Browne: Canada’s judges need training in anti-Black racism (and we need more Black judges)

One of the most important concepts in our justice system is the idea of judicial impartiality, which dictates that judges must be, and should appear to be, impartial in their decision-making. However, concerning race-based cases, evidence suggests this may not be the case. The disproportionate incarceration of Black and Indigenous people is well documented — and judges play a role in this.

What’s less documented in Canada — but very apparent to anyone who spends time around our courts —  is that judges remain disproportionately white; Black judges are particularly rare.

A 2016 report in Policy Options said women, visible minorities and Indigenous people are under-represented among the more than 1,000 federally appointed judges, and in 2020 the Canadian Bar Association said “the judiciary in Canada remains overwhelmingly white” and called for more diversity in judicial appointments. We don’t know how many judges were Black because the data didn’t say. Regarding judges’ decisions on cases involving Black people specifically, we also don’t know if racial bias may be affecting their decisions as there is no race-based data in Canada on how often judges rule against Black plaintiffs and/or defendants versus white ones.

University of Ottawa law Prof. Constance Backhouse examined the issue of judicial racial bias in her 2021 report Turning the Tables on RDS: Racially Revealing Questions Asked by White Judges. Her report focused on comments made by white Supreme Court judges during a 1997 hearing. That hearing was an appeal of a 1993 decision by a Black female judge in Nova Scotia’s Youth Justice Court.

The 1993 case involved a 15-year-old Black boy, Rodney Darren Small (RDS), who was biking through his predominantly Black Halifax neighbourhood when he saw his cousin being arrested by a white, male police officer. He stopped to ask his cousin if he needed help and what ensued resulted in the police officer putting both Small and his cousin in chokeholds and charging Small with assaulting an officer, according to court records. Black female judge Corrine Sparks acquitted Small at his Youth Justice Court hearing, saying “ … certainly police officers do overreact, particularly when they are dealing with non-white groups … I believe that probably the situation in this particular case is the case of a young police officer who overreacted.”

The police officer accused Judge Sparks of calling him racist and although she hadn’t, his complaint, supported by the white police chief and the white Crown prosecutor, set in motion a chain of appeals that led to the Supreme Court of Canada.

The Supreme Court upheld Sparks’s verdict in a 6-3 decision. Backhouse’s article examines some of the comments made by one of the dissenting judges during the appeal hearing, then-chief justice Antonio Lamer, which led the Chinese Canadian National Council to file a complaint against him with the Canadian Judicial Council. Among other things, Lamer said, “For many, many years when I was practising as a lawyer, I had clients who were Chinese … Chinese people have a propensity for gambling.”

Backhouse’s article examines these comments and the reaction to them, including a section on the judicial “Professional Culture of Whiteness.” Backhouse argues that many white lawyers and judges live primarily in a “white bubble,” raised in families, schools, neighbourhoods, workplaces and social circles largely confined to white people. While insensitivity to racism is not an inevitable consequence, for most of them the experiential gap means they aren’t well-equipped to assess racism claims.

If you asked an average white person and an average Black person about a case with a white judge and a Black defendant, you would likely get very different perspectives.

Judicial anti-racism training might help but Backhouse says judges have traditionally been averse to judicial education, with many judges insisting that such courses “could be a cover for attitudinal indoctrination by interest groups.” The 2019-2023 Ontario Superior Court of Justice report Modernizing the Justice System says judges receive “cultural competence and unconscious bias education” but doesn’t mention anti-racism or systemic anti-Black racism training.

The assumption that white judges operate free of racial bias must be challenged. Backhouse quotes White Fragility author Robin DiAngelo saying, “white defensiveness supports the delusion that we are objective individuals,” and protects our “deep investment in a system that benefits us and that we have been conditioned to see as fair.” Backhouse adds that not acknowledging white privilege ensures we continue to perceive white judges as neutral and Black judges as less so. She concludes that it was no accident that the first case of judicial racial bias to reach the Supreme Court was directed at a Black judge.

One of the legal tests of judicial impartiality is if there is a “reasonable apprehension of bias.” But if you asked an average white person and an average Black person about a case with a white judge and a Black defendant, you would likely get very different perspectives.

More than ever, judges need effective anti-racism training, especially in systemic anti-Black racism. And surely they have the critical capacity to ensure they’re educated — not indoctrinated — by such training. Police, who are also expected to fulfil their duties impartially, constantly ask for — and receive — money for training, including anti-racism training. No one says they’re being indoctrinated by the “interest groups” that deliver the training.

We need race-based data on who our judges are and what decisions they’re making, to truly know how just our justice system is — or isn’t.

Robin Browne is the coordinator of Ottawa’s 613-819 Black Hub, which works to address systemic anti-Black racism.