R v Jackson: A New Standard for Social Context in Sentencing Law
This guest post was contributed by third-year Osgoode Hall Law School student Jamie Shilton (JD, Class of 2019).
No serious assessment of the Canadian criminal justice system would be complete without an observation that its normal, everyday functioning incarcerates vast and disproportionate numbers of Black and Indigenous peoples. In a recent article, Akwasi Owusu-Bempah and Scot Wortley cite data which reveal that the proportion of Black Canadians in custody is more than three times their proportion of the overall population, while the proportion of Indigenous peoples in custody is nearly five times their proportion of the total. For Owusu-Bempah and Wortley, the major cause of this crisis is “Canada’s… historical treatment of racialized peoples and its involvement in both French and British colonialism,” which “continue[s] to haunt racial minorities in the country.”
The recent decision of R v Jackson (2018 ONSC 2527) [Jackson], authored by Justice Nakatsuru of the Ontario Superior Court, attempts to seriously grapple with the appropriate role of criminal sentencing in the context of this history. In this sense, Jackson is part of the broader turn to reparative justice in Canadian sentencing. This turn began in 1996 with the enactment of s. 718.2(e) of the Criminal Code (RSC 1985, c C-46) which states that sentencing judges are to consider sanctions other than imprisonment, “with particular attention to the circumstances of Aboriginal offenders.” In the R v Gladue (, 1 SCR 668) [Gladue] decision, the Supreme Court acknowledged the over-incarceration of Indigenous peoples and its origins in systemic discrimination, concluding that s. 718.2(e) was intended to remedy these issues to the extent that this was possible in the context of sentencing. The primary holding in Gladue was a necessary reform of the sentencing of Indigenous offenders – an instruction to sentencing judges that they must consider the particular circumstances of Indigenous peoples in the context of a settler-colonial society. However, in a discussion whose full implications were not acknowledged by lower courts for another few years, the Court also confirmed that consideration of any offender’s circumstances within their broader social context is, in fact, a normal part of the individualized sentencing process.
Jackson follows a line of cases in the mid-2000s in which the Ontario Court of Appeal considered how Gladue would applied in the sentencing of Black Canadians as well as other non-Indigenous, socially disadvantaged offenders. Though the Court agreed that social context is a valid consideration in sentencing non-Indigenous offenders in R v Borde ((2003) 63 OR (3d) 417 (ONCA)) [Borde], its subsequent decision in R v Hamilton ((2004), 72 OR (3d) 1 (ONCA)) [Hamilton ONCA] seemed to impose limits on what social context evidence should be pursued by judges and how social disadvantage should be considered, with Justice Doherty cautioning that sentencing is “not the forum in which to right perceived societal wrongs” (Hamilton ONCA, para 2). In Jackson, Justice Nakatsuru sought to move beyond Hamilton, and in doing so refined the approach to sentencing which emphasizes the necessity of social context evidence, an expanded conception of responsibility for the offence, and reparative justice.
The Borde and Hamilton Sentencing Framework
In Borde, the Ontario Court of Appeal was called upon to review a five-year prison sentence which a trial court had imposed on a young Black man. Counsel for the defence argued that the historical circumstances of Indigenous peoples and Black Canadians were analogous, and that the Gladue framework should therefore apply in the sentencing of Black offenders. Justice Rosenberg dismissed the need for a direct analogy, but nevertheless agreed that the reparative justice principles in s. 718.2(e) and Gladue have broad application. Justice Rosenberg explicitly acknowledged the realities of anti-Black racism and over-incarceration, and determined that the “systemic factors facing African Canadians, where they are shown to have played a part in the offence, might be taken into account in imposing a sentence” (Borde, para 27).
Justice Rosenberg’s holding in Borde was used in support of a much more expansive approach to social context evidence and social disadvantage in the controversial Hamilton trial decision ((2003), 172 CCC (3d) 114 (ONSC)) [Hamilton ONSC]. In that case, Justice Hill drew on Gladue in stating that the individualized nature of sentencing, and the need to consider all relevant evidence in the determination of a fit sentence, meant that “important systemic and background circumstances playing a part in the offence should be relevant to do justice in every case” (Hamilton ONSC, para 221). In order to acquire evidence of systemic and background factors, Justice Hill adopted highly unconventional practices, introducing over 1000 pages of his own research into evidence and requesting that the Crown produce numerous statistical reports for his consideration.
