This material was assembled by Joanna Kerr for the Canadian Foundation for Drug Policy.

Report of the Commission on Systemic Racism in the Ontario Criminal Justice System

The Canadian Foundation for Drug Policy has not had the opportunity to review the studies and claims made in this report. We therefore are not in a position to support or criticize the findings of the Report. The reader should read the Report with this in mind.

First, we offer excerpts from two Canadian newspapers and one American newspaper about the Report.

"Color of justice,"

The Citizen [Ottawa] Editorials, January 18, 1995

    . . . There are numerous and complex reasons why a greater proportion of blacks than whites, for example, get charged with drug trafficking. But there seems to be only one explanation for the fact that blacks, once charged, are 27 times more likely to be kept in jail awaiting trial than are whites.

    . . . The report has almost nothing in it that fits neatly into the Harris government's Common Sense Revolution. It goes against the political grain of the Tory government by suggesting that police need more checks and that the so-called war on drugs needs rethinking. And the commission's birth under the NDP government won't endear the report to the Harris cabinet.

    Blacks stand a shockingly disproportionate chance of being charged and imprisoned in Ontario compared with whites, says the long-awaited report of a commission on racism in the province's justice system.

    . . . Blacks were 27 times more likely to be imprisoned before their trials on charges of drug trafficking and importing charges and about 20 times as likely to be imprisoned for drug possession charges.

    . . . Noting that blacks make up 3 per cent of the provincial population but 15 per cent of prison admissions, the commission points an accusatory finger at the much-ballyhooed `war on drugs.'

    Canada's drug combat strategy has come to emphasize hunting down small-time users and dealers - often found in the black community - rather than pursuing drug overlords or pursuing the prevention and treatment of drug abuse, the commission says.

    It says police and prosecutors know full well it pays public relations dividends to pursue the small-fry rather than the more elusive dealers at the top of the drug pyramid. Yet this approach is harmful. Absurd and intolerable, it adds.

    `Enforcement against street dealers and couriers is much easier brings quick success in the form of convictions and imprisonment,' the report says. `It is a waste of resources. Many police officers, lawyers and judges - including some we consulted - acknowledge this. They know that effective drug policies emphasize treatment and prevention of abuse.'

    The trouble with the 445-page report is not that it is too far-reaching, too ambitious or too radical. A little deviation from an overused path of inquiry might have yielded interesting results. Instead, it stuck to the old road, the straightest line to answers shop-worn and evasive. This task force's sins are primarily those of omission, of failing to ask the right questions. What results is a clarion call to complacency.

    . . . Instead, we are given a litany of numeric discrepancies and anomalies, often based on incomplete data, usually proving less than the commission claims.

. . .

    In the news coverage, you may have heard the numbers from this study: 57 per cent of the whites convicted of the same crimes and with the same criminal history were sent to prison, as opposed to 69 per cent of the blacks. Problem: the stats themselves are deeply flawed.

    About a third of the men in this study had been convicted of a drug offence, and it is in this part of the sample that the trouble lies. More than three times as many black as white men had been convicted of drug trafficking as opposed to drug possession. As the commission concedes, `since trafficking offences are more serious than simple possession, this difference in offences could explain some of the disparity in sentencing outcomes." It certainly could.

    Since the sample of drug offenders is a case of comparing apples and oranges, why not simply throw it out and complete the survey without the drug offenders? The commission still had a data base of men of both races convicted of four other serious crimes. If you take drug offenders out of the sample - as this study did not do - you find something unexpected. The imprisonment rate for men with comparable criminal records convicted of sexual assault, assault, bail violations and robbery is 67 per cent for whites and 71 per cent for blacks. A difference of four percentage points: statistically insignificant in a sample this small. In other words, the Commission on Systemic Racism in the Ontario Criminal Justice System appears to have performed the unexpected feat of proving that a convicted black man is no more likely to be sent to prison than a white man. Surprise indeed.

    The report holds more examples of this sort of thing, statistics that cannot carry the weight of interpretation that is laid on them. There are many fine recommendations in this report, among them the oft-repeated and eminently sensible request that alternatives to prison be used where possible, regardless of race, particularly in cases not involving violence. Non-violent offenders make up 80 per

This material was assembled by Joanna Kerr for the Canadian Foundation for Drug Policy.

Report of the Commission on Systemic Racism in the Ontario Criminal Justice System

The Canadian Foundation for Drug Policy has not had the opportunity to review the studies and claims made in this report. We therefore are not in a position to support or criticize the findings of the Report. The reader should read the Report with this in mind.

First, we offer excerpts from two Canadian newspapers and one American newspaper about the Report.

"Color of justice,"

The Citizen [Ottawa] Editorials, January 18, 1995

    . . . There are numerous and complex reasons why a greater proportion of blacks than whites, for example, get charged with drug trafficking. But there seems to be only one explanation for the fact that blacks, once charged, are 27 times more likely to be kept in jail awaiting trial than are whites.

    . . . The report has almost nothing in it that fits neatly into the Harris government's Common Sense Revolution. It goes against the political grain of the Tory government by suggesting that police need more checks and that the so-called war on drugs needs rethinking. And the commission's birth under the NDP government won't endear the report to the Harris cabinet.

    Blacks stand a shockingly disproportionate chance of being charged and imprisoned in Ontario compared with whites, says the long-awaited report of a commission on racism in the province's justice system.

    . . . Blacks were 27 times more likely to be imprisoned before their trials on charges of drug trafficking and importing charges and about 20 times as likely to be imprisoned for drug possession charges.

    . . . Noting that blacks make up 3 per cent of the provincial population but 15 per cent of prison admissions, the commission points an accusatory finger at the much-ballyhooed `war on drugs.'

    Canada's drug combat strategy has come to emphasize hunting down small-time users and dealers - often found in the black community - rather than pursuing drug overlords or pursuing the prevention and treatment of drug abuse, the commission says.

    It says police and prosecutors know full well it pays public relations dividends to pursue the small-fry rather than the more elusive dealers at the top of the drug pyramid. Yet this approach is harmful. Absurd and intolerable, it adds.

    `Enforcement against street dealers and couriers is much easier brings quick success in the form of convictions and imprisonment,' the report says. `It is a waste of resources. Many police officers, lawyers and judges - including some we consulted - acknowledge this. They know that effective drug policies emphasize treatment and prevention of abuse.'

    The trouble with the 445-page report is not that it is too far-reaching, too ambitious or too radical. A little deviation from an overused path of inquiry might have yielded interesting results. Instead, it stuck to the old road, the straightest line to answers shop-worn and evasive. This task force's sins are primarily those of omission, of failing to ask the right questions. What results is a clarion call to complacency.

    . . . Instead, we are given a litany of numeric discrepancies and anomalies, often based on incomplete data, usually proving less than the commission claims.

. . .

    In the news coverage, you may have heard the numbers from this study: 57 per cent of the whites convicted of the same crimes and with the same criminal history were sent to prison, as opposed to 69 per cent of the blacks. Problem: the stats themselves are deeply flawed.

    About a third of the men in this study had been convicted of a drug offence, and it is in this part of the sample that the trouble lies. More than three times as many black as white men had been convicted of drug trafficking as opposed to drug possession. As the commission concedes, `since trafficking offences are more serious than simple possession, this difference in offences could explain some of the disparity in sentencing outcomes." It certainly could.

