N.S. top court decision marks historic shift for sentencing offenders of African descent

·4 min read

HALIFAX, N.S. — A recent decision by Nova Scotia’s highest court is the first to outline how courts should recognize the effect of systemic racism and poverty when sentencing Black offenders, says a Halifax lawyer.

“The Anderson decision is a historic decision that signals a shift in the landscape when we talk about sentencing African Nova Scotians,” Brandon Rolle, managing lawyer with Nova Scotia Legal Aid, said Tuesday at a press briefing.

“This decision will directly impact every African Nova Scotia being sentenced from this point forward.”

The case involved Rakeem Anderson, an African Nova Scotian man who was convicted with five fire-arm related charges in 2019. Police had found a loaded .22 calibre revolver in his waistband after stopping him at a random motor vehicle checkpoint in November 2018.

In February 2020, provincial court Chief Judge Pamela Williams handed Anderson a conditional two-year sentence to be served in the community followed by two years probation.

The Crown which had sought a sentence of two to three years in a federal penitentiary, then filed an appeal with a request for guidance from the Court of Appeal on how to take into consideration someone’s race and culture in a sentencing proceeding.

Justice Anne S. Derrick wrote in the decision released on Aug. 17 that the sentencing of African Nova Scotian offenders “must evolve” by having judges consider “at every step in the sentencing process” the historical challenges faced by African Nova Scotians.

The decision was made by a rare five-member panel who unanimously ruled that the Impact of Race and Culture Assessment (IRCA) is the ideal method to present this information to a judge.

“Taking account of IRCA evidence ensures relevant systemic and background factors are integrated in the crafting of a fit sentence, one that is proportionate to the gravity of the offence and the moral culpability of the offender,” wrote Derrick in the decision.

The IRCA is a tool that was developed in Nova Scotia by social worker and sociologist Robert Wright and has been used in multiple cases in the province since 2014.

Wright described the assessment as a highly specialized report designed to give judges “more significant and contextualized information about the background factors affecting people of African descent.”

In Anderson’s case, the assessment which Wright co-authored, articulated how the marginalization of Black students in Nova Scotia’s education system and the underrepresentation of Black educators negatively affected the offender.

The court also ruled that an IRCA must be available anytime an African Nova Scotian is being sentenced. When issuing a sentence judges must also show that “proper attention was given to the circumstances of the offender” beyond a passing reference of their background. Failure to do that can be grounds for appeal.

“It’s a message to everyone in the justice system that the application of IRCAs at sentencing is a necessary step to address historical inequities and the overincarceration of Black people in this province and in this country,” said Rolle.

Rolle was one of the lawyers representing the African Nova Scotian Decade for People of African Descent coalition, an intervenor in the case. He said that the coalition consulted with the community regarding their submissions to the court.

"It's rare to be able to stand up at the Court of Appeal and talk about things like slavery, colonialism, and the lived experiences of African Nova Scotians in the justice system. And that's what we had the opportunity to do in this case,” he said.

The federal government has earmarked $6.64 million over five years beginning April 1, 2021, followed by $1.6 million annually on an ongoing basis for the implementation of IRCAs across Canada.

The Peoples' Counselling Clinic, where Wright works, will receive $956,262 over three years for IRCA assessor training and mentorship. Another group, the Sentencing and Parole Project, will receive $480,000 to train judges and lawyers in using the tool.

While the IRCA is plays an important role during sentencing, Wright said more work is needed to address systemic racism that African Nova Scotians face in other processes involving the justice system.

Data indicates that Black people have been dramatically overrepresented in the justice system in terms of their number, the severity of the sentences they receive, and the length of the time they serve in jail, Wright said.

"This is a move towards justice, not a move to some kind of (preferential treatment of) individuals,

"In order to understand that we need to understand that our system up until this moment, the standard has been injustice for people of African descent."

Nebal Snan, Local Journalism Initiative Reporter, The Chronicle Herald

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