BLACK IN THE JURY BOX: YOUNG, GIFTED AND BLACK
FROM DECEMBER 2021 ISSUE OF WEST END PHOENIX
After the acquittal last month of Kyle Rittenhouse, an 18-year-old white man who fatally shot two men during unrest in Kenosha, Wisconsin, following the police shooting of Jacob Blake, U.S. President Joe Biden told reporters that he stands by the jury’s decision, saying “the jury system works.”
But the jury system does not work. Rittenhouse was acquitted through the same broken system that sees white defendants disproportionately cleared of wrongdoing. Because he was white, studies have shown he was significantly less likely to be viewed as guilty compared to Black defendants. His jury was also mostly white, which supports the studies that found white jurors are less likely to convict white defendants.
These contributing factors aren’t specific to the U.S. In Canada, our jury system faces the same issues, especially for racialized people. Over the past year, this series has looked at Ontario’s jury system and its effect on Black people in Canada: the socio-economic and legal options that make it difficult for Black people to serve as jurors; the dangerous role that implicit bias, which is often not recognized by the courts in the jury selection process, plays in convictions; and the media’s power to reproduce negative stereotypes about Black people, which then affects jurors.
If there have been positive changes to the jury system, they are thanks to the work of lawyers, advocates, educators and jurors who have pushed for policy changes such as Bill C-75, the federal government’s aim at jury reform following Gerald Stanley’s acquittal. And Black lawyers, who are underrepresented in law, are dedicating their careers to eradicating anti-Black racism in the justice system through education, programs and litigation. Whether it be addressing unfair jury selection in R v. Chouhan, arguing in R v. Morris for social context to be considered when sentencing Black offenders, or standing up for Black Canadians’ rights before the United Nations, the next generation of Black lawyers are making big changes in the justice system through anti-racist and intersectional law practices.
Anthony Morgan
Human rights lawyer and manager, City of Toronto’s Confronting Anti-Black Racism unit
If you’ve been following stories about anti-Black racism and the legal system in Canada, it’s likely you know Anthony Morgan’s name. Morgan is a lawyer who specializes in anti-racist human rights advocacy and anti-Black racism. He previously worked at the African Canadian Legal Clinic (ACLC) as the policy and research lawyer and as an associate at Falconers LLP, a leading human rights firm, where he focused on state accountability. He’s also a freelance contributor who writes about antiBlack racism in policy and the justice system for publications including the Huffington Post, CBC, The Globe and Mail, and the Toronto Star.
“I try to bring fact-based and experiential understandings of Black communities through the justice system, education, advocacy, litigation and public writing,” he says. Morgan aims to raise public awareness around what it means to be Black in Canada. “A big part of the history of Black people in this country is a history of erasure, so I try to unpack that, specifically in relation to the justice system, so that better outcomes and decisions can be made.”
Since 2019, Morgan has been the manager of the City of Toronto’s Confronting Anti-Black Racism (CABR) unit, which is responsible for the implementation of the Toronto Action Plan to Confront Anti-Black Racism – a plan intended to better the lives, experiences and outcomes of Black people in Toronto. “The aim of the unit is to support divisions and agencies of the city to implement the action plan so that it’s not on the side of somebody else’s desk or just lumped in with some other strategic initiatives of the city,” Morgan says.
Morgan has advocated for the rights of Black people in Canada at various levels of court, including the Supreme Court of Canada. In 2016, he appeared before two United Nations human rights treaty bodies in Geneva to present his report on Canada’s disenfranchisement of Black people. His arguments made an impact on the UN’s observations and recommendations on anti-Black racism in Canada. “I was really pleased and humbled to be able to participate in that process that led to those concluding observations,” Morgan says. “The recommendations are not binding, but they offer a lot of strategic leverage for organizations across this country that serve Black people.”
