Law prof details the overt and systemic racism in 3 key cases in Canada's legal history

While Canada didn't pass official laws that enforced segregation as seen in the United States, racial divisions and unwritten policies of segregation persisted, according to legal expert Constance Backhouse.

"We hid what we were doing behind race-neutral titles and race-neutral excuses. But we were deeply racist in our Canadian past," Backhouse, a law professor at the University of Ottawa and author of Colour Coded: A Legal History of Racism in Canada from 1900 to 1950, told CBC Radio's Nantali Indongo.

This year, Canadians have marched to protest anti-Black and anti-Indigenous racism as well as systemic bias in policing and the courts as part of a wider resurgence of the Black Lives Matter and similar anti-racism movements.

Sen. Murray Sinclair, the first Indigenous judge appointed in Manitoba, says he's encountered lawyers who assume Indigenous youth are better off in jail than at home.

"Most of the racism within the justice system is hidden … people are acting out the enforcement of the law, the application of the law, in a way that is reflective of the stereotypes and the racism that led to actual racist laws to begin with," said Sinclair.

"It's less about intent; it's more about results."

Backhouse argued that it's important to understand the lesser-known undercurrents of racism against Black, Indigenous and people of colour from Canada's past to better fight against it today.

In the CBC Radio special Breaking the Code, she details three pivotal cases from Canada's legal history.

Inuit and the Indian Act 

In 1939, a court case known as Reference Re Eskimos summoned experts, including anthropologists, geographers and missionaries, to determine whether Inuit — or Eskimos, as they were then known — should be recognized as Canadian citizens or Indians, as defined by the Indian Act.

"They measured heads, faces, noses, stature, eye colour, hair colour, the thickness of lips, dress, diet, occupation, religion, hair texture, teeth size" — criteria that would make you "shake your head," said Backhouse.

In the end, the court found Inuit were protected under the Indian Act. "Therefore, the federal government was on the hook for the very, very paltry financial assistance that they were giving to starving people," Backhouse said.

Looking back, she said, the case illustrates the "absurd" ways officials determined what racial categories people belonged to — categories that at the time included white, black, red, and yellow.

The Ku Klux Klan in Canada

The white supremacist Ku Klux Klan was most active in the United States, but several branches existed in Canada in the early 20th century.

Backhouse noted that white Canadians, including the police and the press, largely supported the Ku Klux Klan of Kanada, and that the Klan's membership was mostly made of middle- to upper-class white men and women.

One night in February 1930, in the town of Oakville, Ont., about 75 members of the KKK-K forced themselves into the home of Isabella Jones, a white woman, and her fiancé Ira Johnson, a Black man.

The Klansmen took Jones to the nearby Salvation Army, burned a cross in front of the home and warned Johnson never to "consort" with a white woman again, Backhouse explained.

Three Klansmen were charged — not of abduction, assault or intimidation, but "a bizarre section of the Criminal Code" that forbids travelling at night while wearing a mask, she said.

One of the three men was convicted, leading to a $50 fine. Ontario's Black community rallied, and in response, the case was appealed and a three-month prison sentence was added to the fine.

What's more, the written decision made no mention of race. "Nobody was any the wiser, in terms of the legal records of what actually had been at stake," Backhouse said.

Black land ownership denied

This summer, Christopher Downey of Nova Scotia won a major victory in the legal battle to officially own the land his family has called home for generations. But the roots of the case lay in a racist law dating back to the American Revolutionary War.

At the time, Britain offered plots of Canadian land to settlers who took up arms against the Americans. White settlers were granted full title to fertile plots of land; Black settlers were handed rocky, infertile land — and they didn't own it.

In the 1960s, the government of Nova Scotia introduced the Land Title Clarification Act, called the LTCA, to make it easier for Black Nova Scotians to get title to their own property.

Downey applied for title to his family's home in North Preston, N.S., a historic Black community near Halifax, where his great-grandfather originally settled in 1913.

But he ran into a complication: the LTCA required the applicant to have lived on the land for 20 years first.

While he grew up in the family's North Preston home, he had moved back only 19 years ago, after living in Toronto for a few years.

In July, a judge ruled that African Nova Scotians "have been subjected to racism for hundreds of years," adding that the province had been applying the law incorrectly when considering land claims.

In a statement to CBC News in July, Nova Scotia Minister of Lands and Forestry Iain Rankin said the government accepted the court's decision and will move to change its policy.

Dismantling racism from within

Lawyer Scott Campbell, who is white, represented Downey in the case and argued that people with privilege like him have "not only a moral, but an ethical obligation" to help dismantle the systemic racism embedded in Canada's legal frameworks.

Juanita Westmoreland Traore, Quebec's first Black judge, says a greater diversity of race and backgrounds is needed to more effectively stamp out racism in the justice system.

"In our court system in Quebec, we don't have a critical mass, a sufficient number of racialized judges," she said.

"This means that within the system itself, we are not having the communication and the skills and the experience to understand society as it has existed, and as it is evolving."

Backhouse says in recent years, she's seen greater awareness among Canadians about the existence of white privilege and how it reinforces systemic racism today — both in the legal system, but also in other aspects of life.

"I think our goal is for all of us who care about this, to not let down our guard, to keep pushing forward and keep insisting that this moment needs to be taken very seriously as a momentum for change that is sorely needed," she said.

For more stories about the experiences of Black Canadians — from anti-Black racism to success stories within the Black community — check out Being Black in Canada, a CBC project Black Canadians can be proud of. You can read more stories here.

Written by Jonathan Ore. Breaking the Code was produced by Dionne Codrington and hosted by Nantali Indongo.