Racism in the Ontario Legal System: Examining Institutional Systemic Racism

February 10, 2021
Nital S. Gosai
B.A. Hons, L.L.B., Founding Partner

Black, indigenous, and people of colour are overrepresented in Canadian prisons. At the same time, they are underrepresented in leadership roles within the justice system. Systemic racism may not be built into the law, but it is built into the way we practice the legal profession.

The Ontario legal system was created by white men. Today, the system continues to reflect the societal advantages afforded to those who are white and those who look white. From lawyers fighting for a plaintiff’s rights to the judges making life-changing decisions, racialized people are vastly underrepresented in legal professions. 

Look at The Statistics Supporting Racial Bias

In Ontario, 4.7 percent of the population is black. And although there are nearly 2,000 judges across all of Canada, only 17 of them – less than 1 percent – are black. Between 2016 and 2018, of 46 indigenous applicants to judicial appointments, six were ultimately appointed.

The 12 largest law firms in Ontario have 16 black partners, which translates to only one percent of all partners in those firms. Fewer minority lawyers tend to work at larger law firms, instead, concentrating in firms of less than five lawyers. Furthermore, a 2016 survey found that only six percent of black, indigenous, or other racialized lawyers, compared to 18 percent of white lawyers, achieve partner in a law firm of any size. 

It follows that plaintiffs of colour may find it challenging to find a lawyer of a similar background. While indigenous people comprise two percent of Ontario’s population, they represent only 1.5 percent of lawyers. Similarly, although 4.7 percent of Ontario’s population is black, only 3.2 percent of lawyers are, with just over a thousand black lawyers across the entire province. Overall, racialized Ontarians account for 19.3 percent of lawyers, compared to 29.4 percent of Ontario’s population. 

As illustrated by these alarming statistics, Ontario’s legal system mirrors the racial issues prevalent in our society. 

Sentenced for The Colour of Their Skin?

Although Indigenous adults account for about four percent of Canada’s population, they represent about 3 out of every 10 admissions to custody. About eight percent of offenders in Canada’s prison system are black, though they comprise only 3.5 percent of the overall population.

These numbers may be startling, but they only illustrate a small part of the larger picture. Risk assessments are another area with questionable statistics. Risk assessments determine an offender’s security classification and influence sentencing, as well as establishing reintegration scores that ultimately impact parole. When the data from these scores were isolated and analyzed, it was found that black inmates are 24 percent more likely – while indigenous inmates were 30 percent – to get worse scores compared to their white counterparts. This means that if they engage in the same crime as a white person, they are likely to serve a longer sentence. In reality, statistics show that minorities are less likely to re-offend than their scores suggest.

In the civil litigation context, my black clients and clients of colour are subjected to criminal background checks more often and much earlier in the litigation process than my white clients. If the background checks do yield findings, often they are of no bearing on the personal injury case. 

Unnecessary background checks and irrelevant lines of questioning can overwhelm a jury with details that are unrelated to the case and ultimately impact its outcome. 

We have to acknowledge this reality of systemic racism…

Persisting in the belief that race has no influence within the legal profession on legal outcomes is utopian. As officers of the court, we profess that we are unbiased when it comes to race, but when statistics so overwhelmingly contradict that claim, we need to take a step back and acknowledge reality.

The law is systematically racist. It is so deeply rooted in our psyche, in the soul of our country and our culture, that we fail to recognize it. A lot of white people (and people like me who “pass” as white) benefit from white privilege yet fail to acknowledge that it exists. 

This is especially true of lawyers. Maybe it’s because we think we know better and that we should not be biased by race. Likely we can all agree that knowing not to be biased based on race is not the same as in fact not being biased based on race. We must fundamentally interrogate our own behaviour and the narrative we subscribe to in its microscopic form, and perhaps only then start understanding why the statistics remain where they are. 

…and begin making changes

The numbers are clear: black, indigenous, and people of colour are overrepresented in prison and underrepresented in leadership roles. Gosai Law’s ongoing effort to create an inclusive and diverse organization includes our continuous anti-racism training, which equips staff to better handle situations of racism in the legal system as it relates to our clients, our staff, and the larger legal community. 

The Ontario Trial Lawyers Association took a major step in 2020 by hosting their first-ever roundtable discussion on race and practicing law. The panelists, including myself, shared our experiences of working within Ontario’s legal system and our ideas on how we can better advocate for people of colour now and in the future. 

There is no easy solution to systemic racism. But acknowledging its existence for what it in fact is, and recognizing our own privileges is a small step in the right direction.

Read more about addressing racism in Ontario’s legal system in our blog series.

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