Morgan’s work has been recognized by lawyers across the country, and in both 2016 and 2017, he was nominated as one of Canada’s Top 25 Most Influential Lawyers by Canadian Lawyer magazine. “I think it’s important to recognize that the criminal justice system has had such a nefarious impact on our communities,” he says. That’s why he uses his work in the courts to contextualize the historical, individual and collective experiences of Black people. Morgan says this helps the courts understand what it means to be Black in Canada rather than relying on stereotypes, such as Black people being violent, aggressive or of less intelligence than white people, which are used to determine outcomes in cases. “All these things end up interacting consciously or unconsciously in the minds of lawyers, judges, police officers, defence counsel and other actors in the justice system.”
Morgan is pursuing a Master of Studies in International Human Rights Law at Oxford University. His research focuses on how to leverage international human rights laws and principles, namely around work, housing, employment, natural resources and justice, to advance racial justice in Canada. He’s especially interested in how these skills can help contribute to conversations about reparative justice in Canada – the process of holding Canada to account for more than 200 years of slavery and its continued legacy on the socio-economic conditions of Black people.
“Often we think the experience of Black people in Canada is good enough because it’s not as bad as what’s happening in the U.S. We also think we have a more advanced human rights system than everyone else’s. So our standards are actually quite low,” he says. “Through my experience at Oxford, I’m now connected with international lawyers across the country and learning from their experiences, as well as international rights literature.”
Though fighting for the cause once excited Morgan as a young lawyer, he now has a new motivation: his three-year-old daughter.
“I don’t want her to be having the same conversations about Blackness and the challenges of being Black in Canada,” he says. “I want to make sure that my daughter and her generation of Black people have better living conditions and experience a higher form of justice.”
Samantha Peters
Lawyer and director of legal initiatives and public interest at Black Femme Legal
Samantha Peters is fearlessly forging her own path in law.
As a Black queer femme advocate, educator and lawyer, Peters views and practises law through a lens of critical race theory, intersectionality and queerness.
In 2020, Peters became the first-ever Black legal mentor-in-residence at the University of Ottawa Faculty of Law. She is also the national vice-president of equity and anti-oppression at the Canadian Association of Labour Lawyers, a member of the City of Toronto’s LGBTQ2S+ Council Advisory Body, and a volunteer lawyer at The 519, a non-profit agency serving the LGBTQ2S+ community in Toronto. Currently, she is the director of legal initiatives and public interest at Black Femme Legal, a project funded by the Law Foundation of Ontario that takes a Black femme-centred approach to providing legal and non-legal resources and support to Black LGBTQ2S+ workers across Ontario. “Because femmes are often not respected in queer spaces, I wanted an intentional space where their experiences can be heard, advocated for and supported,” she says. “I unabashedly centre Black femmes in everything that I do.”
Before being licensed to practise law in 2020, Peters took a two-year hiatus to focus on legal education work, legislative research and law reform initiatives, with the purpose of exploring the intersection of law, education and policy. It’s work that she feels most in alignment with. “My [law practice] is more feelings-based, community-based and caring,” she says. “I centre the livelihood and desires of black queer femmes that I know and that I support.”
For Peters, meeting other queer and Black lawyers is an important support system in the notoriously white and heterosexual culture of Bay Street.
“It just makes me feel less alone in the legal profession,” she says. “And I’ve also found a group of Black, trans and non-binary lawyers. It’s incredibly soul-nourishing to be surrounded by a group of brilliant, caring, passionate, fierce Black, queer, trans and non-binary folks in the legal profession who are really trying to transform this system in a way that I could have never imagined.”
Last summer, she created and taught a course at the University of Ottawa called Intersectional Theory and Practice in the Law, and was surprised that the majority of students were racialized, queer or women – all groups underrepresented in law school and as lawyers. “It was really incredible to be among them – to learn from them and to learn with them,” she says.
In addition to her law practice, Peters writes about topics including gender-based violence, workers’ rights and social policy for outlets including CBC, Global News, Huffington Post, Flare and the Toronto Star. In 2020, she wrote an award-winning essay for the Canadian Bar Association’s Women Lawyers’ Forum called “Making Social Context Education Mandatory: Why Cultural Competency Should Matter in the Courtroom.” The paper advocated that all judges should be required to take social context education to better understand how issues such as gender, race, ethnicity, sexual orientation and disability could affect a case. This would help judges make more informed decisions and rulings, as well as help to build trust in the justice system for marginalized groups.
