Implementing ‘Impact of Race and Culture Assessments’ in the Sentencing of Black Nova Scotian Offenders: R v Anderson
How should criminal courts account for the existence of systemic and pervasive anti-Black racism when sentencing Black offenders? This is the question that the Nova Scotia Court of Appeal (“NSCA”) grappled with in R v Anderson, 2021 NSCA 62 [Anderson]. More specifically, the appellate court examined how evidence from ‘Impact of Race and Culture Assessments’ (“IRCAs”) factor into sentencing. These reports “bring into sharp focus both the historic injustices and systemic racism perpetrated against persons of African descent and the specific offenders’ life experiences (Anderson, para 11). Although the NSCA sets forth a sufficient approach, a few issues will be discussed at the end of this post, including imposing a judicial narrative, finding colonized populations as homogenous, and adopting an inconsistent approach to criminal trials.
The police stopped the accused, Rakeem Anderson, at a random motor vehicle checkpoint and engaged in a pat-down search (Anderson, para 15). The trial decision, R v Anderson, 2021 NSPC 10 [Anderson Trial], indicates the search was prompted by the police’s determination that the accused had a revoked driver’s licence and a history of involvement in serious violent offences (Anderson Trial, para 3). In doing so, they discovered that the accused had a loaded .22 calibre revolver tucked into his waistband (Anderson, para 15). Ultimately, the accused was charged and convicted of: (1) transporting a restricted weapon in a careless manner (Criminal Code, RSC 1985, c C-46, s 86(1) [Code]), carrying a concealed weapon (Code, s 90(1)), possession of a restricted weapon (Code, s 91(1)), possession of a loaded restricted weapon (Code, s 95(2)) and being an occupant of a vehicle with a restricted weapon (Code, s 94(1)).
Before sentencing, the accused’s counsel requested that an updated pre-sentence report be crafted, which existed from a previous youth sentence (Anderson, para 21). As the offence involved a firearm, the Crown argued that the issue of/concern for rehabilitation should take a backseat to more pressing issues of denunciation and deterrence (Anderson, para 25). In response, the accused’s counsel gave a powerful submission to the sentencing judge:
“So what do we do in this case? Do we throw another young Black man in jail for a significant period of time because of society’s approach to gun violence while blinding ourselves to the cultural reality that he was facing, or do we look at his motivations for doing so and, once we do that, placing his moral blameworthiness on the lower end of the scale while still recognizing the seriousness of gun charges?”
Ultimately, the court was confronted in a situation where it faced contextualizing and individualizing a sentence on one hand and balancing societal interests in protecting victims and the community on the other (Anderson, para 56). The fact that the accused had a firearm was given significant weight as an aggravating factor and the mitigating factors included that the accused was respectful and cooperative (Anderson, paras 58-62). To add to this, the IRCA examined systemic factors and determined that the accused’s experiences with poverty, housing insecurity, lack of education, and racial profiling as a racialized individual contributed to his pathway to criminality (Anderson, para 66). The gist of an IRCA is to provide the sentencing judge with the appropriate contextual cultural factors, which in this case is the historical and contemporary influence of Anti-Black racism on Canadian society. The report is carefully crafted by an individual who has “specialized knowledge, education and experience in the completion of such reports relating to systemic and background factors affecting the African-Nova Scotian Community” (Anderson, para 109). The sentencing judge imposed a conditional sentence with conditions tailored to the accused’s circumstances, including: having the accused reside at a certain address, providing support for the accused’s children and requiring the accused to attend Afrocentric therapy (Anderson, para 72).
At the heart of this case is the complex issue surrounding sentencing, which is that a sentence should be individualized and rehabilitative, but still be balanced against personal blameworthiness as well as have a deterrent coercive effect. This balancing becomes even more difficult in the case of Black Nova Scotians who have faced historical discrimination and continue to do so today as well. This includes but is not limited to enslavement at the hands of a colonial state, racial segregation, denial of property, and over-incarceration.
In order for an IRCA to be “credible”, it must be prepared to a “professional and authoritative standard” (Anderson, para 109). This means an individual with specialized knowledge about systemic and background factors must be the author of these reports. To add to this, aspects of IRCA cannot be challenged, such as the existence of racial prejudice, since it is an established fact that the aforementioned continues to occur every day in Canadian society (Anderson, para 111). The court even goes so far as announcing that a failure to consider an IRCA “may amount to an error of law” (Anderson, para 118).