    Since the sample of drug offenders is a case of comparing apples and oranges, why not simply throw it out and complete the survey without the drug offenders? The commission still had a data base of men of both races convicted of four other serious crimes. If you take drug offenders out of the sample - as this study did not do - you find something unexpected. The imprisonment rate for men with comparable criminal records convicted of sexual assault, assault, bail violations and robbery is 67 per cent for whites and 71 per cent for blacks. A difference of four percentage points: statistically insignificant in a sample this small. In other words, the Commission on Systemic Racism in the Ontario Criminal Justice System appears to have performed the unexpected feat of proving that a convicted black man is no more likely to be sent to prison than a white man. Surprise indeed.

    The report holds more examples of this sort of thing, statistics that cannot carry the weight of interpretation that is laid on them. There are many fine recommendations in this report, among them the oft-repeated and eminently sensible request that alternatives to prison be used where possible, regardless of race, particularly in cases not involving violence. Non-violent offenders make up 80 per cent of the provincial prison population. It also recommends greater sensitivity at bail hearings and trials to those who neither speak English nor understand Canadian courtroom traditions. It calls for greater emphasis on community policing. It properly challenges where racism where racism actually occurs.

Toronto, Jan. 24

   . . . Now, in an ambitious study, a commission of Ontario jurists and civic officials has produced statistical evidence to support that belief [of pervasive racism in the criminal justice system.

   . . . These figures and mountains of other data collected for three years and published last week in a 445-page report led the six commissioners to conclude that "systemic racism" exists in Ontario criminal justice.

   . . . The study was ordered in 1992 by the provincial government, which feared the spread here of American- style racial violence. Riots involving black youths, angered by the killing of a young black man by the police, had just occurred on Toronto's Yonge Street. They followed news reports of the Los Angeles riots after the acquittal of police officers in the beating of Rodney King.

   At the time, socialist New Democrats controlled the Ontario government: Last year, power shifted to the Progressive Conservatives. Although some blacks said they expected the report to be buried by the new government, which sets laws and order among its top priorities, the new Attorney General, Charles Harnick, issued a statement promising a careful review of the findings.

   A spokesman for the Ontario Association of Chiefs of Police said his organization would also examine "the full statistical background and analysis leading to the conclusions" of the report.

   Many blacks applauded the findings. "This is the first time in a very clear way there has been an acknowledgment by any organized body of government in Canada that there is differential treatment because of race," said Charles Roach, lawyer for the Black Action Defense Committee, a legal aid group for black defendants.

   "Some people say racism is only something that exists south of the border," he said. "This proves the contrary. It is a first step in purging the system of these legally unjustified differentials."

   Ewart Walters, editor of a monthly newsletter, Spectrum, which circulates in Ontario's Carribean community, observed that "black people have nothing to hope for except that they can exist in a just society, and that hope is daily being eroded in Ontario."

   . . . A crackdown on drugs is seen as at least partly responsible for the disproportion. Policing of poor areas in which black people live leads to the arrest of many black suspects. Yet the report notes that law enforcement directed at small-scale traders and couriers has "an insignificant impact on drug use."

   "Many police officers, lawyers and judges - some we consulted - acknowledge this," the report said. "They know that effective drug policies emphasize treatment and prevention of abuse."

   A similar issue has arisen in the United States, where Federal sentencing guidelines call for longer sentences for convictions involving crack cocaine than for offences involving cocaine powder. Many consider such guidelines discriminatory because a higher percentage of crack defendants are black. [our emphasis]

Blacks are in disproportionate numbers in American prisons as well.

Executive Summary

(p. iii) Prison Admissions

    The most dramatic differences in admission rates of white and black adults involve pre-trial imprisonment for highly discretionary charges. In 1992/93 the black pre-trial admission rate for drug trafficking/importing charges was 27 times higher than the white rate; for drug possession charges, the black pre-trial admission rate was 15 times higher, and for obstructing justice charges, the black pre-trial admission rate was 13 times higher.

. . .

(p. vii) Imprisonment after Conviction

    A major study of imprisonment decisions for the same offences indicates that white persons found guilty were less likely than black persons to be sentenced to prison. White people were sentenced more leniently than black people found guilty, even though they were more likely to have a criminal record and to have a more serious record. The differential was most pronounced among those convicted of a drug offence. Within this sub-sample, 55% of black but only 36% of white convicted persons were sentenced to prison.

    Detailed analysis revealed no significant differences in the incidents that led to the charges. Employment status and differences in criminal justice variables such as imprisonment before trial accounted for some of the racial inequality in incarceration rates. But a significant (though small) differential in incarceration rates remains, which is not due to gravity of charge, record, plea, crown election, pre-trial detention, unemployment or other social factor. The most likely explanation for this differential is racial discrimination at sentencing.

Chapter 4 Prison Admissions

(p. 66)

Introduction

    Most people admitted to Ontario prisons are charged with or convicted of non-violent offences. Crimes against property dominate the provincial imprisonment statistics for both pre-trial and sentenced admissions. Drug charges and offences against the administration of justice, such as failure to appear in court and obstructing justice, also produce significant numbers of prisoners.

. . .

.     Judges Lilles and Stuart:

    ` ... The majority of admissions to jail are non-violent offenders who do not need to be incarcerated to protect the public ... A large proportion of persons are incarcerated because there are no appropriate places or programs for them.'

    . . .

Findings about racial inequality in prison admissions

A note of caution

    The Commission urges caution in interpreting data that the Ministry of the Solicitor General and Correctional Services made available to us. For several reasons the numbers presented are, at best, estimates of the racial make-up of Ontario's prison populations. (More detailed information about the methodology and findings of this study are available in our Technical Volume. See Appendix B.)

    . . .

Summary of Findings

    Ontario prison data show that over the six-year period from 1986/87 to 1992/93 -

    . . .

     .     Black admissions to prisons serving the Metro Toronto area for drug trafficking/importing (trafficking/importing is the category the Ministry used in collecting these data, and includes the offence of possession for the purposes of trafficking. To the best of our knowledge, it is not possible to separate the different charges in the data for this category of admissions) charges increased by several thousand percent. White admissions to the same prisons for drug trafficking/importing also increased, in some prisons by large percentages, but nowhere near as much as the growth in black admissions.

. . .

    Data from 1992/93 on the offences leading to admission to prison show that -

     .     Persons described as black are most over-represented among prisoners charged with drug offences, obstructing justice and weapons possession.

. . .

Trends in black and white admissions on drug trafficking/importing charges

The reported increases in black and white admissions cover a range of charges, but one category dominates: drug trafficking/importing. (This category, used by the Ministry, does not separate importing from trafficking charges. Other research that we conducted, however, indicates that charges of trafficking and possession for the purposes of trafficking are far more common against men than importing charges. Women are more likely to be charged with importing drugs.) Changes in black and white admissions for these charges at four of the Toronto-area men's prisons and at Vanier Centre for Women are summarized in Figure 4-4. Increases from 1986/87 to 1992/93 in the numbers of white prisoners admitted for drug trafficking/importing ranged from 25 % at Maplehurst to 667 % at Vanier. These increases in white admissions are large at most of the prisons but appear minor when compared with changes in admissions of black prisoners on the same charges. The Toronto Jail, with a 790% increase in the number of black admissions, showed the smallest change. At Metro East the increase is 2,914%, at Maplehurst 3,300%, and at Metro West (men) 3,890%. The biggest increase is at Vanier, which in 1992/93 admitted 5,200% more black women convicted of trafficking/importing drugs than in 1986/87. (In part, the percentage increase is in the thousands because of the small numbers involved. In 1986/87, only one     black woman was admitted to Vanier Centre for Women on this charge. In 1992/93, 53 black women were admitted for drug trafficking/importing. More details about the number of admissions are in the Technical Volume. See Appendix B.

These changes are reflected in the proportions of black and white prisoners admitted on drug trafficking/importing charges in each prison. The data show that in all five prisons most 1986/87 trafficking/importing admissions were white, but by 1992/93 the majority are black.

