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Factoring in racism

In Canada, lawyers are pushing courts to consider systemic racism when sentencing black offenders

In Canada, courts are being urged to factor in systemic racism when sentencing black offenders

Defense lawyers in Ontario want to start pushing judges to consider how systemic racism may have contributed to the criminal activity of black offenders they are sentencing. 

While courts in the province have long recognized the relevance of race and racism when meting out punishment, what has been lacking is a specific mechanism to deal with the issue, argued Wayne van der Meide, a regional manager for Legal Aid Ontario.

The proposed cultural assessment — much like the Gladue report that judges, defense lawyers and Crown counsel can request when sentencing Aboriginal offenders —  would give judges expert evidence on how the person’s environment, as well as the history of racism in Canada, may have contributed to his or her criminal activity.

Van der Meide says the goal of cultural assessments would be to reduce the overrepresentation in prison of black people, who made up 9.5 percent of the inmates in 2013, but just three percent of Canada’s overall population.

“Death by gun violence has ultimately become normalized.”

It’s the same motivation behind Gladue reports, which were described as “indispensable” by a Manitoba chief justice back in 2012, although they have failed to make a dent in the over-incarceration of Indigenous people across Canada.

Cultural assessments are already being tested in Nova Scotia, most recently last week, during the sentencing of an African-Nova Scotian man who is also part Mi’kmaq.

Kale Leonard Gabriel was sentenced to 13 years of jail before being eligible for parole for the murder of Ryan White.

Gabriel confronted and shot White who was his rival in a drug turf war, the court heard. Gabriel denied pulling the trigger, however, testifying that the gun went off accidentally during a struggle between the two.

Campbell considered a Gladue report and a cultural assessment for Gabriel.

“Death by gun violence has ultimately become normalized and acceptable within a subsection of the African Nova Scotian community,” said the cultural assessment, prepared by a clinical social worker. “Death is regarded as an expected outcome in settling disputes.”

On top of chronic exposure to gun violence, black males in Nova Scotia are also dealing with systemic racism, a lack of help for mental health issues, and “limited access to secure employment and social opportunities,” the report noted.

“I think this is an issue that faces several racialized communities.”

But Justice Jamie Campbell, having considered the report, wrote that while “Family violence and criminality were a part of his family life,” they were “not all of it.”

“He was not left without moral guidance and had a mother who took a strong and active role in his life.”

Campbell wrote that while “his education was compromised to some extent by his identification and self-identification with his background,” that was “a series of choices” that he made himself.

“But they are also a product of his background and his environment,” he wrote.

Van der Meid plans to invite clinical social workers from Nova Scotia to speak with workers and other experts in Ontario about best practices when writing such a report.

After that, he said, Legal Aid would work with stakeholders to identify cases where a cultural assessment could be valuable to the courts and support those cases financially.

“I think this is an issue that faces several racialized communities. The growth in islamophobia comes to mind in particular,” he said. “Having said that, the stats — what stats there are — are very very striking.”

For example, black Canadian boys, between the ages of 12 and 17, are overrepresented in jails by a factor of four when compared to their representation in society.

The Supreme Court of Canada also hoped Gladue reports would address the over-representation of Indigenous people in Canadian prisons when it made a ruling that court must consider an Aboriginal offender’s background when he or she is being sentenced for a crime.

Indigenous people accounted for over 23 percent of the federal inmate population.

Eighteen years later, Gladue programs across the country have been underfunded and in many jurisdictions, the requirement has been ignored.

And the over-incarceration problem is getting worse: according to a 2013 report from the Office of the Correctional Investigator, Indigenous people accounted for over 23 percent — up from 17 percent in 2000 — of the federal inmate population, despite making up only 4 percent of the population as a whole.

Given the history of the Gladue report, critics, like federal correctional investigator Ivan Zinger, aren’t sure cultural impact assessments will help curb the number of black people in Canadian prisons, however, and say the focus should be on improving “socioeconomic, cultural and political rights of vulnerable segments of the Canadian population.”

“These are complex problems and they require complex, and multifaceted responses,” said van der Meide. “Legal Aid Ontario’s mandate is to provide access to justice, and we believe, as demonstrated by the experiences in Nova Scotia that cultural assessments can have a positive impact.”

Cover: Justin Tang/The Canadian Press

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