More particularly the application of IRCAs ensures that a sentence is proportionate to both the gravity of an offence and the moral culpability of an offender (Anderson, para 114). The goal is to reduce the over-incarceration of Black offenders and therefore a conditional sentence for a serious firearms-related offence is appropriate. The IRCA changes the analysis as it provides the necessary context to sufficiently individualize a sentence. For this reason, the NSCA dismissed the Crown’s appeal and found that a conditional sentence is proportional in providing sufficient rehabilitation, denunciation, deterrence and restraint.
It is important to note that the Crown’s position during the appeal “evolved substantially” as it first sought that a conditional sentence is “demonstrably unfit” (para 164). The Crown asserted in its factum that conditional sentences could only be available in “exceptional circumstances” (Anderson, para 77). The intervenor, the African Nova Scotian Decade for People of African Descent Coalition, rightfully pointed out that the aforesaid was an “additional legal hurdle” (Anderson, para 77). This leads one to ask what caused the Crown to change their position before the appeal where they then found a conditional sentence can provide a “meaningful alternative”? I think one glaring fact of this case is the realization that the accused possessed a firearm for self-defence purposes rather than for perpetrating crimes. In R v Morris, 2021 ONCA 680 [Morris], which involved a similar scenario from the Ontario Court of Appeal (“ONCA”), found that the accused did not possess a gun for self-defence purposes. In particular, the ONCA rejected the trial judge’s finding that the accused had a loaded handgun in part because of his precarious mental state and feared for his life (Morris, paras 161-166). The NSCA properly understands that they cannot impose or assume their conception of the accused’s life is the appropriate interpretation.
Moreover, in discussing IRCAs, the judgement acknowledges that Indigenous peoples’ history is distinct, yet they have “experienced many of the same effects of discrimination and marginalization” (Anderson, para 92). The problem with the aforementioned is that it risks casting that all colonized populations share the same experiences and face identical discrimination. This approach significantly differs from Morris where the ONCA states “we do not agree that this court should equate Indigenous offenders and Black offenders for the purposes of s. 718.2(e)” (Morris, para 118). The reality is that sentencing in Canada prides itself on being truly individualized and this means considering the history of marginalized populations. The histories of Black Nova Scotians and Indigenous Peoples is manifestly different, although both, for instance, faced the dispossession of land by a colonial state. Black Nova Scotians were given tickets of location to deny them clear title to their land, thereby denying them the right to mortgage, sell or pass down their property (Anderson, para 97). In contrast, Indigenous Peoples of Canada faced a government that denies their sovereignty over ancestral lands and moved many into reserves. Hence, it becomes very difficult to say that both groups are ‘similar’ because they face systemic racism in Canada.
There is a question that continues to arise in Canadian jurisprudence: Why do courts keep facing this conundrum between the gravity of the offence and moral culpability of the offender?. The former focuses on the seriousness of the offence, while the latter enables for an exploration of how systemic factors may impact an individual’s life. These two contrasting forces signal that the criminal justice system must fix how it approaches sentencing. One peculiar issue is the fact that systemic factors that influence criminality, such as racism, are wholly ignored until the sentencing phase of a matter. This means that before sentencing an offender is conceptualized as a rational free-willed individual who weighs the pros and cons of certain actions (Anderson, para 91). This turning off and on of recognizing systemic factors results in an artificial barrier and analysis of an accused’s life. Therefore, Canadian courts will continue to grapple with how the gravity of the offence and moral culpability impacts a sentence, unless sentencing itself is overhauled. This means that the Canadian criminal justice system must re-invent the sentencing process or even consider accounting for systemic Anti-Black racism before a trial begins.
Finally, the NSCA should have addressed in their judgement the three criticisms from R v Ipeelee, 2012 SCC 13 [Ipeelee]. These are that: (1) sentencing is not an appropriate means of addressing overrepresentation, (2) IRCA’s provide a race-based discount for Black offenders and (3) similarly situated offenders may experience differing sentences (Ipeelee, para 64). By doing so, the NSCA can proactively avoid application errors that occurred when Gladue reports were introduced for Indigenous offenders. Canadian courts must avoid addressing issues after they occur and instead become an active player in making a difference in the lives of marginalized communities.