         Toronto Jail: 31 % of drug trafficking/importing admissions in 1986/87 were black and 68% white. In 1992/93, 62% of admissions in this category are black and 30% white (Figure 4-5a).

         Metropolitan Toronto West Detention Centre (men): 11 % of drug trafficking/importing admissions in 1986/87 were black and 86% white. In 1992/93, 56% of admissions in this category are black and 42% white (Figure 4-5b).

Metropolitan Toronto East Detention Centre: 13% of drug trafficking/importing admissions in 1986/87 were black and 86% white. In 1992/93, 56% of admissions in this category are black and 39% white (Figure 4-5c).

(p.81)

            ;          Maplehurst Correctional Centre: 7% of drug trafficking/importing admissions in 1986/87 were black and 93% white. In 1992/93, 68% of these admissions are black and 30% white (Figure 4-5d).

            ;         Vanier Centre for Women: 14% of drug trafficking/importing admissions in 1986/87 were black and 86% white. In 1992/93, 53% of admissions are black and 47% white (Figure 4-5e).

Two general factors are evident: expansion of prisons and changes in criminal justice practices. During the 1980s, the province embarked on a large prison expansion program. By 1992, Ontario's prison capacity was 30% higher than in 1985. Meanwhile, Quebec and British Columbia maintained their prison capacities at 1985 levels. In 1992, Ontario's officially recorded crime rate was about the same as Quebec's, but the imprisonment rate was one-third higher. Between 1985 and 1992, British Columbia experienced a much higher population growth than Ontario and higher crime rates, but in 1992 Ontario's imprisonment rate was one-third higher.

Expansion of Ontario's prisons is clearly associated with overall increases in prison admissions. Why, though, have admissions of black women and men grown so much faster than admissions of white women and men? At least part of the answer is that the so-called "war on drugs" has different impacts on white and black people.

From the mid-1980s, Canada has followed the United States in emphasizing law enforcement as a primary strategy to control drug use. (In 1987, the federal government established "Canada's Drug Strategy," which planned to spend some $210 million in new funds on the entire field of substance abuse over five years (See Health and Welfare Canada, Canada's Drug Strategy: Phase II (Ottawa: Supply and Services Canada, 1992)). Seventy percent of this money was allocated to measures to reduce the demand for drugs, such as education, treatment and rehabilitation. Recent research indicates, however, that the traditional prohibition approach continued to dominate Canadian drug policy over that period: Patricia G. Erickson, "Recent Trends in Canadian Drug Policy: The Decline and Resurgence of Prohibitionism" 121 Daedalus - Journal of the American Arts and Sciences (1992), p. 239; Benedikt Fischer, "'Maps' and 'Moves...'" (1994) 5 International Journal of Drug Policy 70.). As in the U.S., one strategy has been to attempt to reduce the supply of drugs by convicting and imprisoning large numbers of suppliers and users. Intensive police operations attack street-level trading and the couriers who bring drugs across Canada's borders to distributors. Such policing is supported by vigorous prosecution, and efforts to imprison convicted offenders no matter how small the amount of drugs involved. (For example, the Ontario Court of Appeal has generally supported significant prison terms for trafficking, in the absence of extenuating circumstances. See the review of Canadian case law in Clayton C. Ruby, Sentencing , fourth edition (Toronto: Butterworths, 1994), pp. 683-713.)

This emphasis on convictions and imprisonment also serves other important purposes. Convictions and prison sentences can be counted and publicized to reassure the public responding to concerns about drug use and drug dealing. But because of the organization of drug distribution, this response tends to focus on relatively minor offenders and offences.

    Drug distribution is organized in a classic pyramid fashion. A few individuals at the top invest heavily to protect themselves against exposure. At the bottom are street dealers and couriers, who are easy to recruit and replace. Though law enforcement against those at the top of the pyramid may greatly reduce the supply of certain drugs, this is costly, time-consuming, difficult and seldom successful. Enforcement against street dealers and couriers is much easier and brings quick success in the form of convictions and imprisonment. But since individual street dealers and couriers typically handle relatively small quantities of drugs and are easily replaced, enforcement directed at them may have little or no effect on the supply of drugs. (Even enforcement against persons at the top of the pyramid may be remarkably unsuccessful in achieving any permanent reduction in the availability of certain drugs.)

    How does this "war on drugs" produce racial inequalities in imprisonment? Neither patterns of drug use nor control over drug supply explain our findings. No evidence shows that black people are more likely to use drugs than others or that they are overrepresented among those who profit most from drug use. Events of the last few years do show, however, that intensive policing of low-income areas in which black people live produces arrests of a large and disproportionate number of black male street dealers. Similarly, intensive policing of airline travellers produces arrests of a smaller, but still disproportionate, number of black female couriers. Once the police have done this work, the practices and decisions of crown prosecutors, justices of the peace and judges operate as a conveyor belt to prison.

The futility of using heavy law enforcement against minor suppliers and couriers to control drug use is well documented. Experts in drug policy are clear: law enforcement directed at small-scale traders and couriers has an insignificant impact on drug use. It is a waste of resources. Many police officers, lawyers and some judges (including some we consulted) acknowledge this. ( A recent study by the Addiction Research Foundation documents considerable concern among some judges and lawyers about the futility of such law enforcement. Patricia G. Erickson and J. Cohen, Alcohol and Other Drugs in the Criminal Justice System: Perceptions of Justice System Personnel (preliminary report) (Toronto: Addiction Research Foundation, forthcoming)). They know that effective drug policies emphasize treatment and prevention of abuse. Such strategies focus resources on existing and potential drug users, not petty suppliers. Without a local demand for drugs, street trading would disappear and small-scale couriers would not be recruited.

It is clear from our findings that in Ontario, as in many parts of the United States, one effect of the "war on drugs," intended or not, has been the increase in imprisonment of black people. This is an intolerable consequence of a policy that experts recently described as "mistaken, harmful and at times absurd." We return to the racial inequalities produced by the "war on drugs" in Chapters 5 and 8, where we also show how the exercise of discretion produces disproportionate imprisonment of black people.

The particular strategies selected in the so-called "war on drugs" account for much of the growth of racial inequality in prison admissions between 1986/87 and 1992/93. However, not all of this inequality is due to drug charges. To find out more about the patterns of racial inequality among admissions, the Commission analyzed data for 1992/93, the first year of our mandate, in more detail.

(p.126)Nature of the charge: the special case of drugs

Since this study matches samples of black and white persons charged with the same types of offences, it largely eliminates the significance of "nature of the charge" as a reason for differences in bail outcomes. Drug charges, however, are special under the law. Simple possession charges under the Narcotic Control Act, and all drug charges (including trafficking) under the Food and Drugs Act, are governed by the standard bail procedure. This procedure presumes that an accused person detained by the police will be released after a bail hearing, and requires a crown attorney to "show cause" for imprisonment. By contrast, trafficking, possession for the purposes of trafficking and importing charges under the Narcotic Control Act are "reverse onus" offences, which means that the bail process is based on a presumption of detention (see below).

Admission rates by specific charges

    For each of four charges - trafficking/importing drugs, possession of illegal drugs, obstructing justice and weapons possession - black admission rates are more than nine times greater than white admission rates. As Figure 4-9 shows, the inequality in admission rates for trafficking/importing drugs is by far the largest among the four offence categories. The ratio of black-to-white admission rates on this charge is 22:1.

. . .

