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DLJ Podcast – Ep 25 – Deanne Sowter – The Future Harm Exception and Coercive Control

Join student editor, Sydney, and Deanne Sowter, a doctoral candidate at Osgoode Hall Law School, and a Research Fellow with the Winkler Institute for Dispute Resolution. She is also an Adjunct Professor at Western Law and at the University of Calgary, Faculty of Law. They discuss her paper published in the DLJ titled “The Future Harm Exception: Coercive Control as Serious Psychological Harm and the Challenge for Lawyers’ Ethics”.

Resources:
DLJ Article: digitalcommons.schulichlaw.dal.ca/dlj/vol4…/iss2/8/
Deanne’s Twitter: twitter.com/deannesowter

 

DLJ Podcast – Ep 24 – Catherine Watson Coles – Lawen Estate and the NS Testators’ Family Maintenance Act

Join student editor, Tarah, and Catherine Watson Coles, a partner at McInnes Cooper in Halifax who specializes in estates and trusts, as they discuss a paper published in the DLJ by Jane Thompson titled “Disinheritance, Discrimination, and the Case for Including Adult Independent Children in Dependants’ Relief Schemes: Lawen Estate v Nova Scotia”.

Resources:
DLJ Article: digitalcommons.schulichlaw.dal.ca/dlj/vol44/iss2/10/
Catherine’s McIness Cooper Profile: www.mcinnescooper.com/people/catherine-watson/

Philosophical Counseling Applied to Mediation

Philosophical Counseling Applied to Mediation

By Professor Nayha Acharya

In January, 2022, I participated in the International Conference on Philosophical Counseling, hosted by the University of Delhi. My talk was titled “Philosophical Counseling Applied to Mediated Conflict Resolution: A Pathway to Justice.” I have taken the opportunity to collect and share some of my preliminary reflections about the emergent field of philosophical counseling and its expansive potential to contribute to discourses within Alternative Dispute Resolution (ADR) theory and practice.

Philosophical counseling is a type of applied philosophy that presumes that as a person becomes more aware of their thought processes, underlying worldviews, and value structures, they become better equipped to notice and correct fallacies in their thinking, problematic assumptions, and internally inconsistent or conflicting values. Such critical awareness of one’s underlying conceptions can lead towards a more integrated, grounded, and meaningful life. In essence, a person is helped to ‘philosophize’ about themselves and about life, and they emerge from that process as better integrated human beings. From what I gathered from the presentations that I heard at the conference, a philosophical counselor is less a pathologizing therapist, and is better thought of as a wise well wisher that can, without imposing any way of thinking or values, open avenues for a person to become intellectually, emotionally, and spiritually integrated. Through such self-understanding, a person becomes equipped to take on life’s challenges and dilemmas from a cohesive, strong centre. I am new to the field of philosophical counseling, but I am grateful to have found it, as I believe it has tremendous potential to enrich dialogues about conflict resolution and mediation which should, in my view, centre on the type of personal empowerment that philosophical counseling holds as key to a good life.

For the past three decades or so, mediation has been increasingly embraced in legal contexts, and various iterations of mediation have found their way into all Canadian civil justice systems. I see this as a generally positive trend, but the problem is that the mediation programs that are connected to courts most often slip into a legalistic approach. Rather than making space for open andfree dialogue and exploration, which are the qualities that make mediation deeply valuable, the parties (and their lawyers, and often the mediators too) tend to focus on what a judge is likely to decide, and they use that as a starting point to wrangle over dollar amounts. Law remains the primary normative framework in this type of process, which prevents mediation from being a space where parties can be empowered to self-create the norms that will guide their resolution. This erases the very reason that mediation could be a profound complement to adjudicative dispute resolution.

There are several reasons why this happens. In part it is because lawyers, who are usually involved, are steeped in the legal system, so they see most conflicts through the legal lenses. Many clients are likely to prefer their lawyers to take such legalistic approaches because it aligns with their pre-conceptions of what lawyers should do.  So, legal norms remain primary, and the dispute resolution revolves around application of law rather than around helping people to create norms based on their own value systems. As lawyers, we are comfortable with figuring out what legal norms are and explaining to clients how they may apply, but we may not be well equipped to enable people to self-determine a normative way forward. This suggests that lawyers are not well positioned to be very helpful when it comes to rich mediation, which does not, and should not, depend on only legal norms, but should be contingent on self-determination, autonomy, and dignified dialogue.

This is where philosophical counseling may help. The foundational goal of philosophical counseling aligns with the broad goal of mediation that I described—that is, to equip people to critically perceive their own worldviews, and to see how those underlying views influence their actions. In a mediation context, such perception would allow someone to appreciate why they are approaching a conflict in a particular way and can help them to deeply evaluate their approaches and actions, and even potentially shift their value structures. This has the potential to give a person a sense of autonomy, empowerment, and authorship in the dispute resolution context, as opposed to being limited to acting as a subject of the law and the legal system only.

