Urban African Canadians: A Qualitative Study of Serious Legal Problems in Quebec
Intersections and Connections Between Problems
The term intersectionality was coined by the African American lawyer and legal scholar Kimberlé Crenshaw in 1989. It also emerged out of critical race theory, which was developed by African American lawyers in the U.S. as a way of identifying and understanding the structural and systemic nature of racism (Coastan 2019). Drawing on legal cases involving African American women, Crenshaw challenged the presumed neutrality of the law and the narrow ways in which the legal system interpreted the experiences of Black women. According to Crenshaw, the legal system neglected the reality that Black women experienced discrimination and oppression both as women and as African Americans. In opposition to the “single-axis framework,” Black women can experience racial discrimination in the same manner as Black men, and can experience gender discrimination in the same manner as white women. But “often they experience double-discrimination – the combined effects of practices that discriminate on the basis of race, and on the basis of sex,” and simply as Black women (Crenshaw 1989, 149). In this sense, Black women are “multiply burdened” (Crenshaw 1989, 130). Intersectionality has since been applied more generally to incorporate gender, race, class, sexuality, and other forms of identity (Coastan 2019). For the purposes of this study, and in relation to the testimonies of its respondents, intersectionality is useful for analyzing how racial discrimination and anti-Black racism are, or at least can be, tied to discrimination based on class, gender, and other social factors.
Of course, this raises questions: how do we know when racial discrimination is racial discrimination? Were the experiences of the participants the result of racism, or was race merely incidental, or even non-existent? The analysis of systemic racism suggests that racism is part of the “everydayness” in the lives of people of African descent in a white dominant society, shaping daily encounters in education, employment, the judicial system, sports, entertainment, etc.
As the legal scholar and theorist Sherene Razack argues, certain groups of people, including the racialized, have been “evicted” as part of what she describes as the “living dead.” This means that, while they may have, de jure, access to the legal rights and entitlements of citizenship in Canada, de facto they are systematically excluded on the basis of race, class, and gender, and often all three (Razack in Khan and Kouri-Towe 2009). This eviction is tantamount to what, in relation to refugees and detainees, Giorgio Agamben and Paul Gilroy have described as a permanent state of exception and suspended law (Rauff 2004, 609–10; Agamben 2000, 8–9, 22–5; Gilroy 2000, 84, 93, 283). In other words, the Canadian legal system has “aided and abetted racism and racial discrimination” of people of African descent (Thornhill 2008, 332). And as legal historian Barrington Walker illustrates, this phenomenon can be dated back to the days of slavery in Canada (Walker 2020, 5, 27). This phenomenon coincides with sociologist Cecil Foster’s analysis of how whiteness in Canada is associated with purity, innocence, and progress; and blackness with the wild and untamed, and outside the boundaries of Canadian society (Foster 2008, 414–29), including the legal system. It is through the lens of intersectionality, eviction, the state of exception and suspended law, and rooted in the historical experiences of people of African descent in Canada, that we consider the testimonies of each respondent.
Lastly, and as the testimonies of the participants in this research attest, we can also think of intersectionality in how a particular legal problem can, and often does, spill over into other aspects of an individual’s life: how losing one’s job because of work harassment can lead to the loss of a home and a breakdown in a marriage and the loss of family ties; how calling the police could mean the victim getting arrested instead of the perpetrator of the assault; how previous experiences with the justice system and lawyers wear down the desire to fight, resulting in resignation and defeatism; and how not being able to access correctional programs, in English, can affect a prisoner’s parole, and, therefore, their life chances.
Legal Representation Assistance and Cost
Several participants discussed the poor legal representation that they received and the prohibitive cost of a “good lawyer.” This is consistent with legal scholar Sara Sternberg Greene’s analysis (Greene 2016, 1290) that good lawyers are costly, and that free legal counsel (legal aid lawyers) often results in poor quality legal representation (Ibid., 1, 292).
When Oliver’s dog damaged the floor of his apartment, he was also accused of stealing a mattress and plates from the apartment by his French-Canadian landlords. On the day of the trial, with no prior warning, his lawyer advised him that if he pleaded guilty he would receive a small fine and that his case would not go to trial. Instead, the fine amounted to $1,500 (the amount that is still outstanding because of Oliver’s limited financial means), 200 hours of community service, and a criminal record. Oliver’s legal problems were then compounded by the fact that he missed an opportunity to appeal his case because he was not advised about the appeal process.