    Racial differentials in admissions are larger at the pre-trial stage (remand) than after conviction. With regard to -

     .     drug trafficking/importing charges, black remand rates are 27 times higher than white remand rates in 1992/93. The admission rate ratio for convicted persons, though still very high, drops to 13:1

     .     drug possession charges, black remand rates are 15 times higher than white remand rates. The admission rate ratio for convicted persons, though still high, drops to 7:1

    . . .

Other variables

    Differences other than race likely account for some of the inequality in prison admissions. Age, unemployment and poverty, for example, are all known to be associated with the offences that are policed, prosecuted and punished most vigorously in Ontario and similar jurisdictions (See the discussion on law enforcement below). And black and Aboriginal Ontarians are younger, poorer and more likely to be unemployed than those of British ethnicity.

Understanding over-representation

    . . . Culture cannot cause people to commit crimes or account for racial inequalities in prison admissions. Far from explaining anything, beliefs that some cultures are inherently violent, criminal, anti-social or disrespectful of law are stereotypes that racialize others. They promote constructions of races as real, different and unequal, and allow people to act as if such constructions were true.

    Cultural characteristics of specific racialized groups or minority groups in general clearly cannot explain racial differentials in prison admissions. So how do we explain these differentials in Ontario prisons? In jurisdictions where disproportionate imprisonment of black people has been openly recognized for years, research suggests two general explanations, which may overlap. One explanation emphasizes the influence of social and economic inequality on behaviour; the other points to differential enforcement of the criminal law, including racial discrimination in the administration of justice.

. . .

Differential Enforcement

    Even if criminal activity is widespread, patterns of offending behaviour differ according to the opportunities available. Those with access to other people's money through their employment or profession, for example, are much more likely to embezzle funds than to sell drugs on a street corner. They are also less likely to be caught. Crimes committed in the privacy of corporate offices tend to be more difficult to detect and prosecute than street crimes because of their low visibility, and because the law generally shelters these private spaces from state officials.

. . .

(p. 115)

Regulating imprisonment before trial

Reasons for limiting pre-trial imprisonment

. . . All accused held before trial are kept under maximum-security conditions whether they are charged with possession of drugs, theft, obstructing justice or murder. Jails and detention centres housing remand prisoners are usually overcrowded, resulting in poor living conditions, a virtual absence of privacy and heightened anxiety. As Judge Stortini noted in 1992, these institutions can offer little useful or productive activity to untried prisoners: (Ironically, the lack of services is often justified on the basis that prison programs are an aspect of punishment and as such should not be used for those presumed innocent. The consequence of this policy for the untried prisoner is, at best, intense boredom; at worst, emotional and psychological damage. See for example, R. v. Bennett [1993] O.J. No.892.) `local jails are considered maximum [security] holding facilities. There are no or very little rehabilitative programs for people. Local jails ... warehouse people.'

. . .

Racial inequality in the use of pre-trial imprisonment: findings

Lawyers' perceptions of racial bias

    Many defence and duty counsel perceive differential treatment in the bail system. For example, our survey of defence counsel shows that 67% of lawyers with substantial (40% or more) racial minority clienteles think that racial minority people charged with drug trafficking are more likely to be detained before trial than white people charged with the same offence. Large proportions of these lawyers also perceive differential treatment of racial minority and white people charged with armed robbery (50%), drug possession (41%), aggravated assault (39%), and sexual assault (37%).

    Lawyers commented that differential treatment at bail arises because -

    `White accused are able to show more often than racial minorities those things (wealth, employment, drug rehabilitation, family support, community support, etc.) which impel crowns, police and judges to extend bail leniency. Class biases overlap with racial biases.'

    . . .

    Other defence lawyers do not agree that racial minority and white persons are treated differently in the bail system. They, like the vast majority of crown attorneys we surveyed, think race has no impact on pre-trial detention. These lawyers made comments such as: `I have never seen race enter into discretion in the pre-trial process' and `in the vast majority of cases, at the pre-trial stage, the crown does not even know the race of the accused.'

. . .

Introduction to the major study

    To investigate the exercise of discretion in the remand process, the Commission conducted a statistical study of imprisonment decisions for samples of black and white persons charged with any of five offence types: drug charges, sexual assaults (The Criminal Code has three levels of "sexual assault," "aggravated sexual assault causing bodily harm" and "aggravated sexual assault." The sample was drawn from all 1989/90 sexual assault charges, but all of the charges in the sample we could identify specifically are of the first type (level 1 offences), bail violations, serious non-sexual assaults (This category consists of aggravated assault, assault bodily harm and assault peace officer charges), and robbery.

. . .

Comparisons of detention decisions for specific offences show -

    *    dramatic differences for white and black adult males charged with drug offences.

    *    significant differences for white and black adult males charged with serious non-sexual assaults.

    *    no statistically significant differences for white and black adult males accused charged with sexual assaults, bail violations and robberies.

    Figure 5-2a, which represents the entire drug charge sample, shows that, overall, white accused (60%) were twice as likely as black accused (30%) to be released by the police. Black accused (31%) were three times more likely to be refused bail and ordered detained than white accused (10%). Figure 5-2b represents only that portion of the drug charge sample held for a bail hearing. It shows that 44% of these black accused, compared with 27% of the white accused, were refused bail and imprisoned before trial.

    The difference in release outcomes for black and white accused charged with serious non- sexual assault were also significant, but not as large as in the drug cases. Figure 5-3 shows that over a third (37%) of white accused facing serious non-sexual assault charges were released by the police, but only a quarter (24%) of the black accused were released at that stage. Of those not released by the police, 84% of white accused, and 73% of black accused were granted bail at court. Because of the relatively small numbers, however, this difference was not statistically significant.

. . .

This difference in operating norms is significant to release outcomes because persons charged with reverse onus offences cannot be released by the police and must make the case for release at the bail hearing. Therefore, if a higher proportion of black accused than white accused in the sample were charged with a reverse onus drug offence, then some or all of the difference in outcomes might be due to the nature of the charge. Such a finding would not allay concerns about systemic racism, but might suggest that the main problem lies with the law that establishes reverse onus offences, or with charging decisions rather than detention decisions.

A small supplementary study conducted by the Commission based on later data supports the possibility that differences in the drug charges laid against black and white accused may contribute significantly to differential imprisonment before trial. This study of charges laid by 5 District Drug Squad of the Metropolitan Toronto Police in 1992 shows that among those charged with drug offences, white accused (41%) were more likely than black accused (21%) to be charged with simple possession. Black accused (79%) were more likely than white accused (59%) to be charged with the more serious charges of possession for the purposes of trafficking or another trafficking offence (under the Narcotic Control Act). Analysis of police release decisions for this sample show that black accused were significantly less likely to be released. (Black and white accused in this sample also differed in that black accused were more likely to be described by the police as unemployed than white accused. White and black accused were equally likely to have a criminal record, and to have ties to the community such as a fixed address.)

The data in the major study, however, do not generally suggest that differences in the nature of the charge explain the differential outcomes. Analysis of the drug charge sample indicates three important facts:

    Regardless of race, accused who were charged with a reverse onus offence were more likely to be detained pending trial than those who were charged with other offences. This finding suggests that the nature of the charge affects the results of bail decisions for drug offences.

No statistically significant difference was found in the proportions of black and white accused who were recorded as charged with a reverse onus offence. This finding suggests that the differential outcomes seen in Figures 5-2a and 5-2b were not due to differential charging. But we cannot be sure of this conclusion because of the incompleteness of the record.

The data on file do not include the specific charge laid against 68% of black accused and 53% of white accused.