The defendants in Hamilton were two poor Black single mothers who had been recruited by large criminal enterprises to transport cocaine into Canada. Reviewing the evidence, Justice Hill observed that poverty and systemic racism had made Black Canadians, and single mothers in particular, vulnerable to exploitation (Hamilton ONSC, para 198). The decisions of the defendants to agree to transport cocaine could not be understood without reference to those systemic and background factors, for whose continued existence, Justice Hill noted, Canadian society was (and remains) ultimately responsible. It would therefore be wrong to treat the decisions to commit the offences as purely individual matters, cut off from the broader social context which structured the circumstances of the defendants. Rather, it was necessary to acknowledge the measure of collective responsibility borne by broader society (Hamilton ONSC, para 221). As stated by the Irish Law Reform Commission, from whose report Justice Hill quotes, “society has obligations toward offenders” in such circumstances (Hamilton ONSC, para 192). With all this in mind, Justice Hill concluded that “systemic and background factors… should logically be relevant to mitigate the penal consequences” for the defendants (Hamilton ONSC, para 224), and imposed sentences which were far less severe than previous case law would dictate.
The Crown appealed the two sentences. Justice Doherty, writing for a unanimous court, agreed that Justice Hill had made several errors in principle. The Court of Appeal directed much criticism toward the conduct of the trial proceedings, with the court accusing Justice Hill of having “stepped outside of the proper role of a judge on sentencing” and established “a de facto commission of inquiry” on “broad societal issues that were not raised by the parties” (Hamilton ONCA, paras 3, 70).
While Justice Doherty affirmed Borde and the principle that social context can be considered in the sentencing of non-Indigenous offenders, he tightened the requirement for a causal connection, writing that the statistical and social science evidence acquired by Justice Hill could not support a finding that the immediate circumstances of the defendants were the “direct result” of systemic factors (Hamilton ONCA, para 137). “The fact that an offender is a member of a group that has historically been subject to systemic racial and gender bias”, wrote Justice Doherty, “does not in and of itself justify any mitigation of sentence” (Hamilton ONCA, para 137). Going even further to repudiate Justice Hill’s decision, the Court of Appeal warned that if “societal ills” are given too much weight on sentencing, “an individual’s responsibility for his or her own actions will be lost” (Hamilton ONCA, para 140).
In sum, the Hamilton appeal decision seemed to discourage trial judges from actively pursuing the acquisition of social context evidence, raised the causality threshold for mitigation due to social disadvantage, and, by cautioning against “right[ing] perceived historical wrongs” (Hamilton ONCA, para 2), cast doubt on the application of reparative justice principles outside of the sentencing of Indigenous offenders.
Refining the Approach in Jackson
The proceedings in Jackson took place against the backdrop of increasingly critical public debates on policing and criminal punishment, as well as a surge in community organizing and political action in the Black community. The defendant in Jackson was a Black man from a town in Nova Scotia which had “a well-documented history of racial tension”, and who had pleaded guilty to weapons charges in 2016 (Jackson para 32). The case received media attention after the hearings because defence counsel had asked Justice Nakatsuru to make consideration of systemic and background factors mandatory in the sentencing of Black offenders. Though Justice Nakatsuru declined to go so far, his judgment builds on the Borde/Hamilton decisions by clarifying how judges can acquire social context evidence, revising the Court of Appeal’s holding on the necessary degree of causality, and re-centring the principles of restorative justice.
The Jackson decision provides considerable resources for overcoming the Court of Appeal’s narrow interpretation of the judicial function in relation to the acquisition of social context evidence. Echoing Justice Hill’s comments from the Hamilton trial decision about the necessity of this kind of evidence, Justice Nakatsuru wrote that considering the circumstances of each offender in their appropriate context “has always been the fundamental duty of a sentencing judge in sentencing anyone” (Jackson, para 115). To assist future sentencing courts in fulfilling this duty, Justice Nakatsuru built on earlier decisions in which courts took notice of anti-Black racism, including R v Parks ((1993) 15 OR (3d) 324 (ONCA)) and R v Golden (2001 SCC 83), by declaring that the time has come for judges to take notice of colonialism, slavery, segregation, and systemic racism, and their contribution to over-incarceration, when sentencing Black offenders.
