Early in my baptism as a Toronto-based court reporter, a veteran press hack took me aside to outline some "helpful" courthouse realities.
"You'll notice that most of the people you see lined up outside courtrooms are black," he said, or words to that effect. "You're not imagining things. They are Jamaican. Trust me, you won't be a liberal by the time you leave this place."
That was 1982. Racial tensions have ebbed and flowed ever since, provoked by controversial police shootings and the insistence of black people that they are targeted for unfair treatment by the court system. Another wave hit last week, when the Toronto Star took aim with both barrels at the issue of racial profiling by police.
The Star's effort was laudable and thorough. At the same time, anyone with a functioning memory heard strong echoes of the ill-fated Commission on Systemic Racism in the Ontario Criminal Justice System.
Appointed by the provincial NDP government in 1993, commissioners Margaret Gittens and Judge David Cole spent three years listening to deputations and compiling reams of data to prove the existence of systemic racism -- from arrest through to sentencing. Unfortunately, it was released soon after the NDP was replaced by the Conservative government of Mike Harris, Ernie Eves, et al.
The Tories' much-hyped Common Sense Revolution boasted a clear hierarchy of goals -- and wiping systemic racism from the justice system ranked somewhere between funding creative dance and preserving the common loon. The Tories couldn't shove the Cole-Gittens report on the top shelf fast enough.
True to form, Premier Eves and security czar Bob Runciman showed this week that nothing has changed. They conceded under pressure that racism might conceivably exist -- although surely not on the Toronto police force.
Reflecting back, Judge Cole says it encouraged him to see that his report provoked judges to extend education programs and the police to embrace racial-sensitivity training and minority recruitment.
But it clearly hasn't been enough. The Star has amply proven the problem in relation to police contacts with blacks, while it is equally clear from anecdotal evidence that racial disparities continue to permeate the court system.
"I have no hesitation in saying that I -- and probably every other judge in the province -- are called upon to sentence a disproportionate number of people from racial minorities," Judge Cole says flatly.
What can explain the continuing problem? Judge Cole suggests ruling out intentional racism as a factor. "This is not about intentions," he said. "It is about outcomes. Very little has changed. The police go where they believe they will find crime."
Picking up the same point, University of Toronto criminologist Scot Wortley believes that an unpublicized finding of one of his recent studies is critically important to knitting together the whole, confusing picture.
Three thousand Toronto high school students were interviewed for the study about their race, deviant activities they may have engaged in, and their history of police contacts.
The first obvious conclusion was that blacks had been stopped or searched much more than whites. However, Prof. Wortley went further. He divided his subjects into "good kids" with no deviancy in their background, and "bad kids" who had a more checkered past.
The findings were startling. The "bad" black kids had been stopped almost as often as the "bad" white kids -- proving that the antennae police tend to develop for suspicious behaviour is as acute as it is colour-blind.
However, when it came to solid, law-abiding kids, those antennae malfunction badly. The "good" black kids had been stopped far more frequently than had the "good" white kids.
The findings help clarify the recurring random stops of law-abiding blacks, while at the same time explain why Judge Cole sees an inordinate number of black offenders in his courtroom. It isn't that they necessarily commit more crimes -- they are simply under far greater observation.
"If you are black and commit a crime, your chances of getting caught are much greater than if you are white and do the exact same thing," Prof. Wortley said.
Judge Cole put the same thought a different way: "If you flooded Rosedale with police officers, all of a sudden your Rosedale crime rate would rise."
My leathery press mentor had thus been right in his observation, but wrong in his uncharitable conclusions. "The comments from that reporter come from the very same institutional, subcultural knowledge those police share with one another all the time," Prof. Wortley remarked.
The entire debate has become a fascinating backdrop for a case to be heard in the Ontario Court of Appeal in January -- Regina v. Decovan "Dee" Brown. Mr. Brown was arrested in 2000 for impaired driving. The Toronto Raptors basketball star has throughout the case asked his lawyers -- Steven Skurka and Phil Campbell -- to prove that he was stopped for nothing more than, as the saying goes, "driving while black."
At a two-day trial, Ontario Court Judge David Fairgrieve gave Mr. Skurka a rough ride over the allegations and brusquely rejected the argument and convicted him. Ontario Superior Court Judge Brian Trafford then overturned that finding, saying Judge Fairgrieve had tarnished the justice system with apparent bias and racial insensitivity.
Judge Trafford's ruling has caused Judge Fairgrieve much anguish. It has also fuelled a subtle, but longstanding, schism between the provincial court bench and the superior court bench.
It is hard to swallow the idea that Judge Fairgrieve was motivated by racist impulses, but did he end up depriving Mr. Brown of a fair hearing based on some form of misplaced institutional loyalty to the police? Did he reveal the sort of unintentional racial presuppositions that Prof. Wortley's study exposed in the police?
Or, was he simply "a good judge who had a bad day," as Mr. Campbell suggested in an interview at the time?
There is every chance the Brown case could go to the Supreme Court of Canada, perhaps even establishing racial profiling as a Charter breach for which judges must be on the lookout.
If so, Mr. Brown's stubborn refusal to roll over and be bulldozed by the system is destined to become the stuff of legend. kmakin@globeandmail.ca