It is fruitless to speculate about differences in charging patterns in the absence of adequate evidence. But available evidence does not suggest that black accused in this sample are significantly more likely than the white accused to be facing a reverse onus charge. (We compensated for the missing data by sorting the sample into two groups: "known to be charged with" a trafficking (or importing) offence (reverse onus) and "not known to be charged" with a trafficking or importing offence. All accused whose specific charges were missing were placed in the latter category (along with everyone charged with simple possession). Because the results of release decisions for the two categories reveal a clear and significant difference, most of the unknowns were likely facing standard onus charges similar to others in that group. Otherwise, their presence in the "not known to be trafficking" group should have meant that the outcomes for the "known" and "not known" groups should have been more similar). Thus, on this evidence there is no reason to believe that the racial inequality in detention decisions for those charged with drug offences is due to differences in the type of charge laid.

Existence and length of criminal record

    Analyses of previous records for each offence type shows -

    *    no difference in the existence of a record or number of previous convictions of white and black persons charged with drug offences, sexual assaults or serious non-sexual assaults. This finding means that the number of previous convictions does not explain the harsher outcomes for black persons charged with drug offences and serious non- sexual assaults that we document above.

. . .

    Analysis by specific charge of black and white accused with no previous convictions shows -

    . . .

    *    a substantial racial difference in detention decisions for persons charged with drug offences. As Figure 5-7 shows, 72% of white accused who had no previous convictions but only 37% of black accused without previous convictions were released by the police. Bail was denied to 3% of white accused compared with 16% of black accused.

    Among accused with records of one to five previous convictions, the data show -

    . . .

    *    a substantial difference in detention decisions for white and black persons charged with drug offences. As Figure 5-8 shows, 51% of white accused and 37% of black accused were detained by the police, and 28% of black accused but only 10% of white accused were denied bail.

    Among accused with six or more previous convictions, the data show:

    . . .

    *    a substantial racial difference in detention decisions for accused charged with drug offences. As Figure 5-9 shows, white accused (60%) were four times more likely than black accused (15%) to be released by the police, and black accused (49%) were more than twice as likely as white accused (19%) to be denied bail.

Currency of record

    Comparisons by offence type show -

    . . .

    *    significant differences in currency of record for white and black persons charged with serious non-sexual assaults and drug offences. As Figure 5-11a shows, 28% of black but only 8% of white accused charged with serious non-sexual assault who had a criminal record had been convicted within three months of the current charge. Figure 5-11b shows that 27% of black but 15% of white accused charged with drug offences who had a criminal record had been convicted within the previous three months.

. . .

Offence "track record"

    Comparison of the offence track records of white and black accused shows -

    . . .

    *    a difference between black and white accused charged with drug offences. Neither sample had extensive records, but black accused facing this type of charge (25%) were more likely than white accused (15%) to have a previous conviction for a drug offence.

. . .

Bail status at the time of charge

    Comparison of the bail status of white and black accused shows that -

    . . .

    *    black persons charged with drug offences (Figure 5-12) and serious non-sexual assaults (Figure 5-13) were almost twice as likely as white accused facing the same charges to be on bail at the time of charge.

. . .

Ties to the Community

Employment Status

    Comparison of the employment status of black and white accused shows -

    . . .

    *    substantial differences in the unemployment rates of white and black persons charged with drug offences and bail violations. Almost two-thirds (64%) of the black persons charged with drug offences were described by the police as unemployed, compared with 43% of the white accused. The police had recorded 39% of white and 59% of black persons charged with bail violations as unemployed.

Fixed Address

    Comparison of black and white accused in the sample reveals -

    . . .

    *    no statistically significant racial difference in the proportions of accused with a fixed address among those charged with drug offences, sexual assaults, bail violations and robberies.

. . .

Discrimination in detention decisions: the overall picture

    The findings show that -

    . . .

    *    for drug charges, race made a marked and significant difference to imprisonment before trial. Indeed, it appears to have had the strongest impact on differential outcomes of all the factors considered.

    This analysis also indicates that employment status has a distinct effect on detention decisions. Specifically, the analysis shows that -

    . . .

    *    for drug offences, bail violations, serious non-sexual assaults and robberies (that is, every offence category except sexual assault), employment status made a marked and significant difference to imprisonment before trial.

    These findings about employment status are important, given the higher rate of unemployment recorded for black accused in the total sample, and in the drug charge and bail violation samples. They suggest, in particular, that racial inequality in labour markets may be transmitted into the bail process, where it contributes to racial inequality in imprisonment before trial.

Summary of Findings

    This study of pre-trial detention of white and black persons charged with the same offence types reveals evidence of differential treatment across the entire sample. It also revealed differential treatment of persons charged with two categories of offence: drug offences and serious non-sexual assaults. Within the entire sample and the sub-samples, black accused were less likely than white accused to be released by the police and more likely to be detained after a bail hearing.

    The differential is pronounced at the police stage of the process for the entire sample as well as for those charged with drug offences or serious non-sexual assaults. Consequently the bail courts saw a significantly higher proportion of the total number of black accused than of the total number of white accused in these samples (To recap: The police released 29% of white and 18% of black accused across all five offences, which meant that 71% of all white accused in the sample and 82% of all black accused in the sample were brought before a bail court. The police released 60% of white and 30% of black persons charged with drug offences, which meant that only 40% of all white persons charged with this offence type were brought before a bail court while 70% of all black persons charged with drug offences were brought before a bail court. The police released 37% of white and 24% of black persons charged with serious non-sexual assault, which meant that 63% of all white persons charged with these offences had a bail hearing, as compared with 76% of all black persons charged with these offences.)

    Existence of a record does not account for the findings because -

    . . .

    *    in the drug charge and serious non-sexual assault samples, black and white accused were equally likely to have a criminal record.

    *    across the entire sample of accused without prior convictions, and for the accused without previous convictions who were charged with drug or serious non-sexual assault offences, black accused were significantly more likely to be denied release than white accused.

. . .

    Length of criminal record does not account for the findings because -

    . . .

    *    in the drug charge and serious non-sexual assault samples, black and white accused were equally likely to have a lengthy criminal record.

    *    across the sample of accused with lengthy records, and also among those with lengthy records who were charged with drug offences, black accused were significantly more likely to be denied release than white accused.

    . . .

    Accused without previous convictions may be on bail at the time of charge. The findings show that across the sample as a whole, and in the drug charge and serious non-sexual assault samples, black accused were more likely than white accused to be on bail when charged. But this difference between the two groups accounts for only a small part of the overall racial inequality in release outcomes.

. . .

    As presently organized, the bail system demands fast decisions, sometimes made within minutes, and it expects both the police and bail justices to make predictions based on vague criteria and information that it is often inadequate. These features obviously do not compel decision-makers to rely on racial or other stereotypes, nor in any way excuse such reliance. But they establish conditions in which reliance on stereotypes, perhaps subconsciously, may make decisions easier. For example, a justice who assumes that police testimony about drug charges is seldom mistaken and that most black males charged with drug offences sell drugs for profit may quickly conclude at a bail hearing that a specific black male accused is likely to offend before trial. By drawing on such assumptions, the justice avoids the more difficult task of attempting to predict the likely behaviour of that individual.

. . .

Moving forward: analysis and recommendations

    Two fundamental principles underlie the Commission's recommendations. The first is the principle of the rule of law requiring no greater intrusion of the liberty of any individual than can be strictly and legally justified by the state. The second is that the law must reflect equality not only in its content and administration but also in its consequences.

. . .

