Publications, opinions, and speeches
Confronting anti-Black racism through the courts, community activism, and government action
Published on 17/01/2022
This conversation is part of our series, “Advancing justice,” which explores the relationship between human rights, poverty, racism, and the criminal justice system.
In this month’s contribution to “Advancing justice,” Anthony Morgan joins Elizabeth McIsaac to talk about the issue of anti-Black racism in the criminal justice system in Canada and the role of municipalities in confronting anti-Black racism.
Anthony is a human rights lawyer and the manager of the City of Toronto’s Confronting Anti-Black Racism Unit. He has appeared at various levels of court, including the Supreme Court of Canada. Anthony has also appeared before two United Nations human rights committees in Geneva, Switzerland. He graduated from McGill University’s Faculty of Law, where he earned degrees in both civil law and common law. He’s also a graduate from the University of Toronto and is currently completing a Masters of Studies in International Human Rights Law at the University of Oxford.
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Elizabeth: Anthony, thank you for joining us here today. As I mentioned, you’re the manager of the City of Toronto’s Confronting Anti-Black Racism unit. I wonder if we can start with you telling us a little bit about the work that your unit is doing at the City.
Anthony: Sure. As the manager of the Confronting Anti-Black Racism unit, I work with a group of bright, committed, talented, and hardworking folks who are focused on supporting the City’s agencies, boards, and divisions and implementing the Toronto Action Plan to Confront Anti-Black Racism. This is an action plan that was adopted by Toronto city council in December 2017. It has 80 actions and 22 recommendations. The recommendations are high-level commitments articulated from Black communities. And then through a process of ongoing community consultations, the City was able to identify 80 different actions to fulfill those specific recommendations that came out of the voice of Black communities.
For added context, the City adopted the Toronto Action Plan to Confront Anti-Black Racism directly in response to what we informally refer to as the first wave of Black Lives Matter, which happened in the Toronto context specifically in 2016 when Black Lives Matter Toronto was raising awareness and leading advocacy in our communities around addressing systemic anti-Black racism and policing and justice issues, but also, more generally, on issues of social belonging for Black communities. And so it was after their particular protest in March 2016, where they led a protest outside of the Toronto police headquarters for two weeks, that caused Toronto Mayor Tory, chief of police Mark Saunders, and other city leaders to pause and say, “We’ve been around for some time, and so we know that Black communities have called for change for a long time, and there have been protests before, but we haven’t seen protests like this.”
One of the things that was particularly of note is that yes, it was led by Black young people, specifically, and especially Black queer and trans folks who were calling for change in the areas of policing, but that also hundreds of allies who were not Black-identified came forward to support and hold that space for two weeks. Which was a direct sign that this was not an isolated issue that Black communities were simply lamenting or what some critics said was just this very small sub-sub-subset of Black young people who in pejorative term, people said, had nothing to do, were just upset, and decided to do this.
But Black Lives Matter Toronto was able to demonstrate that there was so much more that was happening. It was not only Black communities that were facing this, but Torontonians from various walks of life were also recognizing that there is a level of wellbeing and belonging and outright service delivery and experience that Black Torontonians were not being properly afforded and getting to enjoy in the city.
That led to an extensive process of several months of community consultation that culminated in the adoption of the Toronto Action Plan to Confront Anti-Black Racism in December 2017.
Elizabeth: So a very serious City response to a deep community outreach to what was going on.
Anthony: Yeah, absolutely.
And building on what was decades of organizing and advocacy from predecessor organizations like the Black Action Defence Committee, which many folks will be familiar with led by Charles Roach, Lennox Farrell, Dudley Laws, and Sherona Hall in decades previous. And so it wasn’t entirely new, but it was a catalytic moment for the City of Toronto.
Elizabeth: None of this was overnight, and the leadership was certainly not overnight.
Speaking of leadership, you wear different hats. You’re at the City leading this important work and set of actions. But you’re also the co-founder of something called the Sentencing and Parole Project. I wonder if you can tell me a little bit about that initiative.
Anthony: Outside of my role at the City of Toronto, I’d like to remain committed to supporting our communities in various ways. And it’s actually, I would say, my interest in supporting communities that was where I had done a lot more of the work that I’ve been focused on in terms of addressing anti-Black racism.
It was all the way back in 2014, when I was co-counsel with Faisal Mirza. I’m a human rights lawyer by training – human rights and civil litigation lawyer by training. At that time I was working for a legal clinic, the African Canadian Legal Clinic, and we had gained intervener status in a case that went up to the Supreme Court of Canada called R. v. Nur.
