By: Maria Dugas, Assistant Professor, Schulich School of Law
At a time when citizens are standing united to protest anti-Black racism, companies, celebrities and professional athletes are using their platforms to argue for change, and some politicians are waking up to the idea that systemic anti-Black racism exists, I wonder whether the criminal justice system, and more specifically, the judiciary in Nova Scotia, will exercise their authority to seek justice for Black people in this province.
Systemic anti-Black racism is deeply entrenched in all aspects of the criminal justice system. That’s been true from its earliest days. It wasn’t until 1834 that legislators and the judiciary in Nova Scotia declared slavery illegal. We know that the courts were used to affirm White people’s property rights in enslaved Black people. We know that the courts were used to control where Black people were allowed to go.
We have seen the Wortley Report and the Independent Legal Opinion by Chief Justice McDonald and Jennifer Taylor; we know that Black people are six times more likely to be street checked by police than White people in Nova Scotia, and we know that this practice is illegal. We know that 30% of Black males in Halifax have been arrested for a crime at some point in their lives, compared to 6.8% of the White male population. We know that this is a result of systemic racism and the association of Black skin with criminality, not that black people commit more crimes. We know that Black people are disproportionately overrepresented in fatal encounters with police. We know that Black people are overrepresented in every aspect of the criminal justice system, incarceration in particular.
We know that in 2017–2018, African Nova Scotians represented 2% of Nova Scotia’s population, but 10% of the incarcerated population. Despite this overrepresentation, we know that Black people are underserved while incarcerated, without access to culturally relevant programming or services. We know that incarcerated Black people are more likely to be placed in maximum-security prisons despite being rated as low risk to reoffend; that Black people are overrepresented in disciplinary segregation; and that Black people are overrepresented in use of force incidents by prison staff, among many other issues.
We also know that Black people are underrepresented as judges, lawyers, and law professors.
We want to know whether the judiciary is going to use its authority to address the justice system’s complicity in perpetuating systemic anti-Black racism. The upcoming appeal in R v Anderson provides such an opportunity.
Mr. Anderson was convicted of multiple weapons-related offences after he was stopped by police while driving and found to be in possession of a loaded revolver. Chief Judge Williams, after addressing the overincarceration of Black people in Canada, and the unique experiences of Black people living in Nova Scotia, opted for a more responsive approach and sentenced Mr. Anderson to a conditional sentence of 2 years less a day and 2 years’ probation.
CJ Williams had the benefit of an Impact of Race and Culture Assessment (“IRCA”), which helped her to understand the historical and ongoing anti-Black racism in Nova Scotia, and the effect of this racism on Mr. Anderson’s lived experiences. This is important because judges are required to consider a person’s circumstances when determining what sentence is appropriate. Where the person being sentenced is Black, their race and experience of racism are necessarily part of the circumstances that the court should consider.
The Crown appealed CJ Williams’ decision on March 11, 2020. It raised five grounds of appeal: (1) that she erred in law by considering inadmissible opinion evidence; (2) that she erred in principle in her considerations of denunciation and deterrence; (3) that she underemphasized denunciation and deterrence; (4) that she ordered a sentence that was demonstrably unfit; and, as in common on appeal, (5) such other grounds of appeal as may appear from a review of the record.
On July 7, 2020, the Justice Working Group of the African Nova Scotian Decade for People of African Descent Coalition (“ANSDPAD”) filed a Notice of Motion for Leave to Intervene in the appeal. In its simplest form, their position is that the African Nova Scotian community should have a voice at the table when the Nova Scotia Court of Appeal (“NSCA”) is being called on to address whether and how anti-Black racism and the lived experiences of African Nova Scotians are taken into account in sentencing. The Ontario Criminal Lawyers Association (“CLA”) also filed a Notice of Motion for Leave to Intervene on July 7, 2020. They will provide insight on how IRCAs are being used in Ontario and make submission on how the sentencing principles should be applied to Black people. The Crown consented to both Motions and the Court granted leave to both the ANSDPAD and the CLA on October 14, 2020.
The NSCA will hear the appeal in March 2021. It will be the first time that the appellate court will address the use of IRCAs in sentencing Black people in this province. If the case is heard before R v Morris, a similar decision on appeal to the Court of Appeal for Ontario, it will be the first time that any appellate court in the country hears the issue. As such, the NSCA has an opportunity to set the foundation for IRCAs going forward. At the very least, they should hold that this type of evidence is admissible. They should also establish the framework for how courts can acquire and meaningfully consider systemic evidence in sentencing. Ideally, they will also declare these types of reports mandatory, such that it would be an error of law to not consider systemic, race-based factors when sentencing a Black person.
These reports will not eliminate the existence of anti-Black racism in this province, but they will help to remedy its effects in the criminal justice system and address the overincarceration of Black people in this country.
 See e.g. Delancey v Woodin, 1880.
 For example, Viola Desmond was fined, jailed, and convicted for refusing to leave the “whites only” section of the Roseland Theatre in New Glasgow.
 See e.g. Akwasi Owusu-Bempah, & Scot Wortley, “Race, Crime, and Criminal Justice in Canada” in Sandra Bucerius & Michael Tonry, eds, The Oxford Handbook of Ethnicity, Crime, and Immigration (London: Oxford University Press, 2014) at 297. See also, David M Tanovish, “Using the Charter to Stop Racial Profiling: The Development of an Equality-based Conception of Arbitrary Detention” (2002) 40 Osgoode Hall LJ 145 at paras 33–34.
You can hear more from Maria Dugas on the DLJ Podcast: https://soundcloud.com/user-653954800/ep-10-maria-dugas-impact-of-race-and-culture-assessments-1