Three of the exceptions concern specific types of alleged offences. Thus when the charge is murder or other offences listed in s. 469 of the Criminal Code (The other offences are: treason, alarming Her Majesty, intimidating Parliament or a legislature , inciting to mutiny, sedition, piracy and piratical acts, accessory after the fact to high treason or murder, and bribing a judicial officer. Attempting or conspiring to commit any of these offences also creates a reverse onus presumption at bail), bail violations, or Narcotic Control Act (For equivalent charges concerning drugs regulated by the Food and Drugs Act the standard presumption of release applies) offences of trafficking, possessing drugs for the purposes of trafficking, importing, or conspiring to traffic in or import drugs, the accused must show cause to obtain release. Another exception applies to persons charged with any indictable offence who are "not ordinarily resident in Canada." Finally, persons charged with any indictable offence alleged to have been committed while they were on bail must also overcome a presumption of detention.

    The Commission's research suggests that in practice, the exception for charges laid under the Narcotic Control Act may be contributing significantly to disproportionate imprisonment of untried black accused. ( As noted above, the major study presented in this chapter does not reveal differences in the type of drug charge laid against black and white accused, but the study of charges laid by 5 District Drug Squad does show differences. In addition, the prison admissions data for 1992/93, reported in Chapter 4, show massive over-representation of black people charged with trafficking/importing offences). This exception arose out of a perceived need to strengthen law enforcement to combat the drug trade at the top of the drug distribution pyramid. In practice, however, the vast majority of trafficking and importing charges under the Narcotic Control Act are laid against minor actors in the drug trade. Most people charged with trafficking offences are petty "street traders" whose activities are a nuisance to local residents and business. A large proportion of persons charged with importing are small-scale couriers, often women, whose participation in the drug trade is likely limited. Because such people are easily replaced by those who control drug supplies, imprisonment of minor dealers and couriers has a negligible impact on the availability of illegal drugs to users.

    In a decision released shortly before the Commission was established, the Supreme Court of Canada reviewed the justification for this reverse onus for charges under the Narcotic Control Act. Unfortunately, the majority decision accepts the conventional rationale for departing from the principle of restraint in these cases. Its basic assumptions about importers and traffickers are evident in this comment:

     Most alleged offenders are neither wealthy nor members of sophisticated organizations. Drug importers and traffickers, however, have access both to a large amount of funds and to sophisticated organizations which can assist in a flight from justice. These offenders accordingly pose a significant risk that they will abscond rather than face trial.

The majority opinion recognizes that some accused charged with trafficking offences do not fit this profile, and clearly expresses concern that such people not be inappropriately imprisoned before trial. But the majority justices believed that these accused, by proving they do not belong to an organized drug ring, can easily show cause for release. The majority reasons therefore conclude that the risk of inappropriate imprisonment of "small fry" dealers is not significant enough to outweigh the risk that "wealthy" and "sophisticated" traffickers and importers might be inappropriately released under the standard bail process.

By contrast, the dissenting opinion maintains that "small-scale" drug dealers are a different class of offender than the "prosperous drug lords." It states, in effect, that rules that might be appropriate for the "drug lords" are quite unnecessary for the petty traffickers who dominate drug prosecutions:

    Those charged with trafficking are often at the bottom of the chain [in the commercial drug world] and rarely provide a link to the top .... [I]t is far from apparent that the majority of those arrested for organized drug trafficking have large amounts of money or organizations which will assist them in escaping. The lowly street vendor, the person most likely to be arrested, cannot count on the distant drug lord to run the risk of stealing him out of the country.

The dissenting opinion also asserts that the opportunity to show cause for release in a reverse onus bail hearing offers alleged petty traffickers insufficient protection against unfair - and unconstitutional - imprisonment before trial. In response to the majority view that petty dealers may avoid detention if they prove they do not belong to "a criminal organization engaged in distributing narcotics," the dissent makes two points:

    The first difficulty ... is that it is far from clear that a person charged with a more minor trafficking offence will be able to convince the judge that he or she is not connected to a drug organization. The argument would require the accused, presumed to be innocent, to prove the negative proposition that he or she is not part of a criminal organization. Criminal organizations, unlike unions and service organizations, do not distribute lists of their members. How is one to prove that one is not a member?

    Second, the argument does not address the difficulty of the lower-level agent of a larger commercial trafficking organization. The street vendor, while criminally responsible, may not pose a special risk of pre-trial recidivism or absconding. Yet he or she may be unable to establish that they are in no way connected to organized crime. There is no just cause for denying bail in such a case, yet bail might well be denied on the criteria proposed.

The Court appears not to have had access to current and accurate information on the operation of this reverse onus provision. The Commission's more recent investigation suggests that the premises underlying the dissenting opinion are more accurate than those of the majority. The practical effect of presuming detention for persons charged with trafficking or importing offences is to imprison small-scale offenders. Our findings also indicate an additional reason for serious concern about the reverse onus exception for Narcotic Control Act offences: its contribution to racial inequality in the imprisonment of untried accused.

    Fairness and racial equality in the Ontario criminal justice system would undoubtedly be enhanced if Canadian law were to apply the standard presumption of release to persons charged with trafficking and importing offences under the Narcotic Control Act. Unfortunately, a recent federal government bill to amend drug legislation makes no attempt to address the injustices of the reverse onus exception for trafficking

    Restoring the standard presumption of release to these offences would also remove the anomaly by which persons charged with trafficking in drugs regulated by the Food and Drugs Act are treated more favourably than those charged with trafficking offences under the Narcotic Control Act. The ordinary presumption of release applies to persons charged with trafficking - or any other offence under the Food and Drugs Act - no matter how large the quantity of drugs involved or the scale of the accused's (alleged) operations. But the reverse presumption of detention applies to all persons charged with trafficking or importing offences under the Narcotic Control Act, no matter how small the quantity.

    We are confident that making the presumption of release standard would make little difference to bail hearings of persons charged with trafficking in or importing substantial quantities of drugs. In such cases, crown counsel should not find it difficult to argue for detention if that is deemed necessary.

     5.8    The Commission recommends that the Government of Ontario propose to the Government of Canada that it repeal the reverse onus provision of the Criminal Code for importing, trafficking and related charges under the Narcotic Control Act.

Chapter 6 - Charge Management

Findings about police charging discretion

     "We hear about people being 'bugged' by undercover officers until they agree to find drugs, and others who claim to have been subjected to illegal searches which produce drugs of suspicious origin. In other words, while the [Parole Board] sees those who actually do traffick drugs, we also meet individuals who are induced to traffick and those who don't traffick, but may be charged anyway. There is some suspicion that drug related cases are easier to prove in court and [charges] are more likely to be laid against [young black males], which both increases the likelihood of a conviction and helps to perpetuate the stereotype of black drug users/dealers."

    Two defence counsel who responded to the Commission's survey stated that -

    "Trumped-up multiple charges by the police ... are most common when dealing with street-level addicts who traffick in narcotics, especially crack. In my experience 75-80% of these clients come from a minority background."

    "In many cases I have had, I am sure the police would not have charged the person if the person was white. It seems to me the police are more willing to resolve disputes [that] could merit charges of assault, theft or 'threatening' without laying charges if the person is white."

These accounts of explicit and more subtle forms of racial bias in charging practices are depressingly similar to those of previous reports documenting the experiences of black and other racialized Ontarians. Sometimes, however, such accounts have been discredited as mere anecdotes, unsupported by systematic evidence of differential outcomes. Resource constraints prevented the Commission from conducting a comprehensive study of the extent to which the police exercise charging discretion differently in response to similar behaviour by white and racialized people. But findings from related Commission research are consistent with perceptions of differential treatment.

For example

    As documented in Chapter 4, recent prison admissions data indicate that black persons are most over-represented, relative to white persons, among untried prisoners whose most serious charge is drug trafficking/importing, drug possession, obstructing justice or a weapons offence. These charges generally result from police initiative in seeking out criminal offences rather than from a complaint by a victim or another person.

