N.S. top court: Judges must consider systemic racism when sentencing Black offenders

HALIFAX -

A recent Nova Scotia Court of Appeal decision on sentencing for Black offenders will help the justice system recognize the full extent of the injustices facing African Nova Scotians, an anti-racism advocate said Monday.

Last week's ruling, which requires trial judges during sentencing to consider the historical disadvantages and systemic racism experienced by Black offenders, is "a turning of the tides," said Robert Wright, executive director for the African Nova Scotian Decade for People of African Descent Coalition.

"We recognize now that justice is not blind," he said in an interview. "It has been too sighted in the wrong way and that justice is meted out kind of proportionally to your status in the society."

Justice Anne S. Derrick, on behalf of a Court of Appeal panel, ruled that compelling judges to inquire about the systemic issues facing African Nova Scotians could help reduce the levels of incarceration in that community. The ruling followed a change to the Criminal Code in 1996 requiring judges during sentencing to consider the particular circumstances of Indigenous offenders.

"This is not a conventional appeal," Derrick wrote in the 5-0 ruling. "We are not being asked to find the sentencing judge erred in law or imposed a manifestly unfit sentence.

"The moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism, as was done in this case."

The decision involved the case of Rakeem Rayshon Anderson, an African Nova Scotian man who was found guilty on five firearm-related charges in June 2019. Police had found a .22-calibre revolver in his waistband following a traffic stop in November 2018.

Provincial court Chief Judge Pamela Williams in February 2020 handed Anderson a conditional sentence of two years less a day, along with two years' probation. She said her sentencing decision was supported by the results of an Impact of Race and Culture Assessment (IRCA) involving Anderson.

Williams had said that regardless of the sentence she imposed on the accused, it would likely "do little to deter others in similar circumstances" because of socio-economic forces that are "firmly entrenched in systemic racism and marginalization."

"So, should the justice system continue to emphasize deterrence and denunciation by imposing stricter sentences … or should it, on a case-by-case basis, employ a restorative yet denunciatory community option for those who are ready to make the necessary change?"

The Crown, which had appealed Williams's decision, had said it wasn't looking to overturn the sentence but wanted guidance on the lower court judge's ruling.

Derrick said the panel unanimously decided that the use of race and culture assessments is a necessary resource for judges who are attempting to balance "the objectives and principles of sentencing."

"IRCAs set a new table for sentencing offenders of African descent in a regime that has been shaped through an over-reliance on incarceration for Black offenders and their concomitant disproportionate representation in Canada's prisons and jails," Derrick wrote.

Data indicates that courts in Canada have been disproportionately harsh on Black offenders, Wright said.

Black people were 7.3 per cent of federal offenders in 2017-18, according to the federal government's latest statistical profile of the correctional system. That's more than double the approximately 3.5 per cent of Canadians who identified as Black in the 2016 census.

Wright said the Court of Appeal decision reflects an understanding on the part of the courts regarding the unseen factors affecting Black offenders and other marginalized groups. "I think that the answer is not for justice to become blind as it was supposed to be, but rather that it begin to look at itself with a more critical eye and that's what's beginning to happen."

This report by The Canadian Press was first published Aug. 23, 2021.

-- -- --

This story was produced with the financial assistance of the Facebook and Canadian Press News Fellowship.