This blog is part of a two part series from Schulich professors exploring the recent Nova Scotia Court of Appeal Case R v Anderson, 2021 NSCA 62. The second post will appear next week by Professor Maria Dugas.
Nova Scotia Court of Appeal Issues Guidance on the Sentencing of African Nova Scotians: Three Observations about R v Anderson 2021 NSCA 62
By: Professor Andrew Luesley
This appeal concerned the conditional sentence for non-violent, non-drug or gang related, weapons offences stemming from a random motor vehicle checkpoint stop and search that found Raykeem Anderson, an African Nova Scotian (“ANS”), to be in possession of a loaded .22 calibre revolver for self-defence purposes. Originally appealing the conditional sentence and seeking a period of incarceration of two to three years, the Crown ultimately accepted the conditional sentence but sought guidance from the court on “applying the principles of sentencing to offenders … who are of African descent.” For its part, the NSCA viewed the case as an “opportunity to take up the challenge set by the Supreme Court of Canada in R v Friesen for appellate courts to ‘set a new direction, bringing the law into harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders…’”. Here are three of my observations of the decision as a newcomer to Halifax, and as an African-Canadian so to speak.
1. Guidelines for Sentencing African Nova Scotians
The Nova Scotia Court of Appeal has laid out guidelines for the sentencing of African Nova Scotians, including the need for Crown prosecutors and sentencing judges to consider the impact of race and systemic racism on the moral culpability of the accused. This information does not need to be in the form of an Impact of Race and Culture Assessment (“IRCA”), but it should be asked and granted for in the sentencing of African Nova Scotians. The decision states that it is an error of law for judges to not consider the impact of race and systemic racism on the circumstances of the offence or on the accused with or without the benefit of an IRCA, and that they must do so expressly, not only identifying the systemic racism the ANS accused has faced, but also analyzing how they may have affected that accused’s moral culpability in committing the offence. Otherwise, they risk having their decision reviewed by an appellate court on the basis of an error in law. Prosecutors should also consider these impacts both in their sentencing recommendations and in their exercise of prosecutorial discretion. The judge must not require that ANS offenders present evidence of systemic anti-Black racism against African Nova Scotians. This information will likely be relevant to deciding whether a conditional sentence is appropriate (i.e. that a sentence of incarceration of two years less a day is in the range of proportional sentences). This decision also instructs lawyers and judges that there may (and in fact should) be cases where a marked departure from the historical sentencing range will be appropriate because historical precedents were set without the benefit of IRCAs or consideration of the impact of systemic racism on the circumstances of the accused or the offence.
2. Systemic Racism Against African Nova Scotians
Justice Derrickelaborates on the systemic racism experienced by African Nova Scotians arriving here up to 400 years ago. This systemic racism has included: legalized slavery, an inability to own property, and over-representation in the penitentiary system. Arbitrary searches, such as the one perpetrated against Raykeem in this case, racial profiling, and other aspects of over policing will obviously lead to over-representation ceteris paribus (i.e., or everything else being equal). Increased policing will lead to increased prosecution, which leads to increased incarceration, which leads to socio-economic consequences and increased recidivism. So, it’s a self-fulfilling prophecy. Justice Derrick outlines many of the aspects of the problematic history of systemic racism in Nova Scotia, including what’s been documented in the Wortley Report and the Marshall Inquiry. The decision reiterates what the SCC had said in R v RDS,  3 SCR 484 that judges are entitled to take notice of racism in Nova Scotia, but now goes on to say that judges must not only do so, but also must conduct a meaningful inquiry into the impacts that systemic racism has had on the moral culpability of any African Nova Scotian accused.
3. Does the Decision Impact All Racialized Persons Accused?
There is still some ambiguity as to who exactly the sentencing applies to, with some arguing that the case builds on R v Morris and opens the door for Gladue factors applying to all racialized people across Canada. A letter commending the decision, penned by the Canadian Association of Black Lawyers, seemingly blends the terms “Black” and “African Nova Scotians.” Early on in her reasons, Justice Derrick mentions that African Nova Scotians, racialized, and Black people would all be used somewhat interchangeable while also mentioning the Black Lives Matter movement generally, perhaps connecting the case to that larger movement. The modern approach to sentencing relied on by the trial judge and articulated by the court of appeal does apply to all racialized offenders. Namely individual circumstances are essential in the determination of a proportional sentence, and therefore other racialized groups can ask for IRACs and prove that their circumstances have been impacted by systemic racism. Systemic racism will not always minimize the moral culpability of an offender, nor will it always avoid a sentence of federal incarceration. The IRAC serves the purpose of deciding whether or not systemic racism has significantly impacted a person or the circumstances of an offence. The recent Bill C-22 supports this view, as it acknowledges the reality of overincarceration of racialized people and identifies the conditional sentencing regime as both a site of systemic discrimination and a potential tool for correcting this over-representation. R v Morris seems to affirm that systemic anti-Black racism can—and should be—taken judicial notice of.
The foundation laid by the NSCA for the sentencing of African Nova Scotian accused is important because for too long, people in the ANS community have been taught (sometimes even self-taught) that they don’t have a worthwhile future, and this is made worse when police officers, prosecutors, and judges may believe the same. The cycle of racial bias needs to be broken, and this decision and this approach helps to do that. The Royal Commission of Inquiry into the prosecution of Donald Marshall Jr. recommended that “the Chief Justices and the Chief Judges of each court in the province exercise leadership to ensure fair treatment of minorities in the system.” My observations from a distance are that with help from scholars like Dalhousie’s Professor Williams and Dugas, and lawyers like Drew Rogers of Nova Scotia Legal Aid, Chief Judge Pamela Williams of the Provincial Court and Justice Ann Derrick of the Nova Scotia Court of Appeal are doing just that.
 R v Anderson, 2021 NSCA 62 at para 2 [Anderson].
 Ibid at para 9.
 The NSCA Decision was released August 17, 2021, just two days after my family arrived in Halifax.
 My birthfather immigrated from Haiti, one of the countries where some early African Nova Scotian maroons may have come from or had connections too.
 Anderson, supra note 1 at para 144 citing Professor Maria Dugas. Professor Dugas has also been recently featured in a podcast that is quite prescient in light of how the NSCA has ultimately decided Anderson, as well as an earlier post in this blog that discusses the R v Anderson appeal prior to the NSCA’s decision.
 Ibid at para 118.
 Ibid at para 123
 Ibid at para 89.
 Ibid at para 131-135.
 Ibid at para 95-99.
 Ibid at para 47.
 Ibid at para 14.
 Ibid at para 99.
 The trial lawyer who argued Anderson.