based on the 2016 Census concluded that of thirteen ethnic categories measured for unemployment, Black people had the second highest rate, behind only the Arab ethnic group.Footnote 41

Even for those with higher levels of education, these gaps persist. In 2020, the median income of Black individuals with a bachelor’s degree or higher was $50,000, compared to $70,000 for the non-racialized population. Canadian-born Black people generally work in lower-level occupations relative to their education and are less likely to have full-time, full-year work, compared to the non-racialized third-generation population (all parents born in Canada).Footnote 42

Analysis of 2021 Census data indicates the following:

Black populations faced additional wage gaps that could not be attributed to differences in occupational group, weeks worked, part-time or full-time work, education, language, region of Canada or family structure. These wage gaps could relate to unobserved factors, which may include differences in pay within the same occupation, job tenure, specific occupation and access to promotions.

For Black men, these unexplained differences were the largest factor in earnings differences compared with the non-racialized third-generation-or-more population. The gaps ranged from $6,500 among African-origin Black men to more than $8,000 among Caribbean- and Canadian-origin Black men. Among Black women, they ranged from $2,900 among African-origin Black women to $4,100 among Caribbean-origin Black women.Footnote 43

It is possible that the differences between Black and non-racialized employment rates and wages may be due at least partly to a built-in bias among employers. The John Howard Society of Ontario notes the following:

In a 2017 study conducted in Toronto of individuals applying to the same jobs with the same qualifications, white applicants with a criminal record had a call back rate of 18.8% which was more than the call back rate for Black applicants without a criminal record (10.9%) and significantly larger than the call back rate for Black applicants with a criminal record (1.6%).Footnote 44

If this bias is consistent, it is another example of the long-standing anti-Black racism inherent in Canadian society.

Discrimination in education is another significant factor in creating socio-economic marginalization. Segregation in educational institutions has existed for many years. Ontario, Quebec and Nova Scotia had formally segregated public schools and only with the passing of the Canadian Human Rights Act in 1977 did institutional change begin. However, change was slow in some areas. Ontario’s last segregated school, in Colchester, closed in 1965Footnote 45 and the last segregated school in Canada, near Halifax, finally closed in 1983.Footnote 46 Yet educational segregation was common, although less formalized in other Canadian jurisdictions. According to a report in The Aeolian,

Ontario and Nova Scotia were the only provinces to legislate racially segregated schools. However, in other provinces including Alberta, Saskatchewan, New Brunswick and Prince Edward Island, it was acceptable practice for white [sic] residents to deny Black families access to local public schools. Intimidation was used to discourage Black parents from sending their children to local public schools, or to force Black families to establish their own schools.Footnote 47

The Aeolian also notes that post-secondary institutions enforced segregation into the twentieth century until as recently as the 1960s. McGill University, Queen’s University and the University of Toronto would not admit Black applicants to their medical schools, even though the applicants were academically qualified. One reason given was that patients would not want a Black doctor administering to them – a clear indication of anti-Black racism and discrimination.Footnote 48

Discrimination and segregation have been and continue to be practiced with regard to housing, employment and education, as outlined above. Further examples of anti-Black racism and discrimination are discussed below.

3.4 Poverty

Socio-economic marginalization leads to poverty at a certain point. According to the Government of Canada, poverty is “the condition of a person who is deprived of the resources, means, choices and power necessary to acquire and maintain a basic level of living standards and to facilitate integration and participation in society.”Footnote 49 In 2022, 48 percent of Black people aged 15 years and over said they experienced difficulty in meeting household financial needs, again second only to the Arab population among all racialized groups.Footnote 50

The Canadian Poverty Institute has outlined the scale of poverty for Black people in Canada:

Across Canada, Black Canadians are disproportionately represented among the population that lives with low-income. According to the 2021 Census, 12.4% of Black Canadians were living in poor households, compared to just 8.1% of the total population.Footnote 51

It is important to understand that poverty is not simply an economic condition. Again, according to the Canadian Poverty Institute,

…a consideration of poverty among Black Canadians must consider more than just income. Lack of power and access to opportunities are just as much an aspect of poverty as lack of income. Persistent racism, discrimination and stereotypes that result in elevated rates of income poverty for some, create conditions of social and spiritual poverty for a much broader swath of the racialized population.Footnote 52

Socio-economic marginalization is common in Canada among both racialized and non-racialized populations. However, Canada’s Black population endures the conditions linked to poverty to a greater degree than the White population and other racialized groups. This reality is, in large part, a holdover from earlier days of anti-Black racism, discrimination and segregation.