Nina paid a lawyer a significant retainer, but her lawyer failed to show up to court during her trial. Another lawyer ignored key evidence, failed to call a witness to court, and addressed the court in French despite the fact that Nina does not speak the language.
Thomas, too, complained that he received poor legal representation. He was denied permanent resident status, and attributes this to his appointed lawyer, who was not committed to his case. His asylum case was supposed to be relatively straightforward, but his lawyer did the bare minimum and had very little contact with his client. In Kathleen’s case, when her probationary period at work was prematurely terminated, she contacted her union, but was ineligible for assistance because she had not passed her probation period and was therefore not technically a union member. She received the bare minimum of legal support, and she did not have the financial means to pursue her case further.
Before his recent release, Paul contacted a prison lawyer to have an unwarranted gang affiliation removed from his prison file. Gang affiliations can negatively affect parole possibilities and prison privileges. The issue was resolved with support from a prison-appointed lawyer who advised him on how to have the gang tag removed, but it was a long process that was only finalized just before he was released from prison. Frederick, Frantz, Oliver, Toussaint, Kathleen, and Jean-Baptiste could not afford to hire a private lawyer. According to Toussaint,
TranslationNot having the financial means definitely limits access to the justice system. I don’t have the money, so now it’s up to me, a human with no background in the field, to do this on my own. I wonder if I have the strength and the ability to do this.
In Frederick’s case, he decided to report his professor’s remarks and behaviour to the director of the program, who advised him that he was a guest in the program and that he needed to make more compromises to integrate into Quebec society. In essence, Frederick was being told that the problem rested on the students’ shoulders, not the professor’s. Although some of the African students wanted to pursue a more formal legal course of action, ultimately they decided against it out of fear of reprisals and due to limited time and financial resources. The professor continued to demonstrate preference for the local students (white Quebeckers). However, Frederick believes that his grades were fair, and that they did not reflect the racial discrimination he experienced in the classroom.
In Canada, there is controversy around the quality of representation provided by legal aid lawyers, depending on the service delivery model (Zemans and Amaral 2018). It is acknowledged that legal aid lawyers are overworked, in part due to a shortage of lawyers. The result is that lawyers take on too many cases at once. As research on this phenomenon in the U.S. suggests, this ultimately means that they cannot give their clients the legal attention they deserve (Greene 2016, 1290–2). As a result, clients are often advised by their lawyers to plead guilty, as in Oliver’s case. In Frantz’s case, not having the means to hire a lawyer (he was not eligible for legal aid because he is gainfully employed) may have cost him the custody of his child. For Frederick, a lack of funds meant that he chose to not pursue a case against the professor he accused of racism. Although hiring a private lawyer by no means guarantees success in the courtroom, a fully committed and competent lawyer no doubt increases the odds, particularly in a context in which people of African descent have been historically disadvantaged by the legal system.
Child Custody
Discrimination within the child welfare system and in relation to adoption is a well-documented historical phenomenon in Canada (Dubinsky 2008; Maynard 2017, 190–2, 204–05), and has been one way in which Black families have been ruptured. According to a 30 November 2020 report (Constats et Orientations 6) conducted by the branch of the Quebec government responsible for child welfare, Black children are over-represented in the child welfare system and the system is not sufficiently adapted to meet the needs of “ethno-cultural” and linguistic minority groups. African-Canadian and Indigenous youth are over-represented in the province’s child welfare system and the services often fail to adequately represent their cultural and social interests. In Frantz’s case, he was denied regular access to his child from the time he was born because the child’s mother, whom he was no longer with, had a substance use disorder. He plans to continue the fight for custody and visitation rights (“I would take my child back any day”) if and when he can afford a lawyer, but the entire process led him to the conclusion that:
If you don’t have a big name, if you don’t have the right salary, if you don’t have the right colour you might be at risk of not being heard at all. Inside the legal system and inside social services there’s a lot of bias and prejudice.
