Black overrepresentation in Canadian prisons: Data gaps and judicial bias hinder progress, lawyer says

Two years after the passage of Bill C-5, which aimed to reduce the overrepresentation of Black individuals in Canadian prisons, significant challenges remain in its implementation, with a lack of data and “bias” among judges at sentencing still being major obstacles, according to lawyer Fernando Belton, one of the nine members of the Committee created by Ottawa to study the issue.

Canada’s Black Justice Strategy was created after the death of George Floyd on May 25, 2020, in Minnesota, USA. It was brought forward to address racism and systemic discrimination against Black people, a situation that has “led to their overrepresentation in the criminal justice system, including as victims of crime as well,” according to the government.

The strategy aims to ensure that Black people receive equal treatment before the law and justice in Canada. And for the past year, the Department of Justice has mandated a group of experts to analyze the subject and report. The document, which is in the final stages of completion with about a hundred recommendations, places the “issue of data at the heart” of the concerns.

Lawyers Suzanne Taffot and Fernando Belton are the two members of the committee from Quebec. Belton’s experience with the new Bill C-5, which was adopted more than two years ago and is supposed to lower the incarceration rate of black people in Canadian prisons, is inconclusive. It should be noted that Bill C-5 gives judges discretion in sentencing and eliminates mandatory minimum sentences from the Criminal Code.

A year ago, Belton, a criminal lawyer, represented a young man accused of illegal possession of a firearm. The accused has four children, two of whom he has sole custody of. He has a stable job and had “completely changed his life” at the time of the trial, according to him.

“A perfect candidate for the suspended sentence provided for by law,” says Belton. But, despite everything, the judge sent him to prison. “It’s certain that the legislative change is good. But when it comes to sentencing, the problem remains the system with judges and their biases,” the criminal lawyer said in an interview with New Canadian Media (NCM).

However, the Committee has focused its work on at least five pillars that are social determinants of justice: income, employment, housing, education, and health. These are factors that interact with the justice system and can contribute to overrepresentation, according to him.

But in its final report, the Committee, according to Belton, was concerned about the fact that federal, provincial, and even municipal authorities do not collect data on this matter, among a hundred recommendations made to the government.

Even if there are good results in some cases, the lawyer judges, because of this lack of data “there are some that are mixed” as well. In the absence of figures on the representation of Black people in prisons, Belton says he relies on his observations.

“When it comes to sentencing, the general observation or the question we must ask ourselves is: Is the system tougher on Black people?

NCM invited the criminal lawyer to answer his question. Belton said that unfortunately, “the answer is hard to determine since we don’t have precise and detailed data on the situation.”

According to Statistics Canada, in 2021-2022, Black people represented 9.2% of the overall prison population, while they represented about 3.5% of the Canadian population in general. The majority of Black people incarcerated are young men, the largest proportion of them being aged 18 to 30.

According to the Office of the Correctional Investigator of Canada, 54.8% of Black people incarcerated in Canada are in Ontario, 19.2% in Quebec, 13.6% in the Prairies, 7.1% on the West Coast, and 5.3% in the Atlantic region.

The issue of data is at the heart of the Committee’s report, which challenges the Minister of Justice’s authority to implement the collection of statistics on Black people in the prison system. Belton recalls that if the Armony report on racial profiling in Montreal had such a strong impact, it is because the authors had direct access to police data.

“I think it’s worth having this data in order to make informed decisions,” the criminal and penal lawyer said. The report in which he participated will call for the authorities to review certain federal laws, but also those under provincial and municipal jurisdictions. The experts will also call for “amendments” to the Criminal Code.

“There is a lot of openness to change, but we are in a reality with everyone’s spheres of jurisdiction, which means it will not be easy,” Belton believes.

The Committee wants to bring the element of systemic racism into the administration of justice, and these aspects must be taken into account. Fernando Belton argues that his client, who had not been granted leniency by the judge who sent him to prison despite his efforts to repent, had experienced racism in his life, including systemic racism. This is a different approach to criminal law. “I believe in the notion of a second chance,” he says.

It should be noted that Emmanuel Dubourg, a Quebec Liberal MP of Haitian origin, considers Bill C-5 to be one of the flagship measures taken by Justin Trudeau’s government in favour of Black Canadians. In total, more than $800 million has been allocated for various programs and investments.

He recalls that these initiatives are being implemented within the framework of the United Nations International Decade for People of African Descent, which is a global call to action to address issues in the areas of recognition, justice and development. This period ends in December 2024.

Interviews for this article were conducted in French. This article was originally published in French on April 8, 2024, on, New Canadian Media’s French-language publication.

Jean Numa Goudou, Local Journalism Initiative Reporter, New Canadian Media