A groundbreaking test of mandatory minimum sentences in the Ontario Court of Appeal this week will probe accusations that they perpetuate centuries of court-sanctioned racism by unfairly targeting black males.
At stake is a major plank in the federal government's crime-fighting agenda, which uses mandatory minimums to tie the hands of judges and serves as a harsh warning to would-be offenders.
Lawyers in some of the six test cases allege that a disproportionate number of black males are charged with mandatory minimum offences, not because black men have a greater propensity to commit crimes, but because they are more likely than whites to be under police surveillance.
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"Anti-black racism is pervasive and results in bias in the criminal justice system," says a legal brief for the African Canadian Legal Clinic.
It argues that, historically, a white-dominated justice system failed to stop segregation in housing, schools and social gathering places. "Ongoing discrimination against African-Canadians in the criminal justice system has perpetuated a distrust of the police that dates back to slavery," it states.
The legal clinic contends that today systemic racism puts blacks at the bottom of the socioeconomic ladder, where black males are more prone to end up before the courts because they live in gang-ridden neighbourhoods with a heavy police presence.
Worse still, the clinic says that impressionable young black men end up being incarcerated for long periods alongside hardened criminals. Their absences cause anguish to their children and fracture family ties, it added.
One of the defendants, Leroy Smickle, was holding a gun when Toronto Police officers, who were looking for someone else, battered down his apartment door on March 9, 2009. (Mr. Smickle was reclining on a sofa with the gun in one hand and his laptop computer in the other.) Mr. Smickle, 30, had been in the process of snapping a Facebook photo of himself. He was charged with possessing a loaded firearm; an offence that carries a mandatory minimum sentence of three years in a penitentiary. However, Mr. Smickle's trial judge recoiled at the severity of the penalty for a first-time offender with a fiancée and a steady job, and struck down the provision.
The legal clinic states that 62 per cent of those charged under the same firearms provision as Mr. Smickle are black. In contrast, it said that blacks make up only 8.4 per cent of the population. The clinic also maintains that black males are more likely than whites to be stopped by police, to be refused bail and to plead guilty to avoid spending long periods of pretrial detention.
Another of the test cases involves Hussein Nur, whose family emigrated from Somalia when he was five years old. His lawyers argue that, like many black immigrants, Mr. Nur will be automatically deported because his mandatory sentence exceeds two years.
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Federal and Ontario lawyers hope to tiptoe around the question of police behaviour and whether black males are more or less inclined to commit gun crimes. Their written briefs focus instead on a series of penalties they state are necessary to combat gun crime.
They contend that mandatory minimum sentences have an equal impact on Canadians of any racial origin. Other defendants attack the mandatory penalties for allegedly breaching Charter rights to equality; to life, liberty, security of the person; and to be free of cruel and unusual punishment.
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