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Nova Scotia’s top court ruled that trial judges need to consider the history of racism and marginalization that shaped them, and do their utmost not to put racialized offenders behind bars where appropriate.

Adrian Wyld/The Canadian Press

The sentencing of Black offenders in Canada is on the verge of a dramatic change after Nova Scotia’s top court ruled that, as with Indigenous offenders, trial judges need to consider the history of racism and marginalization that shaped them, and do their utmost not to put them behind bars where appropriate.

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.

Bias behind bars: A Globe investigation finds a prison system stacked against Black and Indigenous inmates

“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.

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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.

Like the reports written on some Indigenous offenders, known as Gladue reports, in-depth documents that tell a judge at sentencing about a Black offender’s history of exclusion and marginalization should be done from here on, or the appeal court may overturn the sentence, Justice Derrick warned. The reports on Black offenders are known as an Impact of Race and Culture Assessment (IRCA).

Lawyers ask judge to declare African-Canadians deserve special consideration in sentencing, like Indigenous people

The ruling was applauded by Roger Burrill, a lawyer for Rakeem Anderson, the offender in the Nova Scotia case, who was sentenced to two years of house arrest, to be followed by two years of probation for illegal gun possession.

“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.”

Courts across Canada have been outspoken on the importance of deterrence and tough sentences in gun crimes. Indeed, when Mr. Anderson was found in late 2018 in a patdown at a random police checkpoint to have a loaded .22 calibre revolver, and convicted, a provincial prosecutor demanded two to three years in the federal penitentiary. But the trial judge – Provincial Court Chief Justice Pamela Williams – balked.

In the face of statistics showing that 9.5 per cent of federal prisoners are Black, though Black people make up roughly 3.5 per cent of the population, she requested an IRCA on Mr. Anderson and told the province’s Justice Department to pay for it. (Just before the election call, federal Justice Minister David Lametti said he had set aside $6.6-million over five years to pay for IRCAs around the country.)

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The IRCA report on Mr. Anderson, co-authored by social worker Robert Wright and by Natalie Hodgson, said the offender’s best friend was killed by violence. Ms. Hodgson testified gun possession was an accepted cultural norm in the North End of Halifax, where Mr. Anderson, in his 20s, had lived in substandard housing, surrounded by poverty and crime.

“Many Black males arm themselves with guns, not because they have plans to harm someone, but rather they feel the need to protect themselves in case,” Ms. Hodgson testified.

Mr. Wright, the author of the first IRCA in Nova Scotia in 2014, testified that certain behaviours arise from “a community’s trauma and difficulty,” and that harsh treatment will neither reform the individual nor deter others from their community.

His report said: “Rakeem was thrown into the world as a young adult lacking the skills and knowledge to thrive and survive; no resources, supports or interventions, without therapy for trauma and loss, and a very low elementary-level education.”

Chief Justice Williams said she had spent many hours “agonizing” over a just sentence. Mr. Anderson, a father of four young children and said to have a good heart, in some ways did not appear a good candidate for rehabilitation. He had done little to address his education and training deficits while his case was before the court. Ultimately though, the judge agreed with Mr. Wright and sentenced Mr. Anderson to two years of house arrest, with a 10 p.m. curfew and conditions that he attend Afrocentric therapy to address trauma, attend literacy and education programs with an Afrocentric focus and perform community service.

“Punishment does not change behaviour when the actions are rooted in marginalization, discrimination and poverty,” Chief Justice Williams said, while adding that those who endanger society must be separated from it.

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The prosecution appealed, but when the federal government proposed a new law early this winter, Bill C-22, stressing the need to reduce disproportionate sentencing patterns, and removing many mandatory minimum terms of incarceration, the prosecution’s position evolved. Ultimately, it accepted the trial judge’s sentence.

The 1996 Criminal Code provision singling out Indigenous offenders for more lenient treatment has not stemmed an increase in the prison population. Indigenous peoples now make up 31.5 per cent of federal prisoners, while they are just over 5 per cent of the country’s population.

The proposed Liberal legislation scrapping many minimum sentences would have allowed for broader discretion from judges, but did not make it beyond second reading. Justice Derrick called the proposed law an explicit recognition from Ottawa that systemic change in sentencing is needed. (In the matter of illegal gun possession, the Supreme Court of Canada had already struck down the three-year minimum in 2015, giving Nova Scotia more flexibility in the Anderson case.)

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Editor’s note: An earlier version of this story incorrectly said that Justice Anne Derrick of the Nova Scotia Court of Appeal is the Chief Justice. This version has been corrected.

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