Blackness, Indigeneity and the Criminal Legal System

The criminal legal system is born out of racism and slavery. From policing to courts to prisons to release - the CLS does not happen to be racist; it is racist. Racism and ableism are elements so ingrained that it cannot be reformed in to something that is just or equitable.

Our position with this project is to support people so they can navigate and survive the system, but we understand that for justice to exist policing, courts, and prisons as we know them today must end.

As well, Black, Brown, Indigenous and people of colour do not end up detained, arrested, or before a judge by chance. There are structures and systems that work to put people who are racialized in prison. Both covert and overt racism within ourselves as individuals, as communities, and as it is ingrained within systemic structures work to put and keep people of colour in prison every single day. This includes our education system, child welfare agencies, and housing and social service sectors. Those together with the impacts of intergenerational trauma and intergenerational poverty actively work to criminalize those who are Black, Brown, Indigenous or people of colour.

If you work in or adjacent to the criminal legal system, check out this area for more information on how you can better understand and react to racism and ableism within your sectors, and how to build and centre abolitionist practises.

Nearly 40% of Respondents of an Ontario Human Rights Commission survey indicated that they had beenracially profiled within the province, and that Police, private security and private businesses were among the top areas/sectors they experienced profiling.

Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario, OHRC, April 2017

22% of Black Canadians have been unfairly stopepd by police in the last 12 months, while 10% of Indigenous people and only 5% of white Canadians say the same.

Blackness in Canada Policy Network (the Institute for Social Research)

The Thunder Bay police service recently admitted to “compassion fatigue” when responding to
the Indigenous community, resulting in preventable deaths.

Thunder Bay Police Lacked Compassion, Turtle Island News, November 2, 2022

90% of Black individuals, and 82% of Indigenous peoples, identified experiencing racism within the criminal legal system as a serious problem.

Blackness in Canada Policy Network (the Institute for Social Research)

A report by Legal Aid Ontario identified that there are also clear racial bias findings in sentencing. Black,
Indigenous, and disabled people are all more likely to be detained pre-trial, receive harsher sentences, and spend more time in custody to those who aren’t Black, Indigenous, or disabled.

A Legal Aid Strategy for Bail, Legal Aid Ontario 2019

Some detention facilities – in particular in Northern Ontario – have population that are 90% Indigenous, where nearly 100% of individuals have self-identified as having some type of disability or as an individual who is addicted to substances.

Every Inmate at Kenora Jail has Addictions, Mental Health Issues: Human Rights Commissioner; CBC February 2017

For a more thorough examination on how systemic racism and ableism put people with disabilities, people who are neurodivergent or autistic, or people of colour in prison, see our project's research summary.

Implicit Racism and Ableism that puts Racialized and Disabled People in Prison

DJNO has launched a new project looking at the experiences of racialized and disabled people in prison. Part of this project has been assessing different factors that contributed - or directly results - in putting those individuals there in the first place. This image has a dark heading with white text that reads the title. There is a circle on a light background with numbered icons from one to seven labeled: housing, social services, school, security, police, courts, and parole.

Housing

Landlord bias and racism can keep racialized or disabled people houseless, living in poor conditions, or being exploited. Gentrification mostly displaces poor, racialized and disabled people. People leaving prisons have often lost their housing and are released houseless and without supports, leading to "survival crimes".

Schools

Staff are more likely to see racialized youth as "aggressive" and suspend or expel them over white youth exhibiting the same behaviours. Counsellors are more likely to report "tensions at home" to CAS in the cases of black students. Staff are more likely to call police on students who are black or disabled. A lack of appropriate ethnic or educational supports mean disabled and racialized students more often leave or are kicked out of school.

Courts

Racialized and/or disabled people are more likely to be denied bail. They are also more likely to receive longer sentences, and are less likely to qualify for parole when compared to similar offenses by white people. Juries, until 2019, were selected based on property ownership, making them mostly upper to middle class white people - not a jury of peers.

Social Services

Bias and racism in social workers and foster families means racialized children are more often removed from their homes, and more likely to have police called if there is a behavioural issue. Agencies working directly with police often result in the targeting surveillance of racialized and/or disabled children, youth and families. Disabled individuals often end up in, or staying in, prisons due to shortage of supportive living programs.

Security

Security guards more often target racialized individuals for surveillance and are more likely to have police lay formal charges of theft or "problem behaviour" id the offender is racialized. Behaviour of racialized youth is more likely to be seen as "problematic" than the same behaviour in white youth.

Police

Racism and ableism results in the over surveillance of racialized and poor communities including traffic stops, carding and street checks. Police are more likely to formally charge racialized and/or disabled individuals and keep them for bail hearings instead of using extrajudicial measures. They are also more likely to use force against racialized and disabled people, sometimes resulting in injury or death.

Hyper Surveillance

The hyper surveillance of any community is likely to result in criminal findings. The fact that police - especially community policing teams - focus their efforts on communities that are poor, and often comprised of people who are racialized and/or disabled instead of white suburban neighbourhoods means they are making a decision about who to charge.

Intergenerational Trauma

Intergenerational trauma is an adverse trauma that impacts each future generation. It makes individuals/families more likely to have difficulty with attachment, disconnection from families/cultures, and high levels of stress or coping with emotional load. Each factor individually can result in the development of chronic illness and increase the likelihood of developing behaviours seen as criminal.

Poverty

Poverty is a significant risk factor for developing a mental health disability, and people with mental illness often live in chronic poverty. Generational poverty is lifelong, reinforced through systemic means and is impossible to escape without outside intervention. It's associated with developmental issues, restricts access to healthcare and supportive education, and makes post-secondary education - and thus living wage work - inaccessible. Racism and ableism means Black, Indigenous and poor people are more likely to experience generational poverty, as well as making it harder to escape. Poverty is associated with various criminal behaviour, including survival crimes, and criminal records further create a cycle of poverty.

Children Removed from Homes

Children removed from their homes are more likely to become involved with the criminal justice system both as youth and adults than those who were allowed to stay in their primary homes with additional supports. Charges are substantially administrative i.e missing curfews or not following (often arbitrary) house rules. Social workers are more likely to report the behaviour of racialized youth than non-racialized youth.

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Disability & the CLS