Social context is increasingly being considered in sentencing Black defendants, including R v. Morris, and in sexual assault cases. (Amendments to the Criminal Code and the Judges Act are now requiring newly appointed judges to take continuing education on matters related to sexual assault law and social context.)
As if she weren’t busy enough, Peters is pursuing her Master of Law at Queen’s University, with a focus on political and legal thought, and is planning to make her paper the basis of her thesis. She’s interested in legal education, but also a law practice that centres her values of care, community and justice for the communities she both belongs to and serves through her work. “I really love to continue my journey in education, but I really do love a non-traditional practice,” she says. “I love being able to practise law in ways that don’t have me operating in silos – I want to still firmly be in community, be connected to the law in some respect and use my legal education and skills in ways that are transformative and helpful to systemic change and community mobilizing.”
Nana Yanful
Legal Director, Black Legal Action Centre (BLAC)
As a lawyer, Nana Yanful has used her passion for addressing anti-Black racism, anti-discrimination and human rights in the criminal justice system.
A 2020 Lexpert Rising Stars: Leading Lawyers Under 40 award-winner, Yanful was called to the bar in 2014 and spent three years practising criminal law at Simcoe Chambers in Toronto. Her writing on policing and equity has been featured in Spacing magazine, the anthology Subdivided: City-Building in an Age of Hyper-Diversity and For the Defence.
Yanful is currently the legal director at the Black Legal Action Centre (BLAC), which offers free legal services to low- and no-income Black Ontarians who are facing legal issues related to anti-Black racism. Founded in 2017, BLAC is still fairly young, but its impact on improving well-being and justice for Black people in the courts is significant.
BLAC and the Canadian Association of Black Lawyers (CABL) were joint interveners in the Ontario Court of Appeal case of R v. Morris. In 2014, Kevin Morris, a 22-year-old Black man with no criminal record, was in a parking lot with three other Black men when police incorrectly believed he was involved in a nearby home invasion. Morris ran from the police and discarded his jacket, which held a gun. He was hit by a police car, arrested and charged with firearm offences.
Morris was given a reduced sentence of 12 months by Justice Shaun Nakatsuru after he considered how anti-Black racism in Ontario and Morris’s social history played a role in his life. The Crown, which appealed, argued that Judge Nakatsuru relied too heavily on social context.
During the appeal, BLAC called for a standardized framework in which judges should consider social context about anti-Black racism in every single case and then determine if and how it has affected the defendant’s choices. However, in its decision in October, the Court of Appeal rejected BLAC’s suggestion to create a framework for judges to consider in the sentencing of Black defendants and increased Morris’s sentence to two years less a day. “Disappointingly, the court did not require sentencing judges to consider anti-Black racism each and every time they sentence a Black person,” Yanful says. “Without it being a requirement, BLAC is concerned that courts may not apply evidence of anti-Black racism consistently.”
Despite the setback, BLAC is continuing its ground-breaking work by looking at the school-to-prison pipeline. The Links to Justice Research and Advocacy Initiative focuses on anti-Black racism in the education and justice systems, and will be a province-wide project that will help BLAC better understand the factors that push Black youth into the criminal justice system and the supports Black families need to combat that. “We know that Black people are more likely to be stopped, questioned, charged and arrested by police as compared to their white and non-racialized counterparts, and so we are interested in how the education system plays a part in that disproportionate treatment,” she says. “Ultimately, we hope to use the research to better advocate for meaningful change within our justice and educational systems.”
BLAC is also part of the “Fresh Start” coalition, a team of 60 civil society groups who are urging the federal government to implement a “spent regime,” which would automatically seal a person’s criminal record if they have successfully completed their sentence and lived in the community without further criminal convictions. “It would be a concrete step toward addressing anti-Black racism in the criminal justice system, in the workplace and beyond,” Yanful says.