When Barrington Walker started his PhD dissertation at the University of Toronto, he was focusing on Black porters on Canadian trains. But a criminal case involving one Black porter intrigued him and so he switched his focus to Canada’s criminal court records and examined the history of inequalities in Canada.

The Queen’s associate history professor’s new book, Race on Trial: Black Defendants in Ontario’s Criminal Courts, 1858-1958 continues with this subject. Walker used court records to discover that Black slaves escaping the United States via the Underground Railroad weren’t reaching the utopia they had expected.

Yesterday, the Journal sat down with the author to discuss his findings:

Q: Is the general idea that Canada was the enlightened neighbor to the slave-trading United States a myth?

A: It’s not a myth necessarily because there’s some historical truth in it. Slavery was practiced in Canada, and sometimes Canadians erroneously assume that slavery wasn’t more extensive because of moral reasons, but really the reasons were climatic. There’s an argument to be made that if Canada could have supported large scale plantation agriculture, slavery would have been much more prominent.

Where I think some of the naiveté comes in is the belief that because slavery wasn’t practiced here past 1834, that Blacks didn’t face discrimination … when the truth is much more complicated then that.

The exercise of the law was often distorted by the pervasiveness of societal discrimination. The law had these ideals about equal treatment and colour blindness under the law but the reality was it was operating within a context of very pervasive anti-Black racism. So it’s trying to figure out how Blacks lived between those two contradictions. In many ways the Black experience is that paradox between legal freedom and societal inequality.

Q: What were some of those societal inequalities?

A: You find things like segregated schools are quite common in 1850s Ontario. The schools question is really one of the most huge ones. … Although under law there are provisions made in Canada for Blacks to receive education, in practice, a lot of whites conspired to keep Black children out of schools.

For most blacks, the occupations they embarked upon in Canada were very of similar to the sorts of work that Blacks did under slavery and they found themselves pushed to the bottom of the occupational ladder. That’s a huge one as well, Blacks’ position in the labour market.

Something that’s a little harder to document but it comes up in sources from time to time is just the everyday casual racism that Black people had to face. Things like the depictions of Blacks in the media as either childlike, or buffoonish or prone to criminal tendencies. The casualness with which white Canadians threw around the racial epithet “Nigger” was quite common and some Blacks reported being called “Nigger” to the face—something that really doesn’t happen now aside from the Internet.

Q: Why did you go about uncovering these social inequalities through examining court cases?

A: Being trained as a social historian, the court records are a really good window on the histories of all marginal populations in Canada … You’ll find documented histories of people who for a variety of reasons didn’t leave behind sources, whether because of education or you know, most groups don’t sit around and write diaries, that’s really a white-middle-class preoccupation, which I guess has only been replaced by blogging now. Most working-class Blacks were too busy trying to make a living. The courts are often a very good window onto their day-to-day lives.

I wanted to look at the limits of their freedom. I knew on paper that they were free, but I figured that legal trials would tell us a lot about the extent in which those ideals of freedom were fully realized.

Oftentimes the law did live up to its ideals but more often not. It really speaks to what I call the veneer of freedom. Blacks came across the border in that era and there’s stories about Blacks falling on their knees and kissing British soil. These are somewhat romantic myths about Canada but there’s a grain of truth in them.

Legal freedom only can take you so far. The pressing issues of how your children are going to be educated, where you’re going to live, what you’re going to eat, really substantiate freedom and make it meaningful. Blacks found it was more complicated than just crossing the border.

Q: Where you expecting to find what you found?

A: Not entirely. I think what I expected to find was a really unambiguous story of Blacks facing “discrimination” and being subject to very harsh sentences … and that’s certainly a lot of what I found but there are also a lot of other things going on that complicated the picture.

Race was articulated in ways that can’t be easily called discrimination … What I mean by that was there were often these narratives around Black people’s inability to understand the gravity of what they had done. Defence lawyers, sometimes judges, would make arguments about Blacks’ inability to appreciate the gravity of their crime, this often would have an effect on sampling as well.

One of the things that I found was sometimes arguments around mercy can be as much about race as arguments around harsh punishment. In some of the cases in the book there were arguments about Blacks being incapable of understanding the whole idea of premeditation. So premeditated murder being something that Black people were incapable of because premeditation assumes some kind of cognitive ability and if you don’t have the cognitive ability, premeditated murder is an impossibility for some populations.

Q: What are the implications of that racially-based request for mercy?

A: Race is a very dynamic thing in that it turns up in all sorts of places and it turns up in places that we wouldn’t normally expect. Having your sentence commuted because your lawyer managed to argue that you couldn’t understand the gravity of your crime because you’re Black is pretty good because you don’t hang. On the other hand, the price of those arguments is your dehumanization. I suppose it was a price that most of those defendants in question were willing to pay, but in many ways it’s a very steep price.

Q: Should this part of our heritage be a source of national pride?

A: Yeah, but with an asterisk. I think Canadians should celebrate the fact that Canada did provide a legal haven for people of African descent who would have had to have lived through a life of terrible bondage in the United States. I’m not trying to take that legacy away from Canadians. But I think Canadians need to be more honest about some of the societal prejudices that Blacks faced when they arrived in Canada. Canada was a legal haven yes, but it was no utopia.

Q: How are court records from the 19th and early 20th century relevant today?

A: I think it’s relevant today, frankly, because that tension I was talking about between societal inequality and legal equality still exists in Canada for people of African descent. Although the discrimination that Blacks face now in Canada isn’t as overt as what I found in the mid-19th century up until the mid-20th century, it’s still quite true that… the socio-economic position of African-Canadians is relatively low compared to other groups in Canadian society. So there’s that aspect of it.

It’s still very much that Blacks are associated with the dominant culture’s imagination of crime and issues of criminal justice. So in that sense, I think if we kind of go full-circle with this work, because it was a work that was very much influenced by the environment around the just desserts case.

Look forward to the next installment of the Sit-Down Series in coming issues the Journal.