3.5 Challenges for Black Youth

In a consultation process held in six Canadian cities in 2020-2021, participants identified several factors that contribute to the likelihood of Black youth coming into contact with the criminal justice system. “These included, among others, over-policing, poverty, exclusion from schooling, barriers to finding employment, and obstacles faced by newcomers attempting to integrate into Canadian society.”Footnote 53 Additional factors are shown to have negative impacts on Black youth: overrepresentation of Black children in child welfare cases, relatively high rates of mental illness among Black youth, and the pressure on young Black men to present a “tough” persona, which can also increase their chances of coming into contact with police.Footnote 54

Education is closely linked to employment and wage earning and continues to be a challenge for many Black youth. While anti-Black interactions with teachers and school officials are not as overt as they were during the period of segregation, discrimination still occurs at the systemic level. That discrimination continues to be rooted in anti-Black bias. It is common for Black students to be directed away from academic to vocational programs, regardless of a student’s potential. This kind of streaming assumes that Black youth are incapable academically and are generally undisciplined. Owusu-Bempah and Jeffers argue that negative labelling and discriminatory treatment lead to exclusion. They say, “This exclusion can occur when youth are treated as unwanted outsiders in school.”Footnote 55 This often in turn leads to disinterest in school, skipping classes or leaving school altogether. With a graduation certificate of lesser value, or with none at all, finding employment is significantly more difficult for many Black youth compared to White youth. This occurs even when credentials are at the same level. In the end, and in desperation, this path can force Black youth toward illegal income sources. The result is often the “school-to-prison pipeline.”Footnote 56

Black children, often from a very young age, are involved at significantly higher levels with Children’s Aid Societies than White children. Again, this is in part due to the socio-economic marginalization of individual families and sometimes to the break-up of families caused by the same stresses of marginalization, as well as to systemic racial bias.Footnote 57Footnote 58 The removal of children from their homes is often done unnecessarily without recognition of situational or cultural differences. Black children in difficult family circumstances often receive physical and emotional support from other family members, friends or neighbours.Footnote 59 However, child removal decisions can be influenced by racial biases held by officials and the system as a whole and culture-oriented supports are not considered. According to Owusu-Bempah, Sibblis and James, “disproportionate levels of contact with the system, combined with the absence of culturally appropriate practices, increases the criminogenic effect of care for African Canadians.”Footnote 60 In other words, exposure to a child welfare system can contribute to the likelihood of a Black child – sooner or later – becoming involved with the criminal justice system.Footnote 61

3.6 Mental Health

Related to all the above manifestations of socio-economic marginalization is the disproportionate extent of mental health problems among Black adults and youth. The Centre for Addiction and Mental Health (CAMH) found that “95.1% of Black people in Canada are subject to at least one traumatic event during their lifetime.”Footnote 62

A Statistics Canada survey in 2019 found that “nearly half (46%) of Black people aged 15 years and older reported experiencing at least one form of discrimination in the past 5 years, compared to 16% of the non-Indigenous, non-visible minority population.”Footnote 63 Further, the same study showed “that a considerably higher proportion of Black people experienced discrimination in 2019 than in 2014 (46% versus 28%).”Footnote 64

CAMH (quoting Cenat et al, 2021) goes on to say,

Many studies over the years have reports that everyday racial discrimination is linked with mental health problems…. For instance, those experiencing a high level of racial discrimination were more than 36 times more likely to have severe depressive symptoms when compared to those reporting a low level of discrimination.Footnote 65

Further, CAMH points out that, “According to a 2020 Statistics Canada survey, 32% of individuals from Black communities compared to 24% White counterparts reported to experience symptoms of anxiety (Mental Health Commission of Canada, 2021).”Footnote 66 The authors note that oppression, colonialism, racism, and segregation contribute to mental health inequity for Black people today.

Owusu-Bempah and Jones reference an inquiry into police street checks in Halifax, as follows:

Research… has linked concentrated police stop and search activities in neighborhoods to increased psychological distress and mental health issues in residents, especially men. These effects manifest as heightened nervousness, feelings of worthlessness, and severe psychological distress.Footnote 67

Mental stress resulting from police discrimination and negative interactions is a serious concern that can have far-reaching effects, including distrust of police and the justice system more broadly.Footnote 68