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 first post was by Andrew Luesley can be found here.
Anderson, Morris, and the need to consider systemic anti-Black racism in sentencing Black Canadians
By Professor Maria Dugas
I have written elsewhere about the need to meaningfully consider historical and systemic anti-Black racism in sentencing Black people in Canada.[1] Last November, I specifically asked whether the Nova Scotia Court of Appeal (NSCA) would exercise its authority to seek justice for African Nova Scotians, by addressing the justice system’s complicity in perpetuating systemic anti-Black racism, through the use of Impact of Race and Cultural Assessments (IRCAs) in sentencing processes and decision making.[2]
R v Anderson, 2020 NSPC 10, has been on my radar since Chief Judge Pam Williams issued her trial decision in January 2020. CJ Williams sentenced a young African Nova Scotian man convicted of multiple weapons-related offences to a conditional sentence of 2 years-less-a-day and 2 years’ probation. She spoke at length in her decision about systemic factors and the inability of a term of incarceration to meaningfully hold Anderson accountable for his actions and to meaningfully rehabilitate him. At one point, she asked, “Do I impose a sentence of incarceration that I know will not help or do I impose a jail term in the community, affording the opportunity to blend principles of deterrence, denunciation with restorative options of accountability and reparation?”[3] She chose the latter option.
I was not surprised when the Crown appealed the decision in March 2020, under the pretext of “seeking guidance” on how race-based arguments are relevant to sentencing. When CJ Williams issued her decision in January 2020, there were multiple cases in Nova Scotia that included IRCAs.[4] Arguably, Anderson was a case where the IRCA was the deciding factor between the convicted person serving their sentencing in prison or in the community. Given the overuse of incarceration in this country (particularly for Black and Indigenous convicted persons), and the over-reliance on incarceration to deter and denounce serious crimes like weapons offences, it is perhaps logical that the Crown would appeal this decision. Left untouched, Anderson could open the door for more “lenient,” i.e., non-carceral, sentences for weapons offences.
It became even more apparent that Anderson was an important case when the NSCA opted to sit a five-person panel to hear the appeal. Justices Fichaud, Beveridge, Farrar, Derrick and Beaton heard the appeal on March 30, 2021. The unanimous decision penned by Justice Anne S. Derrick was released almost four months later, on August 17, 2021. Justice Derrick wrote the first published decision involving an IRCA, R v X, 2014 NSPC 95, when she was a provincial court judge. X prompted the slow but steady movement to include IRCAs and race-based arguments in multiple sentencing decisions involving Black convicted persons in Nova Scotia and other parts of the country. It is fitting that Justice Derrick also wrote the first appellate decision on the issue in Anderson.
The NSCA’s decision does several important things, two of which I will summarize here. First, this decision puts to rest concerns that I raised in “Committing to Justice: The Case for Impact of Race and Cultural Assessments in Sentencing African Canadian Offenders” about the use of “this is not Gladue”-type arguments and reasoning from defence counsel and the courts. These arguments suggested that the remedial considerations relevant in sentencing Indigenous people should not be applicable to Black people, as the Criminal Code only explicitly mentions the former in section 718.2(e). Justice Derrick noted at paragraph 93 that background and systemic factors are “similarly relevant” in sentencing convicted persons of African descent as Black people “have experienced many of the same effects of discrimination and marginalization” as Indigenous people in Canada.[5] She also quoted from Ipeelee, where the Supreme Court of Canada emphasized that s 718.2(e) is not limited to Indigenous convicted persons. At paragraph 118, Justice Derrick held that failing to consider systemic and background information could amount to an error of law.
Second, Anderson also addresses the need for judges to meaningfully consider how IRCAs and race-based factors inform their sentencing decisions. This moves us away from “I have considered it”-type decisions, where judges mention the relevant race-based factors without explaining how they have considered them in their sentencing decision. Justice Derrick held at paragraph 123 that failing to provide detailed reasons could be grounds for appeal. Detailed reasons from sentencing judges will enable community and superior courts to evaluate whether the race-based information was considered and help to establish a body of caselaw that addresses what it means to take anti-Black racism into account at sentencing.