Police and Prison Guard Violence
Police brutality has been a recurring theme within Canada’s Black population. It is therefore not surprising that a number of participants spoke about police violence, and in one instance, prison guard violence. Jean-Baptiste’s experience of being choked and intimidated by the police during his arrest for mischief was also compounded by poor legal representation. He reported that he had very little communication with his lawyers, and received the bare minimum of legal advice and support. In his own words: [Translation] “To them, we’re just a number. In their mind, you have done something... You’re supposed to be treated badly, not be heard, be left to your own devices.”
He continues:
TranslationThey need better training in the justice system. Even if they’re arresting a criminal, they need to know how to act and to at least have some compassion, not to treat the person badly. In the end, we’re all humans, not animals.
In June 2015, Salif called the police about a roommate who was being aggressive towards him. Instead of addressing the issue with his roommate, the police took Salif into custody on the grounds that he had failed to respond to a letter from Immigration Canada requesting a meeting. While in police custody over two days, he was severely beaten by officers and was sent to the hospital.
Fred experienced physical violence at the hands of prison guards, not police officers. Racially motivated violence against Black prisoners has been well documented and is part of a wider process of Black criminalization leading to incarceration (Maynard 2017; Austin 2021, 109–12). Fred’s case was particularly egregious and he is still fighting for legal justice.
Employment and Work
Legal issues related to employment were mentioned by several participants. In Toussaint’s case, a fellow employee called Toussaint several names, including the “n-word” while other employees and customers were present. Some of them appeared to be shocked and appalled by the encounter they witnessed, but none came to Toussaint’s defence. When Toussaint made it clear to the co-worker that his behaviour was unacceptable, the supervisor responded that it was appropriate at times when referring to certain individuals.
Like Toussaint and Salif, both Nina and Donald discussed problems they experienced in the workplace. Nina’s back injury was compounded by the insensitivity of her employer and union to her circumstances, all of which she attributes to both racism and the fact that she is an Anglophone. In Donald’s case, and given the fact that schools in Quebec are legally secular, it is perhaps not obvious to what extent his legal issues were the result of his religious “proselytizing,” racism, and/or the fact that he is an Anglophone, and he himself downplayed racism as a root cause of his problems. That said, given the intricate ways in which systemic racism functions, it would be hard to imagine that race did not play a role, to whatever extent, in that process.
Similar to the experience of other participants, a lack of funds was a major impediment to receiving a just outcome for Donald. As he suggested, “[The legal system] is there to protect everyone, but sometimes it’s biased” if you do not have the financial means to hire a private lawyer. Initially, because of a confidentiality agreement, he was not allowed to seek counsel outside of the union while his case was pending. Later, he was unable to pursue legal action in court because he could not afford to hire a private lawyer, and did not qualify for legal aid.
Housing
Only one of the participants discussed housing. Angela, a single mother, believed that her landlord was trying to evict her under false pretenses, perhaps for financial gain (raising the rent by taking on a new tenant). She received advice from the provincial government agency that governs housing issues, to enquire about her legal rights, but it was the bare minimum. As a result, she was forced to navigate the system on her own or by drawing on the support of friends.
Health
Health, including workplace accidents, touched the lives of three participants. In the aftermath of his arrest, Jean-Baptiste was later transferred to a mental hospital for evaluation, but received no medical attention for a swollen foot, until he was diagnosed with schizophrenia and substance use disorder. His experiences through all this were difficult and debilitating. The problem was amplified by inadequate psychological support when it was obvious that he was in crisis. In the case of Salif, his work injury led to a permanent disability because of the delay in his medical procedure. Salif believes that the hospital was guilty of negligence, leading to the amputation of his toe. He contacted the organization that oversees medical complaints in Quebec, and was instructed on how to provide a detailed account of his experience.
The hospital administration denied that the hospital had been negligent, and in 2016, Salif hired a lawyer. The lawyer nonetheless advised him that he could not claim negligence, never met with Salif, and only saw his injuries in photos. The lawyer essentially sided with the hospital and Salif was unable to appeal his case because his lawyer was unavailable for several months. By the time he sought legal counsel elsewhere, the statute of limitations for his case had expired. He believes that his lawyer purposely made the time run out and that the hospital deliberately caused the delays, working with the oversight body.
