Racial data gaps in the criminal justice system: Where do we start?

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Image: Joan Villalon/Unsplash

The death of Regis Korchinski-Paquet, who ended up on the ground outside of a high rise building after police were called to her home, has sparked outrage amongst community members. The Black community and allies are demanding answers for what happened to Korchiniski-Paquet, and the many other Black people who ended up dead after police were called. 

Weeks after the incident, Ontario's Special Investigation Unit announced it will start a process to collect race-based data in effort to identify and monitor systemic racial disparities and ensure the fair treatment of everyone, according to a report from The Canadian Press

This historic step forward also comes at the expense of many Black and Indigenous people who died at the hands of police such as Andrew Loku, D'Andre Campbell, Jason Collins, Eisha Hudson, Machuar Madut, Olando Brown, Jermaine Carby, and countless others. 

"The collection of race-based disaggregated data is not a question of convenience, it is a question of human rights. you can't know the degree to which you are helping your citizens realize their full human rights, or that you're adequately protecting their human rights, if you're not collecting and openly reporting this data," said Anthony Morgan, a racial justice lawyer who leads a team at the City of Toronto to address anti-Black racism.

Critics have long advocated for the collection of race-based data by law enforcement agencies. In 2017, The United Nations' Working Group of Experts on People of African Descent released a report on its findings of the state of Black communities across Canada and made recommendations. The report specifically criticized the lack of race-based data that could inform prevention, intervention and treatment strategies to alleviate social-economic barriers for Black people. 

In the last few decades, we've seen pushback to the collection of race-based data collection by law enforcement agencies. Dating back to the early 2000s, when Julian Fantino was chief of Toronto Police Service and openly denied the need for race-based data collection, even after reports from the Toronto Star demonstrated racial profiling during his tenure.  

While some critics say that race-based data collection is another form of racism, Morgan explains that this perspective does not appropriately consider what happens in courtrooms. 

When it comes to our criminal justice system, race-based data collection has been the source of many controversial incidents from areas of policing, bail, sentencing and the overrepresentation of minority groups in federal prisons. 

In 2018, The Ontario Human Rights Commission reported that Black people were victims of police use of force 70 per cent of the time between 2013-2017. Other reports like the 2010 Toronto Star analysis of local police carding found that Black youth were 13 times more likely to be stopped and documented by an officer.

In late 2019, Toronto Police Services announced a race-based data collection strategy. Furthermore, Ontario's top court will soon decide how systemic racism should weigh in the sentencing of a Black offender -- similar to the Gladue principle which allows courts to consider an offender's Indigenous background during sentencing.  

"Once you have that data, it empowers community members, it empowers advocates, it empowers even allies who are in courtrooms or policy tables, [and] give them leverage and make specific arguments or make calls for very specific kinds of changes," Morgan said.

Data gaps in the criminal justice system 

One of the reasons we see gaps in data collection, according to Maaike Helmus -- a criminology professor at Simon Fraser University in B.C. -- is because each province manages its own court and corrections system which can lead to inconsistencies in comparing data across provinces. Additionally, each police jurisdiction is responsible for filling out its paperwork on time to submit to the RCMP's criminal records processing centre, and anecdotally, this just doesn't always happen. 

When Helmus was completing a study on a large sample of sex offenders on community supervision across Canada, she noticed at times that there was a lag of years between when the conviction actually happened and before it showed up on the record, as well as gaps where some convictions appeared in provincial records but not federal records, and vice versa. 

"It's kind of a mess," she said, "As is often the case with any government agencies, they get stuck in really old and outdated systems, and often the money and technical skills to get a better data tracking system doesn't exist." Helmus also added that human error could also impact inconsistencies in data collection.  

Another barrier to collecting race-based data can be found in the way Statistics Canada categorizes racialized people. StatsCan combines Black populations with other non-white and non-Indigenous populations in the visible minority category when collecting data on the public sector. 

Visible minority is a term that was coined by a Black woman in 1975, who advocated for the rights of minority groups. Although recently, many consider the term to be outdated and are critical of the way it homogenizes the experiences of different minority groups. 

This is what led Kanika Wortely, a criminology researcher at Windsor University, to lead a national survey on Black people's perception of police by disaggregating the visible minority category from Statistics Canada. 

"The problem with [aggregated data] is that it groups all minorities together so it skews actual differences between ethnicities and races within the visible minority categories," she said.

