This is part of the Difference Makers, which highlights some of the people working to make Canada a better place in 2022.
The first time Robert Wright was asked to testify at the sentencing of a Black offender, the prosecutor tried to silence him, saying he wasn’t qualified to be an expert witness.
But Justice Anne Derrick, then of the Nova Scotia Provincial Court, let the registered social worker speak. Now, seven years later, the reverberations are about to be felt across Canada.
What Mr. Wright said in court, and wrote in an assessment, was that the prosecution’s portrayal of a 16-year-old as a hardened and remorseless criminal had missed a salient feature: What it means to grow up Black in Nova Scotia.
To be an African-Nova Scotian, he said on behalf of the defence, meant a family history of “racial trauma.” It meant that the 16-year-old (known as “X” in court papers) had himself been stabbed at age 14. It meant – according to X’s mother, whom Mr. Wright interviewed – that nearly everyone in their community had a son, a nephew, a cousin, who had been shot, or had shot someone.
It seemed long odds. X was being sentenced for attempted murder after shooting his unarmed 15-year-old cousin in the belly. Several psychological assessments supported the prosecution’s portrayal of an unsalvageable youth. If there was any hope of rehabilitation, the judge had been told, the teen would need to do a long stretch of adult time, because the youth maximum for attempted murder (two years in custody plus one year under community supervision) was simply too short to reach him.
But Mr. Wright’s testimony, the first of its kind for Black offenders in the province, suggested a different person behind the bravado. Noting his insights, Justice Derrick ruled that X had a “reduced capacity for moral judgment” because he was “struggling with his identity in the context of a criminally impacted community that has incubated mistrust, rivalries, and violence.” She sentenced him as a youth, saying an adult sentence would likely derail his chance at being rehabilitated.
“It was a made-in-Nova-Scotia-solution to an observed-in-Nova-Scotia-problem,” Mr. Wright says now, of his assessment of X’s racial and cultural background.
The judicial embrace of Mr. Wright’s report on X in 2014 sparked more race-based reports, by Mr. Wright and other clinicians, in other cases in the province, precipitating a major change in the sentencing process for Black offenders.
This past summer, Nova Scotia’s top court issued a 5-0 ruling – authored by that same Justice Derrick, in another gun case in which Mr. Wright this time co-wrote an assessment – telling judges in that province they must consider the race-based disadvantage of Black offenders at sentencing, or risk having their sentences thrown out on appeal. (In that case, the Nova Scotia Court of Appeal upheld a home-based sentence for Rakeem Anderson, who had been convicted of illegal gun possession; the Crown had initially asked for a two- to three-year prison term).
Today, reports like the ones Mr. Wright and several others have been creating in Nova Scotia are about to spread nationwide, with the help of $6.64-million in funding over the next five years from the federal government. Continued funding of $1.6-million a year is to follow. Mr. Wright is among those tasked with helping to train and recruit the clinicians who will write the assessments. The National Judicial Institute is receiving $302,000 over the next five years to train judges in the uses of the reports. A non-profit group known as the Sentencing and Parole Project – headed by Toronto lawyers Emily Lam, Faisal Mirza and Anthony Morgan – will train defence lawyers and federal and provincial prosecutors.
Mr. Wright’s qualifications, as cited by Justice Derrick in the case of X, included having been executive director of the province’s child and youth strategy, being a PhD candidate in social work, and an instructor at Mount Saint Vincent University.
But he also knew something about the topic from his own life as a native son – a seventh- or eighth-generation Black Nova Scotian.
In his immediate family – he was one of six children of a single mother – there had been domestic violence and alcoholism. His father was mostly absent. His sister, Cathy Wright, a celebrated athlete, was murdered in her mid-twenties. A brother did time for robbery.
“I have what I would call a typical Scotian life,” says Mr. Wright, now 54, and a father of two (one is a nephew he legally adopted at age six).
“It doesn’t matter what Black person you talk to here. If they’re a deputy minister, if they’re a senator, if they’re a university professor, they have a brother or a cousin or a niece or nephew who have been significantly impacted by systemic racism, and whose life outcomes are therefore coloured by that.”
The expansion of the race-based reports doesn’t mean judges will be required to give special consideration to Black offenders. Ontario’s top court has expressed caution about the Nova Scotia approach. While accepting that the reports are important and helpful, the Ontario court also stressed that offenders exercise free will, and that racial discrimination should not be overemphasized, particularly with gun crimes.
But at a minimum, the reports will give judges more information about the influences that shaped Black offenders, influences that may prompt a rethinking of the need for long jail sentences in certain cases.
“Judges are very receptive to the information, they are interested, they are engaged, and there is a positive impact” on sentencing, Ms. Lam said in an interview, citing the experience of the Sentencing and Parole Project, which was inspired by Mr. Wright’s example and provides reports on marginalized Black offenders in Ontario. (Mr. Wright also wrote the first race-based report in an Ontario sentencing of a Black offender, in 2018).
The nationwide project comes as Canada grapples with disproportionate rates of incarceration among Indigenous and Black offenders. In December, the Liberal government reintroduced a proposed law to abolish mandatory minimum sentences for many crimes, and to offer the possibility of sentences served at home for a wide range of crimes. If passed, judges would have wider discretion.
The Criminal Code has required judges since 1996 to give special consideration at sentencing to Indigenous Peoples. (Mr. Wright’s assessments of Black offenders are similar to those done in many cases on Indigenous offenders, a debt he expressly acknowledges). Federal law also sets out that sentencing is an individualized process, proportionate to the seriousness of the offence and the offender’s moral responsibility. It is this concept of understanding the offender that the race-based reports – known as Impact of Race and Culture Assessments, or IRCAs – are geared toward.
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