That case was focused on addressing mandatory minimum sentences and specifically sought to strike down mandatory minimum sentences for first-time gun offenses. So an individual who’d been charged and convicted for the first offense of having a gun.
Now, this is not because we’re particularly happy to see guns in our communities. But what we were recognizing was that overwhelmingly these mandatory minimums in this area was disproportionately impacting Black people, particularly Black young people.
And it was accelerating the incarceration of Black communities at astronomical rates or rates we hadn’t seen before.
When Faisal and I worked on this case, we started really thinking strategically about how do we create ways to support the justice system, to be more responsive to the specific unique needs of Black communities so that we’re not just throwing the book at folks with tough-on-crime approaches to addressing challenges.
Through those years of conversation, after we argued that case, which did successfully strike down the mandatory minimum for a first-time possession, we said we didn’t want it to be just a one-off because there were so many other mandatory minimums on the books.
Eventually, as his litigation practice advanced and I continued on in my career, he connected with Emily Lam, another lawyer. And they determined that we collectively could envision a process of developing – there’s different names for them, but we call them enhanced pre-sentencing reports. Enhanced pre-sentencing reports are used to offset some of the limitations of the standard pre-sentence reports that are given to judges to make decisions on sentencing.
We have to acknowledge being inspired by the ways in which Indigenous organizers and community members, and of course lawyers and advocates, have developed the Gladue approach to provide a more fulsome understanding of the experiences of Indigenous folks.
We took that in principle and said, “How can we support judges and decision-makers to have a fuller picture of Black communities?” And so we came up with enhanced pre-sentencing reports that go beyond the typical pre-sentence reports and provide those to individuals who are to be sentenced before the justice system, but also folks who are coming up for parole so that parole boards can make decisions on the basis of more accurate, fulsome, complete information.
Elizabeth: What goes into an enhanced pre-sentencing report? And what makes it different from just a pre-sentencing report?
Anthony: A typical pre-sentence report looks like a typical government document: name, age, just the charges, and it could be a three-page government form, whereas an enhanced pre-sentencing report can be anywhere from 20 to 50 pages.
And what goes into it?
Well, we start with a social context history on the ways in which anti-Black racism manifests in Canadian society. So looking at the ways, policies, and practices that are embedded within our institutions, reflect or reinforce biases, attitudes, stereotypes, and prejudice that are directed towards people of African descent, and rooted in our unique histories of enslavement and colonization here in Canada. We use that as a framework of understanding anti-Black racism and then point to the ways in which anti-Black racism has manifested in education, employment, housing, health care, child welfare systems, immigration and detention, and the like.
So we take that social context information that’s relevant to that specific individual coming before the justice system. That’s the first part of the report.
The second part of the report then looks at the biographical history of that individual and where we see the linkages between that social history of Black experiences, of disadvantage or disproportionate negative outcome for Black folks. Where that individual might have, for instance, been in the child welfare system, or been pushed out of school, or experienced dropout, or was streamed into less academically rigorous areas within school, or experienced carding or racial profiling. We look at those different things and say, “Oh, wait, there’s these connections here. They’re not to be seen as just a part of this individual’s poor life choices, but circumstances that go beyond that individual.”
The enhanced pre-sentence reports provide those connections to help judges understand that when we’re seeing this person, we can’t just see them as somebody who is a child welfare survivor, who then made bad decisions in school and then got involved in some negative outcome. That might be a part of their story, but there’s so much more that was beyond their control.
And so when issuing a sentence, the judge needs to consider that.
The last part, I should say, what’s in those enhanced pre-sentence reports is also an identification of specific organizations in communities that are culturally specific and culturally responsive to be able to support Black community members in the particular ways that that individual needs support. It could be mental health support. It could be around job training and education. It could be support to be a stronger, more present parent.
We provide that specific information to the court so that they can also make informed decisions to make it clear that incarceration wouldn’t actually bring this person closer to the services that they need to be able to be a better contributing member of society.
We’ve been successful to some degree. We as a team are really proud of to help judges make those decisions and connect folks to services and community that would actually help them contribute more effectively.
Elizabeth: So connecting the individual experience into the systemic issues and then offering a pathway to effective support and resolution.
This has been, I’m assuming this is a bit of a trial, a pilot? How does this get embedded more widely? And maybe first of all, have you seen success? And where you haven’t seen success, what happens?
Anthony: We are still in the early stages.
The idea has been in the making for some years, as I mentioned. But crystallized in the Sentencing and Parole Project, officially it came together in 2020 just before the racial reckoning as an uprising. But I would say about a year before that, Faisal, Emily, and myself had been thinking about this.