This note would be incomplete without talking about another IRCA decision from the Court of Appeal for Ontario (ONCA). On November 8, 2021, the ONCA released its decision in R v Morris, 2021 ONCA 680, which was heard shortly before Anderson, in February 2021.[6] Morris involved similar issues to Anderson, namely, what use can be made of race-based information in sentencing. The Morris court also sat a five-person panel, signaling the importance of the decision. There were also 10 intervenors on appeal, including the Black Legal Action Center, the David Asper Centre for Constitutional Rights, and the Canadian Association of Black Lawyers.[7]
In many respects, Morris is a victory. The court endorsed the use of systemic and background information in sentencing Black convicted people and concluded that a Conditional Sentence Order can be an appropriate sentence for gun-related offences. The court also stated that the “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario” which formed part of the IRCA, that Justice Nakatsaru appended to the sentencing decision, “bears reading and re-reading by those called upon to prosecute, defend, and sentence Black offenders…”[8]
This net-positive reading of Morris and the welcomed outcome in Anderson do not mean that there are no conversations left to be had on the issue of addressing anti-Black racism in the criminal justice system (particularly in sentencing processes), nor that we have solved the issue of the overincarceration of Black Canadians. The legal issues may be settled for now, as neither case has been appealed to the Supreme Court of Canada. But there remain some problematic aspects of Morris that need to be addressed. For example, the Court asserted that Black Canadians do not have unique conceptions of justice to distinguish the process for considering systemic and background factors in sentencing Black Canadians from the process for sentencing Indigenous people using the Gladue framework. Perhaps there was no evidence before the court on this point. Saying there was no evidence is different than asserting that it does not exist. Professor Michelle Williams’ 2013 article, African Nova Scotian Restorative Justice: A Change Has Gotta Come,[9] speaks to this issue, as I am sure other scholars and community members have as well.
Together, Anderson, Morris, and the funding from the federal government to roll IRCAs out across the country, hopefully mean that the justice system is taking important steps to begin to address the overincarceration of Black Canadians. This work is not done. To be clear, considering systemic and background factors in sentencing is only one of multiple interventions necessary to address the systemic anti-Black racism in our criminal justice system.
[1] Maria C Dugas, “Committing to Justice: The Case for Impact of Race and Culture Assessments in Sentencing African Canadian Offenders” (2020) 43:1 Dal LJ 103, online (pdf): <digitalcommons.schulichlaw.dal.ca> [perma.cc/JH5S-DJVW].
[2] Maria C Dugas, “Committing to Justice: Will the Nova Scotia Court of Appeal Uphold Cultural-Based Sentencing for Black People?” (23 November 2020), online (blog): Dal LJ Blog <blogs.dal.ca/dlj/11/23> [perma.cc/PN2W-8W7L].
[3] R v Anderson, 2020 NSPC 10, at para 105.
[4] The reported ones are referenced in my article from note 1.
[5] R v Anderson, 2021 NSCA 62 [Anderson] at paras 92-93.
[6] R v Morris, 2021 ONCA 680 [Morris].
[7] The other intervenors are: Aboriginal Legal Services, Criminal Lawyers’ Association, South Asian Legal Clinic of Ontario, Chinese and Southeast Asian Legal Clinic and Colour of Poverty/Colour of Change Network, Canadian Muslim Lawyers Association, the Urban Alliance on Race Relations, and the Canadian Civil Liberties Association.
[8] Morris, supra at para 43.
[9] Michelle Y Williams, “African Nova Scotian Restorative Justice: A Change Has Gotta Come” (2013) 36:2 Dal LJ 419 at 430, online (pdf): <digitalcommons.schulichlaw.dal.ca> [perma.cc/YPV6-LKCP].