The Charter turns 35

Charter anniversary celebrations neglect Black Canadians’ lack of access to protections

Enshrined rights and freedoms are not enjoyed equally across Canada
Photo: Wikimedia Commons

The 35th anniversary of the passage of the Canadian Charter of Rights and Freedoms into law was marked on April 17, 2017. In a steady stream of commemorative events in the same spirit of Canada 150, Canadians have been gathering across the country to discuss the significance and celebrate the successes of the Charter as a central pillar of our aspirationally just society.

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These events are important because they provide necessary public spaces for critical reflection on our collective social values as expressed through the Charter’s impact on the lives of Canadians and on our country as a whole. But as more and more of these celebratory events emerge, a critical question needs to be asked: are Black Canadians invited to the party?

Based on the gatherings that I have attended or seen advertised, it is becoming increasingly clear that the chances are between slim and none that an audience member at a speaking event, panel discussion or film screening, or viewer of a nightly news segment honouring the Charter’s anniversary, will hear from an African Canadian as an expert or authoritative speaker.

Full and fair protections still lacking

The underrepresentation of African Canadians among the leading voices in this timely national conversation on the Charter matters because of what it inadvertently exposes about the relationship between the Charter and Blacks in Canada.

As Canadians, we proudly identify with the Charter, but as Black people, we are largely left without its full and fair protections.

At best, the relationship is a conflicted one, as African Canadians are both disproportionately impacted by and seemingly situated outside of the Charter’s reach.

While many African Canadians are among the first to proudly hail the values and virtues of the Charter, they continue to be exposed to alarmingly disproportionate rates of racial profiling, carding, incarceration, and death by police use of lethal force, especially when living with a mental health condition.

As Canadians, we proudly identify with the Charter, but as Black people, we are largely left without its full and fair protections.

Racial profiling continues

The Charter has rightfully emerged as a unifying symbol of Canadian national pride.

This is in large part because of the unique and visionary ways that it constitutionalizes considerable civilian protections against the awesome power of the state, and secures broad freedoms aimed at ensuring that organizations, institutions and officials of government do not unjustifiably interfere with individuals’ inherent human dignity, equality and worth.

Despite this, racial profiling continues to fracture relations between African Canadians and police services across our country.

“Driving while Black” and “shopping while Black” have become common phrases within African Canadian circles to describe the experience of being subjected to heightened scrutiny, surveillance and monitoring by police and security services. In every Canadian city where statistics have been published, African Canadians are found to be the primary targets of carding and street checks, the police practice of arbitrarily stopping, interrogating, documenting and indefinitely warehousing data on civilians not suspected of being involved in a crime. African Canadians are also found to be subjected to harsher and more restrictive charges, bail conditions and sentences than non–African Canadians implicated for the same crimes committed in similar circumstances.

Law and order and injustice

These realities conspire to create a condition where African Canadians now make up just 3 per cent of the overall Canadian population, but approximately 10 per cent of the federal prison population.

African Canadians are not being afforded equal opportunity to enjoy Charter-enshrined protections

We are also similarly overrepresented in the provincial prison populations of Ontario, Quebec and Nova Scotia. Once incarcerated, African Canadians are subjected to segregation at accelerating and greatly disproportionate rates compared to others, and also have a higher than average likelihood of dying while in custody.

African Canadians are not only charged and convicted, but also killed by police at disproportionately high rates. This has been a point of raucous debate and protest led by Black Lives Matter, following the police-involved killings of Black men by Canadian police officers. Among these victims are Andrew Loku, Jermaine Carby, Abdirahman Abdi and Jean-Pierre Bony.

These experiences are not entirely unique to African Canadians, as the criminal justice system has visited similar or more significantly damaging injustices upon the lives and communities of Indigenous peoples. The point remains, however, that current outcomes demonstrate that African Canadians are not being afforded equal opportunity to enjoy Charter-enshrined protections against arbitrary detainment, subjection to an unreasonable search or seizure, and discriminatory treatment on the basis of race, colour and national or ethnic origin.

An invitation to change

With African Canadians having such grossly disproportionate contact with police and the broader criminal justice system, Canadians should seriously consider whether anniversary conversations on the significance of the Charter can be credibly and ethically conducted without the input of African Canadian perspectives.

Are African Canadians truly party to the Charter?

But beyond asking whether African Canadians are invited to the ongoing commemorative Charter parties, there is a deeper question all Canadians have to confront: Are African Canadians truly party to the Charter?

My hope is that over the next 35 years and beyond, African Canadians can come to sincerely feel welcomed to celebrate the Charter as much as any other Canadian. Herein lies the African Canadian community’s invitation for our country to change.

We longingly await Canada’s RSVP, as we wish to eventually celebrate the Charter together.

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