And there’s a parallel process we were also informed by. Nova Scotia has developed a process led by professor Robert Wright, who’s a leader in social work. It’s called Impact of Race and Culture Assessments, so IRCAs, I-R-C-As. They’re a very similar process and approach. Ultimately, they’ve been able to intervene in cases to provide reports to folks to help judges make decisions that are less harsh.
The landmark decision in the Nova Scotia context is referred to as Anderson, which was really significant, where the Court of Appeal in Nova Scotia said very clearly that it is incumbent upon the justice system to be responsive to specific needs of the Black communities because of their unique histories of enslavement and colonization here on these lands that we now call Canada.
And now a parallel, but not exactly the same decision, happens in Ontario, and it’s called Morris.
In the Morris case, the unanimous decision of the Ontario Court of Appeal was released in December of 2021, where the courts made really strong findings on the existence and presence of anti-Black racism and that judges should be thinking about this when they’re making their sentencing decisions.
And so we have at the level of the Ontario Court of Appeal been able to make serious headway. But before we could get that important recognition, there were several first-instance decisions that have come through the courts that ended up informing how the unanimous bench of the Ontario Court of Appeal ruled.
I will say that there have been folks who’ve criticized the decision and saying that it didn’t go far enough in the Morris case. I value and I understand those criticisms. What I would say, though, if you look at where we started, if you look at how unfortunately little recognition there has been from the bench, very specifically, on the ways in which anti-Black racism manifests within all of our lives, but has a very particular impact on Black folks, this is actually quite a dramatic victory for Black communities if you think about what we’ve been fighting for over several decades for the mere recognition that anti-Blackness, and anti-Black racism is a part of the fabric of Canadian society, as uncomfortable as it is.
You have this strong decision from the Ontario Court of Appeal saying, you know what, there’s evidence that demonstrates this. And this is not a direct quote, I should be clear. My interpretation is the court is saying, we would not be responsible as a justice system if we were not at least thinking about how this could have impacted the individual offenders’ decisions when they participate in this series of events that brought them before the courts.
Elizabeth: And as the justice system works, you build on that to make it stronger and build and continue to build and evolve it. So it’s the first big step for the Ontario Court of Appeal.
Anthony: Well, thank you. I don’t want to take full credit for that though. Of course, it’s amazing advocacy because that case had a number of interveners.
It’s also not just Black community lawyers or organizers who wanted to see that move forward. There are folks who just saw the value in making sure that we have a justice system that is actually serving the people. And so there are a lot of interveners.
Faisal and Emily were the lead lawyers arguing the case but without the strong contributions from other interveners to say, “Oh, this is serious, this is real. And this will benefit. Actually, it looks like it’s about Black communities and in many ways it is, but it’s actually about all of us and what we want our justice system to look like. Do we want to continue to move in a direction that brings us too close to the disparities that we’ve seen in the United States of America? And that’s exactly where we’re heading.” And so with those other intervening parties, we were able to slow the course and, I would argue, change course.
Elizabeth: Well, and as with your description of how the City began its Confronting Anti-Black Racism unit, it’s about communities working together and pushing uphill to make the change and to get institutions, be they the courts or the municipalities, to act differently. And to begin to take action and new directions.
Anthony: Yes. And I could say arguably, there probably is no sustainable long-term change that doesn’t start or have tremendous beginnings with the people who are actually suffering the injustices the most. And so it’s after ongoing work in agitation at that level that often these systems end up recognizing the importance of making the changes needed to create better outcomes.
Elizabeth: When you describe the content of what’s in an enhanced pre-sentencing report, and you described the description of the context, and the social systems that Black youth may experience that leads up to their moment in court, many of these systems interface with municipalities. It comes back to your day job, right?
You talked about carding, you talked about educational systems, child welfare, treatment in recreational facilities, or housing access, or any one of the systems that the City has some ownership over.
Let’s connect up municipalities with the criminal justice system. What are the levers that they have, and that you’re working with perhaps in your role, to address the intersections of poverty and racism in our city?
Anthony: In my role at the City of Toronto, part of our activities focus on policing in the justice system. And one of the key spaces in which we are in ongoing conversation and working to make changes through what is referred to as the Anti-Racism Advisory Panel of the Toronto Police Services Board. And so the Anti-Racism Advisory Panel provides advice to the Toronto Police Services Board for them to consider. And when they adopt, they give direction to the Toronto chief of police for implementation.
Now the Anti-Racism Advisory Panel just got an expanded mandate that was adopted early in 2021. So we’re essentially the version two. There was a version one of the Anti-Racism Advisory Panel that emerged out of the Andrew Loku inquest.