    A study of 248 randomly selected Youth Bureau files, drawn from completed cases at two Metropolitan Toronto police divisions, indicates that black youths are over-represented among young persons whose charges are initiated solely by the police rather than in response to a complaint. The data show that 41% of the sample as a whole, but 52% of the youths whose charges are solely initiated by the police, are black. By contrast 40% of the sample as a whole, but only 29% of youths whose charges are solely initiated by the police, are white.

An observation study of 217 cases in Metro Toronto courts found that, proportionate to their number in court, black defendants are significantly more likely than white or other racial minority accused to face at least one drug or weapons charge. ( The study observed 217 court processes in various courts that serve parts of Metro with large black or other racialized communities. Details of this study are in the Commission's Technical Volume. See Appendix B). The study also shows that these types of charges are significantly more likely to have arisen from proactive than reactive policing. According to these data 77% of the cases resulting in at least one drug or weapons charge, but only 37% of other cases, stem from proactive police activity. Black accused in this study are no more likely than white or other racial minority accused to have been charged with other offences as a result of proactive policing.

Crown attorney discretion to review charges

    Until recently, however, little was known about the formal principles used by crown attorneys in deciding whether to endorse, withdraw or modify charges laid by the police. With the implementation of the Martin Committee's recommendations on charge screening (The Commission's research indicates that some regions systematically screened charges before the new guidelines were developed. So far as the Commission could determine, all Ontario crown attorneys offices had implemented the new screening system by the end of 1994), this exercise of discretion by Ontario crown attorneys is now subject to comprehensive and publicly available guidelines. While charges prosecuted by federal agents, such as those laid under the Narcotic Control Act, are not formally within the Ontario screening system, we understand that federal agents are generally directed to follow the charge screening criteria recommended in the Martin Report.

. . .

Findings about the review of charges

    Comparison of the outcomes of crown elections shows small but statistically significant differences favouring white accused across the entire sample of these offences, and for those charged with assaulting a peace officer and the hybrid drug offences. In the entire sample of hybrid charges, 37% of charges laid against white accused, compared with 31% of charges laid against black accused, were dealt with summarily . . . In the hybrid drug charge sample, 65% of charges laid against white accused, and 46% of those laid against black accused were dealt with summarily. No statistically significant difference appears in the choice of prosecution procedure for those charged with sexual assault or bail violations.

Discretion to avoid court proceedings

    The Commission found no evidence that crown attorneys are perceived to select youths for Alternative Measures in a racially biased manner. However, inadequate access to Alternative Measures and low participation rates for racialized youths were raised frequently. Some duty counsel and defence counsel who responded to the Commission's surveys maintained that these problems reflect arbitrary guidelines or unwillingness by crown attorneys to divert charges. Others blamed the police for failing to tell young people of the program and how to apply, or to use opportunities to recommend youths for Alternative Measures. Many lawyers criticized the limited range of charges qualifying for Alternative Measures before the 1995 amendments to provincial policy that established the categories of charges outlined above.

    The Commission could not assess the impact of these amendments because they came into effect late in our mandate. Our review of existing policies, however, raises an important systemic issue: the exclusion of all drug charges from Alternative Measures. The massive over-representation of black people among persons imprisoned for drug charges (documented in Chapter 4) suggests that this exclusion adversely affects black youths to a significant extent.

    Primary responsibility for this problem lies with the federal government - whose agents prosecute drug charges in Ontario - which does not have a systematic youth diversion program. By contrast, in some provinces where drug charges are prosecuted by provincial crown attorneys (Newfoundland, Quebec and Alberta), youths charged with drug possession may qualify for diversion. Diversion for drug offences should be included in the provincial Alternative Measures program. Ontario should attempt to establish a protocol similar to that between the federal Department of Justice and the Aboriginal Legal Services of Toronto. This should permit diversion of young persons charged with a range of drug offences away from criminal proceedings and into the Alternative Measures Program.

     6.4 The Commission recommends that the Ministry of the Attorney General establish a protocol with the Federal Department of Justice to allow young persons charged with drug offences to be diverted from the criminal process and into the Alternative Measures Program.

(p. 262)

    Variations in court practices among or within cities may also significantly influence the likelihood of imprisonment. A recent study of sentencing in adult provincial courts shows, for example, distinct differences in incarceration rates between Ottawa and Toronto. Persons sentenced in Toronto for offences such as trafficking in or possession of a narcotic, assaulting or obstructing a peace officer, or failing to appear in court were much more likely than those in Ottawa to be imprisoned.

Sentencing outcomes: our major study

Introduction and scope

    To investigate the exercise of discretion at sentencing, the Commission conducted a major statistical study of imprisonment decisions for samples of black and white adult males sentenced for any of five offence types: drug charges, sexual assaults, bail violations, serious non-sexual assaults and robbery. This study, which is unique in Canada, draws on the same set of data, gathered by the Canadian Centre for Justice Statistics, as the major study of imprisonment before trial in Chapter 5. Analyses were conducted by Professors Julian Roberts of the University of Ottawa and Anthony Doob of the University of Toronto.

    As noted in Chapter 5, the original sample consists of 821 adult males classified by the police as black and 832 adult males classified by police as white who were charged by the Metro Toronto Police in 1989/90. (See Chapter 5 for an explanation of why this particular sample was selected, and restrictions of the study. A detailed description of methodology appears in our Technical Volume (See Appendix B)).

Differential imprisonment rates

    Initial comparisons of sentencing outcomes for black and white convicted men revealed statistically significant differences across the sample as a whole, within the largest single offence category (the drug offence sample) and within a sub-sample of those sentenced for sexual assaults, bail violations and drug offences. As Figure 8-1 illustrates, about two-thirds of the black convicted men in the entire sentenced sample, the sub-sample and the drug offence sample received a prison sentence. By contrast, the proportion of white convicted men who were sentenced to prison varies depending on whether the sample includes those sentenced for all five offences (57%), the three offences in the sub-sample (47%) or drug offences only (36%).

    These findings are highly suggestive, but taken alone do not establish direct racial discrimination in sentencing decisions. What appears to be a relationship between being black and being sentenced to prison could conceal other differences that matter in sentencing. Identification of such other differences would not necessarily absolve the sentencing process from responsibility for discriminatory outcomes, but it might highlight reliance on apparently neutral factors that adversely affected the black sample.

Seriousness of offence type

    Table 8-1 shows the number and proportions of black and white men in the sample who were sentenced for each type of offence. It can readily be seen that the offence profiles of the two groups are distinct. . . . While the drug offence category contains virtually identical numbers of black (152) and white (157) convicted men, it accounts for a notably higher proportion of sentences in the black (40%) than white (32%) samples.

Specific charges: the sub-sample

    Comparison of the specific charges in the drugs, sexual assaults and bail violation samples was hampered by missing data. Analysis of the available data revealed no difference in the offences of black and white men sentenced for bail violations or sexual assaults.

    By contrast, the data showed distinct differences between white and black persons sentenced for drug offences. Of those for whom information was available, 90% of the white but only 67% of the black sample were convicted of simple possession, while 25% (12 men) of the black sample but only 8% (six men) of the white sample were convicted of possession for the purposes of trafficking. Since trafficking offences are more serious than simple possession, this difference in offences could explain some of the disparity in sentencing outcomes.

    Further analysis of the drug offence sample indicates, however, that the difference in incarceration is not wholly due to the nature of the offences. We compared the sentences imposed on the black and white samples convicted of the same offence, possession of a narcotic. This analysis revealed that of those known to be convicted of simple possession, 49% of black but only 18% of white men were sentenced to prison.

