In a unanimous decision, the Court of Appeals of Nova Scotia held that the Impact of Race and Culture Assessments (IRCAs) is properly applied in sentencing African Nova Scotian offenders. The IRCAs were enacted to accommodate Canada’s indigenous population. In this case, the question raised was whether the same considerations were properly applied to “African” defendants. The court held it was.

As the Ontario Court of Appeal observed in Borde nearly twenty years ago, the underlying reasons for the over-representation of Indigenous offenders in Canada’s prisons – poverty, substance abuse, lack of education, lack of employment opportunities, and vulnerable, marginalized communities – are also factors in the over-representation of offenders of African descent.

We are now well aware that the disproportionate incarceration of Black offenders reflects the systemic discrimination and racism that permeates the criminal justice system. As the Supreme Court of Canada very recently noted, since R. v. Parks, “courts have acknowledged the wide range of ways the criminal justice system can disproportionately affect accused persons” who are Indigenous or racialized.

As a product of “systemic racism,” should black defendants be sentenced as if they were white or Asian or Hispanic? Apparently not.

The Criminal Code has spelled out since 1996 that incarceration is a last resort for Indigenous offenders.  It does not refer to any other racialized group.  But it does say that sentences are meant to fit both the offence and the offender.  The Nova Scotia Court of Appeal, in a ruling last week, became the country’s first appeal court to draw on that principle and require a judge-made, as opposed to legislated, approach to the sentencing of Black offenders.

“The moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism,” Justice Anne Derrick wrote in a 5-0 ruling. The ruling illustrates the sharp turn that will now be demanded of Nova Scotia’s judges — a change in approach that could well spread to other provinces.  Ontario’s top court is expected to decide a case soon on whether to require a similar approach.

This reflects a paradigm shift in sentencing black defendants. Rather than arguing individualized circumstances at argument that affected a defendant’s commission of a crime, which would include factors such as poverty and lack of education or job opportunities, this creates a racial presumption in mitigation of criminal conduct. It suggests that all black people are less morally culpable for their actions because of historic racism against “Africans.”

Should there be a two-tier sentencing scheme, one for black and indigenous defendants and another for everyone else? Should a black defendant who engaged in the same conduct as a Latino defendant get probation while the Latino goes to prison based on nothing more than his race? Are all black defendants, as the putative “victims” of “systemic racism,” incapable of living law abiding lives, getting a decent education and becoming successful Canadian citizens?

“I think it’s impactful for the whole country, on the basis that systemic racism is completely, totally, unequivocally recognized as a factor in dealing with the principles of sentencing,” Mr. Burrill said in an interview.

It was also applauded by the Criminal Lawyers’ Association, based in Ontario, which intervened in the case. “Not to suggest colonialism is the same as what happened to Blacks in Canadian history,” Daniel Brown, a vice-president of the group, said in an interview, “but there has been a history of slavery, a history of segregation. All of that has contributed to many of these challenges they face today.”

There is no doubt that racism has contributed to the circumstances of black defendants, but how and to what extent does that apply to any individual defendant’s actions would matter less, if at all, if courts were to assume that the criminal conduct of all black defendants was not a product of choice, but of fate and circumstance. Is the theory underlying this sentencing approach that black people have no personal agency, can’t resist the impulse to commit crimes because of the generic influence of historic racism and are therefore less culpable for their decision to pull the trigger than other defendants?

On the surface, this would appear to be a flagrant violation of the Equal Protection Clause if it happened in the United States. After all, a sentencing scheme that divvies out sentences based on racial categories would be anathema to equality. Then again, the current push to “reimagine” equality as “equity” suggests that this might very well be the sort of sentencing scheme that some would argue should apply. White people have no excuse for committing their crimes, since they were never slaves, and should therefore be sentenced more harshly than black people.

Notably, the end result of IRCAs is to find non-carceral sentences whenever possible, which is certainly a good thing. But then, it’s a good thing for all defendants. In the exercise of parsimony, if a sentence that does not require imprisonment is sufficient to achieve legitimate sentencing purposes, then there is no justification for imprisonment. This would be true without regard to the race of the defendant. On the other hand, if the court found that a sentence of imprisonment was warranted for the crime and the defendant, then what explanation is there for a lesser, inadequate sentence? Race?

Certain aspects of an IRCA, however, should not be subject to challenge. Like racial prejudice, acknowledged by the Supreme Court of Canada in R. v. Spence as “notorious and indisputable”, the existence of anti-Black racism can be admitted on the basis of judicial notice without the need for evidence. Judges are entitled to take notice of racism in Nova Scotia and have done so.

There is no justification for requiring offenders to produce viva voce evidence of this pernicious historical reality.54 That said, including in an IRCA the history of slavery and systemic racism in Nova Scotia and its effects on African Nova Scotian communities is indispensable. It will contribute to deepening the awareness and understanding of judges, Crown prosecutors, defence counsel, probation officers, correctional officials, parole officers and others who are dealing with the offender.

In almost every sentence of a black or Hispanic defendant, personal history of poverty, parental or personal drug abuse, lack of education are raised in mitigation of sentence. If it happened, and it almost always did, you argue it and it is a significant factor in explaining how a defendant ended up before the court rather than in Congress or Aspen. But these are personal matters, properly raised as they apply to the individual before the court. It seems unfathomable that race, and race alone, would be a differentiating factor at sentence, as if announcing, “Your honor, my client is black,” and then sitting down would justify a reduced sentence any more than it would justify an enhanced sentence.

H/T Doug Berman