Immigration and Citizenship
Historically, immigration and citizenship have been used as a tool to police and ultimately limit the presence of Black lives in Canada, often using detention and deportation as the ultimate form of control (Austin 2013, 81, 149–53; Maynard 2017, 158–61). Salif was arrested because had failed to respond to a letter from Immigration Canada about his refugee claim. He contacted Immigration Canada, which confirmed that it had indeed sent him a letter in November 2014, but Salif insists that he never received it. He was then told that he had to report to Canadian immigration, first every month, and then every three months, which he did, but his permanent resident application was nonetheless rejected in 2016. It was again rejected in 2018, despite Salif having gathered more than 20 letters of support in his file. He believes that his initial rejection was tied to the fact that he had been arrested in 2015. He has since reapplied and is now a permanent resident.
Thomas believed that his asylum would be straightforward, but as we have seen, a lack of adequate legal advice from an appointed lawyer contributed to his application being rejected. He is currently appealing the decision with another lawyer, but his first experience with the legal system in Canada was disappointing. In addition to hiring another lawyer, he has been working on the presentation of his case and relying on friends and other sources for support.
Criminal Violence
Oliver was recently assaulted by a roommate, and when the police intervened, as in Salif’s case, Oliver was the one charged with assault. He believes that he was charged because of a previous record from a high school incident and that his brother’s record was used against him. His issues were compounded when he was poorly represented by a legal aid lawyer who barely spoke English and, in Oliver’s words, was “incompetent.” The lawyer encouraged Oliver to plead guilty, which he did. He was given a year’s probation and community hours, but he believes that, if he had been able to afford a better lawyer, the outcome of his case would have been different. He also wanted to appeal the case, but he was not advised about the process and missed the appeal deadline.
Language
Language issues are particularly prominent in Quebec. The dominant and majority language is French, but there is a large English-speaking population in Montreal. As recently as the 1970s, English was the dominant language within the Black population, but it has long since been supplanted by French, with the Haitian population now comprising the largest French-speaking group within the Black community (it is, however, important to note that Creole, not French, is Haitians’ dominant language). Once accustomed to being the largest group, today Black Anglophones often find themselves marginalized in Quebec based on language and ethno-racial background. In her Montreal Gazette article, Yvonne Sam recently wrote, in addition to her experiences as a Black woman in Montreal, language discrimination has had a tremendous impact on her life and that of other Black Anglophones:
I also feel rejected as an English-speaking person. I am reminded of my linguistic minority status every time I hear a unilingual French message on the metro, and also when politicians talk about strengthening Bill 101. At a news conference in November, Simon Jolin-Barrette, Quebec’s minister responsible for the French language, said “Quebec was born French, and it will stay French.” What I heard him say is that, as an Anglophone, I don’t belong here. (2021)
Yvonne’s experience directly and indirectly expresses the experiences of several participants. Nina’s lawyer refused to communicate in English in court, and she was reprimanded by a judge for not being able to speak the language. Her employer also refused to send her written communication in English. Oliver, Fred, and Paul all mentioned language as a significant impediment to accessing justice. According to Oliver, “Every time I showed up at court I didn’t understand what was happening. I was never called never was asked details about what happened; they just read the police report.” He added, “They arrested me, told me I couldn’t go back to my house because the “victim” was there, so I lost my own home… I was assaulted and dehumanized as a victim and then told that I was lying, and then my lawyer couldn’t even represent me in court. He couldn’t even speak English.”
Fred describes the French-English language divide as a barrier in the prison system in that many of the guards do not speak English, and those who do often refuse to communicate with inmates in English. In Paul’s case, he was entitled to have access to programs in English, but there were fewer programs available to him in English and long delays to access them compared with the equivalent programs in French. Despite petitioning the various authorities in the prison, (parole officer, ombudsman, etc.), he had to wait many months before obtaining access to the programs. He also mentioned that there were risks involved in making complaints within the prison hierarchy, including the loss of privileges, because guards, parole officers, and the warden colluded with one another.
For both Paul and Fred, the refusal of prison officers to communicate in English prevented them from accessing valuable programs and services in prison in ways that had or could have had direct bearing on the length of their prison sentence or the nature of their confinement. In each case, language issues limited their ability to navigate the system and access to legal justice.