While judicial notice can assist in filling out the necessary background, case-specific information is still needed in order to complete the individualized process of sentencing. To that end, Justice Nakatsuru reaffirmed the judicial powers under ss. 723(3) and 721(1) of the Criminal Code to order the production of evidence and pre-sentence reports for the purpose of illuminating the relationships between systemic factors and the individual’s circumstances. Additionally, counsel for Jackson’s defence submitted an “impact of race and culture assessment” (IRCA), which was prepared by a social worker and presents case-specific information about the impact of anti-Black racism in a manner analogous to a Gladue report. While Justice Nakatsuru distinguishes IRCAs from Gladue reports, he acknowledges that IRCAs “have the potential to provide a bridge between an accused’s experience with racial discrimination and the problem of over-incarceration” (Jackson para 101). IRCAs could be useful in future cases for defence counsel wishing to assist courts in making the connections between systemic factors and the individuals before them.
Importantly, Justice Nakatsuru also reconsidered the Court of Appeal’s statements on the necessary relationship between systemic factors and the offence. In the Hamilton appeal decision, the court specified that systemic and background factors could only be considered if the immediate circumstances of the offender were the “direct result” of those factors. In Jackson, Justice Nakatsuru reconsidered this requirement in light of cases like Ipeelee (2012 SCC 13) [Ipeelee]. In that case, the Supreme Court acknowledged that the interconnections between histories of colonialism and our present realities are highly complex and may be difficult for claimants to prove, and cautioned against “impos[ing] an evidentiary burden on offenders that was not intended by Gladue” (Ipeelee, para 82). Applying this, Justice Nakatsuru concluded that requiring “a direct causal connection… would simply impose a systemic barrier that would only perpetuate inequality for African Canadians” (Jackson, para 112).
Finally, the Jackson decision affirmed that a sentencing hearing is in fact a forum in which “perceived societal wrongs” may be addressed. Justice Nakatsuru drew on the broad language on reparative justice in Gladue, in which the Supreme Court determined that “the purpose of s. 718.2(e) is to respond to the problem of overincarceration in Canada” (Gladue, para 50) and that the provision “has a remedial purpose for all offenders” (Gladue, para 44). With this statutory interpretation in mind, Justice Nakatsuru acknowledged that the over-incarceration of Black Canadians is “an acute problem”, and concluded that “[s]ection 718.2(e) can be resorted to in order to address this particular problem” (Jackson, para 79). In the end, Justice Nakatsuru relied on this authority to impose a significantly less severe sentence than had been requested by the Crown.
In the Hamilton trial decision, Justice Hill wrote that “[i]n the sentencing process, society cannot shirk its responsibility, such as it may be, for the offender being before the court” (Hamilton ONSC, para 221). Implicit in this statement, and in Justice Nakatsuru’s decision, is a duly complex understanding of responsibility which rejects the assumption that it is individual moral failure which brings people into contact with the criminal justice system, and instead situates criminalized conduct within powerful and destructive social and economic systems. Jackson encourages sentencing courts to embrace this understanding of criminal behaviour by considering social context evidence, framing responsibility for the offence as a collective rather than individual matter, and applying reparative justice principles. The decision therefore sets a new standard for actors in the criminal justice system who wish to do what they can in their respective roles to address social disadvantage in all its forms. Though it is a trial decision which is not binding on courts of the same level, the clarity and force of the Jackson decision makes it a significant development in the law of social context in sentencing.
While it is important to acknowledge the significance of Jackson, we should remain aware that as a social policy, the ruling has some limitations. The Jackson framework only kicks in at the end of a long process of social deprivation, racist discrimination, criminalization, policing, and prosecution. In Ipeelee, the Supreme Court reviewed statistics on the worsening over-incarceration of Indigenous peoples, and could not escape the conclusion that s. 718.2(e) and Gladue “ha[ve] not had a discernible impact on the overrepresentation of Aboriginal people in the criminal justice system” (Ipeelee, para 63). Six years later, despite the Court’s efforts in Ipeelee, statistics indicate that the problem has only gotten worse. While Jackson is a step in the right direction, much broader solutions are necessary to end the deep structural racism which drives the over-incarceration of Black and Indigenous people in Canadian society.