Characteristics of the criminal incident

    We analyzed data on the criminal event that led to the conviction. Again a significant quantity of data was missing, which is not unusual in these studies, but the information available indicates that the circumstances of the black and white samples are quite comparable. . . . Among those convicted of drug offences, the data showed no statistically significant differences in the nature or quantity of drugs involved.

Summary

    In general, the comparison of offences shows little difference between the two samples. We found no evidence that the black sample was sentenced for more serious offence types, nor were the characteristics of their cases more serious than those of the white sample. Even where we did find a significant difference (specific drug offences), further analysis demonstrated that it did not fully account for the higher incarceration rate of the black sample. Taken together, these findings suggest that the basic findings of differential incarceration rates are not explained by qualitative differences in the offences.

Criminal justice variables

Crown election

    Some of the offences included in this study offered crown attorneys a choice about how to proceed. Most of the known drug offences, and all of the known sexual assaults, bail violations and "assault peace officer" offences in the sample are hybrid charges. The robberies, serious assaults apart from "assault peace officer" and some of the drug charges are indictable only. Crown attorneys had proceeded summarily against a higher proportion of white (61%) than black (55%) men who were convicted of these charges (See Chapter 6 for more details).

Direct and indirect racial discrimination

    These detailed comparisons reveal notable differences between black and white convicted men:

    *    Black convicted men were less likely than their white counterparts to have a criminal record, or a lengthy record, but those with a record were more likely than white convicted men to have a recent conviction.

    *    Black convicted men were more likely than their white counterparts to have contested the charge, been detained before trial, and been prosecuted by indictment.

    *    Black convicted men were more likely than their white counterparts to be described as unemployed.

    Some of these differences are consistent with harsher sentencing of the black men, some are inconsistent, and others raise the possibility that discrimination earlier in the criminal justice process was transmitted into sentencing. To clarify the relationship between these differences and racial discrimination at sentencing, we conducted multivariate analyses of the entire sentenced sample and the sub-sample of those sentenced for drug, bail violation and sexual assault offences. These analyses allowed us to see if racial differences in sentencing remained when all the other factors identified in the detailed comparisons were simultaneously taken into account.

    We found that -

    *    within the entire sentenced sample, race did not account for any more of the disparity in sentences than was due to differences in pre-trial detention and employment status. This finding indicates that unemployment and detention before trial had an indirectly discriminatory influence on judges.

    *    within the sub-sample, race had a small but statistically significant influence on sentencing decisions beyond the effects of other factors. This finding indicates that some black convicted men were sentenced to prison when white convicted men with the same personal and case characteristics were not sentenced to prison.

    *    within the sub-sample, unemployment, detention before trial, not-guilty pleas, and prosecution by indictment were related to the likelihood of prison sentences. These findings indicate that apparently neutral factors, which are not directly related to race, indirectly contributed to higher incarceration rates for black than white convicted men.

Disparity in prison terms

    Many judges take account of pre-trial custody when determining the length of a prison sentence, giving "credit" for time served before the trial. . . .

    To investigate these possibilities, we compared the terms imposed on the 279 white and 264 black men who were sentenced to prison. The basic findings showed that across the sample as a whole the average prison terms of black prisoners (212 days) were significantly shorter than those of white prisoners (339 days). A statistically significant difference was also found for the drug offence sample: the average sentences of white prisoners (183 days) were almost twice as long as those of black prisoners (95 days).

    To see if racial differences in sentence length remained after accounting for relevant factors, we conducted multivariate analyses of the entire sentenced sample and a sub-sample of those incarcerated for drug charges, sexual assaults and bail violations (We did not compare in detail factors such as criminal record or aspects of criminal justice processing that could influence sentence length, because the incarcerated sample is relatively small). These analyses showed that -

    *    within the entire incarcerated sample, race had no effect on length of prison term, once pre-trial detention and aspects of criminal record were taken into account. This finding suggests that the shorter prison terms of black prisoners were mostly due to time spent in custody before trial and less serious criminal records.

    *    within the sub-sample, race had a direct effect on sentence length independent of the effect of time served before trial or criminal record. This finding is consistent with the possibility that sentencing judges viewed at least some black accused found guilty whom they incarcerated as less serious offenders than white men incarcerated for the same offence types.

Judicial discretion at sentencing

Guideline judgments

    One avenue of reform would be for the Ontario Court of Appeal to reconsider some of its sentencing principles in light of our findings that apparently neutral factors have an adverse impact on black accused. The Court might, for example, reconsider the relevance of factors such as employment to mitigation, the interpretation of guilty pleas as signs of "remorse," and whether its views of sentencing for drug use and petty trafficking are factually based.

    . . . For cases involving drug and other charges handled by federal prosecutors, the Attorney General of Ontario should seek intervenor status to ensure that data on systemic discrimination is placed before the Court of Appeal.

Chapter 9 Racism Behind Bars Revisited

(p. 325)

Parole hearings

    Our observation of parole hearings revealed evidence of stereotyping of racialized persons, particularly in relation to women and drugs. For example, a black female prisoner who denied having a drug problem was repeatedly asked what programs she had entered to address her drug problem. In addition, stereotypes were raised about the residences of prisoners from racialized communities. The following examples of comments about black and Aboriginal prisoners by Board members' were generally unchallenged by their colleagues:

        `He is going to be living near where the drug dealing takes place ... As a result, I am not in favour of parole.'

        `How would parole to Jane and Finch [in Metro Toronto] help you with your drug

problem?'

        `Parkdale [in Toronto] may not be the best place for her because of the drug scene.'

Chapter 10 Community Policing

(p. 346)

Accounting to the community

    Another limitation of traditional consultation methods is their failure to address the complexity and diversity of the community involved. Even within the smallest policing areas, the community is rarely homogeneous. What some people view as a problem is a harmless social activity to others. Though community-based accountability demands that the police define their work in concert with the community, officers cannot act only on behalf of people who insist that the presence or activities of others is a problem. This was graphically illustrated in the tragic shooting of Vincent Gardner by a Nepean police officer in 1991.

    The shooting occurred when the police raided a house where black people socialized and listened to a local reggae band. Neighbours had complained to the police about the noise, vehicles and the number of visitors to the house, and made allegations about drug trafficking. The police took the neighbours' complaints seriously and placed the house under surveillance. They also held a "community meeting" to discuss the concerns, but the people living at the house were not invited. Instead, the problem was defined in the absence of the people believed to be causing it. As a result, it was wrongly and stereotypically characterized as drug trafficking. This characterization of the problem led to a "solution" that ended in tragedy.

Racial inequality in police stops

    Studies from many jurisdictions show that police stopping of and aggression toward black and other racialized people and young working-class males of all origins serves purposes other than crime prevention and detection of offenders. It allows the police to demonstrate to themselves, to people they stop, and to local residents and business people that the police control public spaces. Richard Ericson's study of police patrols in an Ontario jurisdiction shows that such demonstrations of authority are clearly evident (and deeply entrenched) in police practices. As he says,

        . . . In the jurisdiction we studied, the target is lower-class young persons ("punkers") who may be occasionally involved in drug and property-related offences and who appear to some to be offensive. Regardless of the community, some group will always be targeted.

Perceived fairness of police stops

    Some respondents felt the combination of their race and other factors led to the police stop. Among the factors they identified are:

    . . .

    *     perceived association with drugs - One man said he was stopped because "if you are black and you drive something good, the police pull you over to ask about drugs." Another man said he was stopped while walking "because I am black and it was late at night, so the police had a suspicion that I was selling drugs." Other black respondents said they were stopped because they were walking in areas perceived to be "drug infested."

Converted by Andrew Scriven