Racial Discrimination
Although racial discrimination has been an integral part of the experiences of people of African descent and has led to mistrust of the legal system (Greene 2016, 1279, 1305), not all of the participants attributed their problem with the legal system to racism, or at least not to the same degree. Salif believes that his ethno-racial and immigrant background played a major role in how he was treated throughout his legal, immigration, and medical processes. He adds that racism is systemic at the government level and, having experienced racism in France, Canadian racism is very present, although less explicit. Like Jean-Baptiste, he was beaten by the police, and like both Jean-Baptiste and Oliver, his lawyer failed to provide him adequate legal advice.
On several occasions, Harriot has been stopped by the police for traffic violations, which she attributes to racial profiling and harassment. These incidents have occurred while she was driving in predominantly “white” neighbourhoods. She also described her deep sense of fear when she has been pulled over by the police. In a recent incident, she held her hands in the air and refused to comply when the officer told her to lower them. When asked what was going through her mind at the time, she said that she has a family and did not want to risk her life by moving suddenly or by giving the officer an excuse to shoot her.
In March 2020, she was pulled over for not wearing her seat belt. In fact, she was wearing her seat belt, but it blended in with her dark-coloured coat. When the officer realized this, he accused her of failing to obey a stop sign. She tried to communicate with the officer, and she was told that she could contest the ticket if she liked, but that he did not want to hear her speak.
Despite his poor experience with a lawyer and with the immigration process, Thomas does not believe that he was a victim of racial discrimination within the legal system. He does, however, believe that asylum seekers are regarded as criminals who are attempting to cheat the system in Canada. As a result, they are not provided with adequate support.
Angela attributed her housing troubles to racial discrimination. Although she concluded that the Quebec housing authority did its job, she adds that it only provided the bare minimum amount of information. As a tenant, she was not sufficiently protected by the law and was forced to resort to solving the problem on her own. This included conducting her own research, and also seeking advice from friends and family. Interestingly, though she does mention racial and economic discrimination, she did not mention gender – that she may be the victim of discrimination based on the fact that she is a Black single mother.
Kathleen has no doubt that her dismissal from her job was tied to racial discrimination. As she explained, the work environment was composed of an almost entirely white team of French Quebeckers. She and her Black colleague felt marginalized from the outset, and in one instance, Kathleen was told by a white colleague that she should not bring her own child-rearing and cultural practices into the work environment.
Toussaint believes that his experience with racism at work, and with his lawyer, is not only common, but has been normalized within society and internalized by victims of racism. Like other participants, he suggests that the legal resources necessary to protect citizens from the kind of injustice that he experienced are inaccessible. Surprisingly, despite his experience, he believes that the justice system works, but that it must be improved. He also argues that simply hiring more people from “minority groups” is not the solution. What is required is a cultural change within the majority population.
For Paul, the combination of racism and language issues played a role in how he was treated within the prison system. Not only do white inmates receive preferential treatment (including white Anglophones), but Black Francophones have it somewhat easier, in his view, because most of the prison guards are Francophones. 1 In Fred’s case, he was reluctant to attribute too much of his experience to race/racism because he finds it “waters it down,” that is to say, it minimizes his experience. This might be attributed to his desire to demonstrate agency and to make the point that, despite racism and his circumstances in prison, he still has some control over his fate. It also perhaps reflects his appreciation of the ways in which race converges with a range of other issues.
Frantz and Harriot attributed their legal problems to racism, and described it as systemic and ongoing. In Frank’s case, he emphasized that stereotypical perceptions of Black fathers worked against him in his child custody case. His judgment was called into question based on his appearance, stereotypes about absentee Black fathers, and his choice of partner (the fact that he chose to be with his child’s mother who had a substance use disorder). Despite having a full-time job and a track record of raising two children, as he put it, “I wasn’t considered a valuable option” by the court.
For Harriot, racism translated into a palpable sense of dread and a fear that failure to comport herself “the right way” when stopped by the police could result in death. She concluded that to protect her physical well-being, “Even when it’s not right you have to swallow [your words].” In other words, it was important that she demonstrate that she was not a threat to the officer. “Whatever you do you have to prove yourself 10 times more and you have to not keep an angry mind. If not you [won’t] survive.”
In her Montreal Gazette article, Yvonne Sam expressed the same sentiment: “My survival strategy has been to make myself as non-threatening as possible, nevertheless, I still feel I have to keep looking over my shoulder.” (2021)
Footnotes
1 Unfortunately, the study does not capture the experiences of a Black Francophone federal offender.
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