Andrew Loku was a Black man who in midtown Toronto was killed in his home by a Toronto police officer, after the officer appeared at the home because of a neighbour complaint about noise that he was making.
Mr. Loku was in the hallway of his home. It was actually an apartment complex that was being rented to individuals living with mental health challenges. So the officers many say, should have, could have known that it was a mental health call that they’re actually responding to not a typical call where what you see should be interpreted as near violence or something else happening. Or at least they should have been prepared for that.
But ultimately what happens is the officer shows up on scene, sees Mr. Loku. And he was carrying a hammer when he was seen and within seconds of laying eyes on him, Mr. Loku was killed. And so out of that, there was a lot of the agitations and organizing by Black Lives Matter Toronto, so this kind of comes full circle.
So this happens in the summer of 2015, and Black Lives Matter Toronto picks up their advocacy around that time that ends up culminating in the protests of 2016. One of the major triggers was that the then attorney general had not read the SIU report after it had been released for some time about what led to the killing of Andrew Loku.
That was a kind of a last straw because it was such a painful moment for Black communities. For the attorney general to have that report for some time and not have read it by that point, led to the protests that we saw.
There was an inquest into the circumstances, and it was determined that it was a homicide. There were several recommendations that came out of that inquest. One of the significant ones was developing a community advisory body to the Toronto Police Services Board to ensure the establishment of an advisory panel to advise the Board on issues of racism and ensure that it’s not just anti-Black racism that Toronto police services understands, but the intersection between mental wellness and anti-Black racism.
The data shows that there is an alarmingly high rate of use of violence against civilians when they live at that intersection of being racialized as Black and living with a mental health challenge or presenting with a mental challenge. Similar for Indigenous communities.
Unfortunately, in terms of the data, we see that the rates of civilians being killed or being shot are the highest when a person is Black and living with a mental illness. And so the anti Anti-Racism Advisory Panel was struck to help address this. And one of their major intervention was to lead the Toronto Police Services Board to adopt a policy on collecting and reporting race-based desegregated data in relation to the use of lethal force.
Fast forward to Anti-Racism Advisory Panel 2.0 because the first panel served its term of two years. Now we have a new panel that has been established, and I co-chair that panel with a member of the Toronto Police Services Board, Ainsworth Morgan, no relation, just another community leader who also happens to sit on the Toronto Police Services Board.
Now we have an expanded mandate to address issues of racism, not just as it relates to anti-Black racism, but anti-Indigenous racism as well, and the intersections of mental illness, gender, religion, sexuality, however disadvantage should appear and be experienced within society and intersect with policing.
Elizabeth: So that’s a theme that has come up in a number of the contributions to this series: the need to decouple mental health intervention from police and the policing function. Obviously that has escalated and become more urgent as there’ve been several subsequent tragedies in our city related to that.
Is that a particular focus of this advisory or a much broader view of anti-racism, anti-Black racism, anti-Indigenous racism and the police services?
Anthony: It’s an important part, recognizing that the police aren’t always well serving. And, frankly, the data shows they’re rarely the best place to be intervening in those circumstances.
And so finding ways to get social workers, community workers, community elders, sometimes even our space healers who have a more meaningful relationships with folks in communities. And sometimes even family members, once properly supported and trained, can help intervene or calm an individual down.
There are options that exist within our society professionally and socially that haven’t been adequately leveraged. Also social service organizations, of course, that can be present and support. So our work in the Anti-Racism Advisory Panel is to help advance those conversations around, how do we make sure that the police, if our society insists that there’s a necessity for them to be called in certain circumstances, how do we make sure that they’re not being overly relied on? And that we’re not ending up with outcomes that we’ve seen of disproportionate shooting and killing of folks who sometimes just needed some time and space to express their frustrations and go through what could be a mental health episode, calm down, and then find a warm meal or warm place to sleep, go back to their families, or go back to a place where they can be safe, and folks around them can be safe.
Elizabeth: And to be able to get the mental health services that they may need. All of these issues are so complex. And as a result in your description, there’s a role for civil society players, some of the social community actors. There’s a role for municipalities, some of these are municipal services that we’re talking about. And some of these are provincially funded. Other orders of government have something to do with this. It may also have to do with our federal government. It’s complex in that way.
How do we coordinate that effort? Because that’s a lot of different players. And sometimes it’s jurisdictional football, it gets passed from one to the other, and we don’t see the coming together that’s needed in order to serve the individual.
