As Ontarian legal professionals and community organizations waited in eager anticipation for the R v. Morris (“Morris”) appeal decision, which now guides sentencing practices for Black Ontarians, the Nova Scotia Court of Appeal released its own decision about considering the impacts of anti-Black racism on the lives of Black Nova Scotians during sentencing. This case has provided a framework and a way forward in responding to the over-incarceration of Black Canadians.
Background / Facts of the Case
Rakeem Anderson was stopped at a random checkpoint on the highway. Police did a pat-down search, finding a loaded .22 caliber revolver. He was charged and convicted with possession of the loaded revolver, transporting it, and concealing it.
The sentencing judge considered how Mr. Anderson’s history had impacted him by reviewing the “Impact of Race and Culture Assessment” (a report on how racism has impacted Mr. Anderson’s life and the lives of other Black Nova Scotians) submitted by Mr. Anderson’s Defence lawyers. The Judge considered “…Residential Instability in Impoverished Neighbourhoods, Lack of Educational and Employment Opportunities, Particular Patterns of African Nova Scotian Violence, Racial Profiling, North End Culture and No Hope, and Trauma and Loss”.
For example, Mr. Anderson lost 4 friends to violence. Mr. Anderson lost his father, whom he was very close to, at the age of eight. Mr. Anderson was put on an IPP (individualized program plan) around that time and ended up attaining only a grade six level education. He also has OCD, ADHD, and Opposition Defiance Disorder. Combined with poverty, and experiences of racism in the community more broadly, these experiences were found to have contributed to his “pathway to criminality”.
The Judge stated that focusing on deterrence would not likely prevent others from committing firearm offences, because the “…socio-economic forces at play are so powerful and are firmly entrenched in systemic racism and marginalization”.
The Judge sentenced Mr. Anderson to a two-year conditional sentence in the community, followed by two years of probation.
The Crown launched an appeal to this decision, seeking to clarify how Judges are to determine fit and proportionate sentences, while also redressing the problems of over-incarceration and anti-Black racism against Black Nova Scotians. The Crown also sought to clarify the role and content of “Impact of Race and Cultural Assessments (IRCA)” in sentencing proceedings. IRCA’s are pre-sentencing reports that help sentencing judges understand the effects of racism, marginalization and other social issues on the life of the offender before them. They help inform how that individual’s life experiences of racism and discrimination may have influenced their situation and their involvement in the crime. They are offered so that a Judge can craft an appropriate sentence. The parties offered different frameworks for how anti-Black racism should be considered in sentencing proceedings.
The Nova Scotia Court of Appeal’s decision will now require judges across Nova Scotia to consider the impact of “systemic factors of racism and marginalization” when deciding sentences for Black Nova Scotians. As the Court stated:
As with Indigenous offenders, while an African Nova Scotian offender can decide not to request an IRCA, a sentencing judge cannot preclude comparable information being offered, or fail to consider an offender’s background and circumstances in relation to the systemic factors of racism and marginalization. To do so may amount to an error of law.The Appellate Court drew several conclusions.
IRCAs and Evidence
The Court left discretion to sentencing judges to determine when it is necessary to call evidence (witnesses/academics to testify or submit academic reports) about systemic racism and its impacts. However, the Court noted that calling such evidence should not be seen as a prerequisite to relying on an IRCA. They also stated that certain aspects of the IRCA, like the notoriously recognized existence of anti-Black racism in Nova Scotia, should be admitted based on Judicial Notice (accepted or recognized without any testimony or detailed academic reports in each case to confirm it).
Level of Consideration, Appellate Intervention
An important finding in this case that distinguishes it with the more recent Ontario decision in Morris is the Court’s decision that the failure of a judge to inquire into or consider systemic and background factors, including anti-Black racism, during sentencing for Black Nova Scotians may be considered an error of law and justify an appeal. The Court stated: ”It should be possible on appeal for the court to determine, based on the record or the judge’s reasons, that proper attention was given to the circumstances of the offender“.
Anti-Black Racism & Sentencing Principles
The Court stated that, in crafting a sentence, an offender’s social and racial context can assist in:
- Considering the seriousness of the offence and the offender’s moral responsibility for the offence.
- Identifying mitigating factors (facts that would ordinarily cause the Judge to impose a lesser sentence) or explaining their absence.
- Offering a deeper explanation for the presence of aggravating factors (facts or circumstances that would ordinarily cause the Judge to impose a harsher sentence)
- Informing the principles of sentencing and how much importance a sentencing Judge will give to denunciation and deterrence
- Identifying rehabilitative and restorative options for the offender and ways that the offender can repair the harm done to the victim as well as the community.
- Strengthening the offender’s engagement with their community.
- Informing the parity principle (similar cases should receive similar treatment)
- Reducing reliance on incarceration.
The Court recognized that “[t]he historic discrimination and racism to which African Nova Scotians have been subjected is antithetical to societal values of equality and inclusion” and that a “… sentence cannot be “fit” if it does not respect the fundamental values enshrined in the Charter”. The Court stated:
“Respect for the law and the maintenance of a just, peaceful and safe society is not achieved by putting disproportionate numbers of Black and Indigenous offenders behind bars having left unaddressed, in the context of sentencing, the deeply entrenched historical disadvantage and systemic racism that more than likely had a hand in bringing them before the courts”.
Peacebuilders Canada applauds the Nova Scotia Court of Appeal’s decision and recognitions. We had hoped that the Ontario Court of Appeal would have taken a similar approach in Morris, ensuring that all Ontario judges consider the impact of anti-Black racism on an offender during sentencing as well. A just response to the over-incarceration of Black Canadians must be one that truly recognizes and centers systemic as well as individual experiences of anti-Black racism. This recognition must be made within all justice processes and sentencing principles. Without consideration of anti-Black racism within sentencing principles, the Justice system commits to misunderstanding the coercive impact systemic racism has on the lives of many Black Canadians; a commitment to misunderstanding is a commitment to injustice and continued racism within the Justice system.
 R. v. Anderson, 2021 NSCA 62 at para 121.