Wortley says she had to go through many procedures before accessing this data such as providing fingerprints, photographs and other personal information, all in an attempt to learn how our Black youth feel about police. 

So far the results of her study demonstrate that Black youth are more likely to have negative perceptions of police. In her series of interviews with youth, she also found that Black youth were more likely to encounter police because they fit a description of a suspect. While on the other hand, white youth were more likely to encounter police once they have been apprehended for committing a crime.

"As a Black academic I think it's important for me to explore this, and to put this type of research out into the public. It's meaningful to me in this way because it is affecting my community," she said. 

Late last year, Wortley published a study examining police racial bias when referring young offenders to pre-charge diversion programs. Her research found that Black youth were less likely to be referred to pre-charge diversion programs when compared to white youth who were facing the same crimes. 

When a young person is arrested for a minor crime, the officer can either charge them, let them off with a warning or refer them to a pre-charge diversion program. These programs are designed to help youth in conflict with the law disengage with criminal activity by finding healthy outlets. There are programs like these across the country, but since the eligibility of the offender is up to police discretion, this leaves a lot of room for unconscious or conscious racial bias to tip the scale. 

"If we're able to have race-based data, we can actually see where there are racial differences and if that's the case, the way we can remedy this," she said.

The sample size in Wortely's study consisted of nearly 6,500 cases from 2007-2013 in an undisclosed police precinct, which the Toronto Star later confirmed and identified as the Durham Regional Police Service data. 

As a former youth diversion coordinator at the Durham Police Service, Wortley wanted to confirm a trend she noticed in her work -- Black youth being more likely to face charges and to have a permanent criminal record as opposed to white youth. The results of her study suggest that race has a small but significant impact on how youth are cautioned or charged for minor offenses. 

This is the first Canadian study to examine racial bias in referrals to pre-charge diversion programs. Most criminological studies looking at race-based data primarily consist of qualitative analysis, and less on numerical data that substantiates racial bias. This is for a number of reasons, but the largest barrier is limited access to this data. 

"By suppressing that data, we can't have a full nuanced conversation about racial bias within policing and even more generally, the criminal justice system," said Wortley.

Are we heading the right direction?

Recent events may suggest that Canada is starting to open up to disaggregated race-based data collection. The ongoing pandemic has brought the world's attention to social determinants of health, and how racialized communities are more vulnerable to COVID-19. 

"This is something that's being forced into the conversation; it's not something that's comfortable for the general population in Canada," said Lorne Foster, a policy scientist based at York University, "You can only force them to see it when you have catastrophes like this. That's where I begin to see the obstacles in terms of collecting race-based data in society." 

Foster has been at the forefront of race-based data collection for the last 50 years, and has worked on multiple projects with the Ontario Human Rights Commission. According to Foster, Canada is miles behind other countries when it comes to studying anti-Black racism in policing and the criminal justice system. 

"[Race-based data collection] really can be used to gain trust between police and particular communities... Good data helps win over decision-makers. Key decision-makers, if they have good data, are going to make better decisions," says Foster.

After working with the Ottawa Police Service in 2015, Foster found that Black and brown youth were disproportionately stopped by officers. This study was a result of a human rights complaint filed by Chad Aiken who was allegedly stopped by police on account of racial profiling in 2005. The result of that settlement led to a two-year commitment by the police force to collect race-based data on traffic stops.

"Canada typically sees itself as a race-blind society… They have what I call racial glaucoma. It's a situation where the Canadian population is really missing, or they are mentally blocked from racial perceptions, [and] basically they refuse to see race as a reality in Canadian society," Foster said.

Foster goes on to say that the most effective way to implement widespread collection of race-based data in the public sector, would have to start with provincial policy. He had a hand in consulting with the Ontario government to add these procedures in the Anti-Racism Act. However, there is still no mechanism to make race-based data collection mandatory nationally. 

"The more we uncover what happens in the criminal justice system, the more access you get," he said. "That whole process is opening up because people now recognize, at least in the criminal justice context, the potential for racial discrimination."

Lidia Abraha is a freelance journalist based in Toronto, whose work has appeared in VICE Canada, NOW Magazine, The Canadian Press and Exclaim! She is the recipient of rabble.ca's 2020 Jack Layton Journalism for Change Fellowship. Her work at rabble focuses on some of the issues most urgently affecting racialized and marginalized communities, notably racism in the criminal justice and policing system.

Image: Joan Villalon/Unsplash

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