Anthony: I really wish I had the answer for that. I think it’s something that we’re all working through to really be able to figure out, because there’s a lot of coordination. Our Canadian constitution, 1867, and of course repatriated in 1982. Even then, 1982, our society was very different. And so the distinction and divisions between the province and the feds, and even having the municipality as a creature of the province. Some would say that there’s levels at which it’s outdated, is not consistent with, for instance, how significant a role cities play in the everyday lives of individuals and the delivery of services and the closeness of which they operate.
There are a lot of hiccups that still need to be worked out. So how do we coordinate? I think open dialogue, creating active spaces where those institutions, the province, the federal government, and the municipality, public servants and politicians talk more openly about where there are challenges and where they need support from each other.
But then also find ways to more effectively communicate that out to community organizations, to individuals in community, so that there are not misaligned expectations. Because sometimes folks will go to cities with expectations about what they can and should be doing. And then the city might say, “Well, that’s the province, that’s the feds.”
That’s what’s very frustrating for folks because they don’t care. Often they just need or want the service, their families, their communities just need or want the service. I think it is definitely incumbent on all the public servants, on the politicians, for us to work out our differences.
But just make sure the services are being delivered.
And here’s where I turned to some of my learnings of working for and serving some Indigenous communities. When I was in private practice, there is what’s referred to as Jordan’s Principle in the child welfare context. Jordan’s Principle can be complex, I don’t want to give a full-blown lecture on it, but essentially the idea is because Indigenous folks fall primarily under federal, almost exclusively under federal jurisdiction in terms of Indigenous services, but when it comes to health care services, that’s primarily provincial.
What had been happening for decades was that children, in particular, had been underserved, not served, or very poorly served. What would happen as a child would present themselves for healthcare services, then the province would squabble with the feds around who’s going to pay for it.
Is it going to be the feds? Because the young person is Indigenous, and so they fall under federal funding.
Or because they’ve shown up at a hospital, and hospitals and healthcare are covered under provincial services, is it going to be the province?
And so while this battle was happening, children and whole communities were being terribly served.
But Jordan’s Principle was eventually acknowledged and recognized as law. And Jordan’s Principle says: “You know what, government, just provide the service. Figure out who’s going to pay for it after. Do not let the squabble around not knowing who’s going to pay stop or slow your ability to provide the service. Just immediately, it’s a young person from an Indigenous community. Serve them, give them what they need. Give them what all Canadians are entitled to, or all folks within this jurisdiction are entitled to. And you’ll figure out the pieces after.”
I think there’s some value in thinking about how Jordan’s Principle could and should inform other jurisdictional squabbles, frankly, that we get into when it comes to serving broader population.
Now I want to be careful in saying that I don’t think that every community’s relationship to the government is the same as Indigenous communities and therefore we all should get the same treatment. That’s not what I’m saying. I’m just saying that there are principles there that show that we can find ways to resolve some of these constitutional challenges and ways that ultimately help the well-being of vulnerable people.
How do we build on that knowledge and expand it so more vulnerable communities, more folks who are experiencing disadvantage can be properly served?
Elizabeth: The constitutional “Do not prevent an individual’s human rights from being realized.”
That’s the work that we’re trying to push forward. How do we bring a human rights’ approach to thinking about these things? And I think it’s things like Jordan’s Principle, it’s things like Gladue, it’s things like an enhanced pre-sentence report, where you’re bringing the individual’s lived experience to the centre of the decision, of the action to be taken. And that puts the dignity of the person in the centre. And that’s where we have to be.
Anthony: And that’s critically important. And not asking for this sort of artificial splicing of the individual.
There are people who are Black and Indigenous, right? And so we find where these challenges exist, where you hear some unreasonable conversation about who’s going to serve this person.
Well, you can’t say they’re more Indigenous than they are Black. If you ask them, they’re as much Indigenous as they are Black. Or you can’t say, “Oh, this person. Do we serve them as a woman or do we serve them as an Indigenous person?” They are an Indigenous woman.
We can’t splice things the way in which our systems often require folks to contort themselves in inhumane ways to get services that they deserve.
We have to build past these limitations in the way in which we function through government to make sure that people are being served in their full self. So they do not have to cut off parts of themselves to get service. And that goes to the full spectrum. Queer and trans folk will also have lived at different intersections of identities.
We have to be building systems that are adequately responsive and supportive of these individuals and their wholeness. And that, like you said, goes to the core of their dignity.
Elizabeth: I think that’s a perfect final word. Anthony, I’m so grateful for your time this afternoon. I think you’ve shed a lot of light on some of the questions we’ve been coming to and trying to think through as we look at the “Advancing justice” series.
I’m grateful for your time this afternoon, and for the experience you brought to the conversation.
Anthony: I really appreciate the opportunity to share with you, Elizabeth. And it’s always a great opportunity to chat.