Because of this basic alignment, I felt that the techniques that are used and debated within philosophical counseling discourse could be instructive in the mediation context too. Speakers discussing techniques tended to converge on the central idea of engaging a client in a process of verbalizing their philosophical conceptions, values, and perceptions. This is relevant in the context of a legal conflict because concepts, values and perceptions are likely all relevant in varying degrees. A party could be encouraged to dig into and verbalize their concept of what constitutes ‘fairness’ or ‘justice’ or ‘forgiveness,’ for instance, to determine how these concepts may be impacting their approach to the dispute. In terms of values: many conflicts have ethical or values-based components, and upon philosophical introspection, a person may find that their sense of what is right or wrong could be hazy or internally inconsistent, which can lead to a sense of uneasiness or indecision. Being able to perceive and critically analyze one’s ethical underpinnings can result in a better formulated value set, which can assist in well-reasoned conflict resolution. In terms of perceptions: often at the heart of a conflict there are faulty or one-sided perceptions, and an assisted examination of what perceptions are influencing the parties can lead to their recalibration, which can help move parties towards resolution. Ascertaining and verbalizing the concepts, values, and perceptions can help a party determine why they take the positions they do in a conflict and can affect a movement away from positionality to a place of curiosity and exploration of what lies beneath the commitment to any position, which is a key element of principled negotiation.

Several philosophical counselors who spoke at the conference referred to Socratic questioning as a method of enabling such exploration with clients. Many of their comments resembled the type of questioning that may be helpful in a mediation context. For instance, gently asking questions like “why is that important to you?” or “what could be the cause of your perception?” or “why do you feel that your position is fair?” which may be the type of questions posed by philosophical counselors, are likely used frequently by mediators as they nudge parties towards mutual understanding. More deeply understanding the philosophical counseling approach to questioning could, however, encourage mediators to emphasize the added dimension of asking questions that may lead to a deeper self-understanding (as opposed to orienting primarily towards understanding the other) and encouraging a philosophical look at one’s general approach to life (as opposed to exploring only the reactions, feelings, perceptions that relate directly to the conflict). This learning could be a source of deeper empowerment for parties to a dispute.

Dr. Michael Picard, one of the invited speakers at the conference, made an additional point that I found especially valuable and unique. He argued that there is necessarily no formula or method that a philosophical counselor should adopt and adhere to. Rather, they should be attuned to the ‘visitor’ who they are engaging with, and that attuned engagement would set a spontaneous path forward for the dialogue between the two. Having the attunement of a wise well-wisher has parallels to the Hindu idea of a Guru who shoulders the responsibility of making their students integrated human beings, which other speakers also made note of. While a mediator cannot take on the role of Guru, attunement as the catalyst for spontaneous, client-centred dialogue was a stimulating idea that I think has much utility in the mediation context.

Allowing one’s attunement to guide a dialogue struck me as a rich conception and expression of neutrality. Just as a philosophical counselor is not there to impose any method or system on the visitor, a mediator should generally not impose their pre-conceptions on parties either. In the mediation context, rather than thinking of neutrality as requiring distance from both parties, perhaps a mediator could think of neutrality as being equally attuned to both parties. I asked Dr. Picard how a philosophical counselor equips themselves to serve as a methodless, attuned well-wisher in the way he described. Dr. Picard’s answer focused on the idea that to engage in a philosophical dialogue, a person must have wisdom. I had not often heard of wisdom as a necessary characteristic of a mediator, but I find it to be a worthwhile avenue to explore further—what does wisdom mean? How is it cultivated? How is it expressed? These questions could benefit significantly from exploring Indigenous traditions and Eastern wisdom traditions.

This relates to the final point that makes philosophical counseling so compelling to me: it is rooted in an integration of ‘Eastern’ and ‘Western’ ideas to form a truly holistic approach. As Dr. Louis Marinoff noted in his comments after his keynote address, philosophical counseling has deep roots in India’s rich traditions, philosophies, and spiritual exploration. The thinkers that were invoked by speakers at the conference ranged from Plato to Epicurious to Heidegger to Carl Jaspers to Buddha to Kabir to Aurobindo to Achenbach to J Krishnamurti, and to the unauthored ancient Vedic texts of India. The result was an enlivening exchange of ideas of a quality that I had never experienced before, rich and diverse in intellect, emotion, and spirituality.

When I was first invited to submit a paper to the International Conference on Philosophical Counseling, I felt skeptical about what I could possibly contribute or gain from a field that seemed foreign to mine. But participating in it showed me what there is to gain by thinking beyond my silo and opened my eyes to the true value of inter-disciplinarity and cross-cultural exchange. I have offered these thoughts (though they are still in their early stages) as an expression of gratitude for that learning.

DLJ Podcast – Ep 23 – Adelina Iftene – Prison Law and the COVID-19 Pandemic

Join Zainab and Adelina Iftene, Assistant Professor of Law and Associate Director of the Health Law Institute, as they explore her research into prison law and the COVID-19 Pandemic. This interview follows topics from Professor Iftene’s article in the Dalhousie Law Journal title “COVID-19, Human Rights and Public Health in Prisons: A Case Study of Nova Scotia’s Experience During the First Wave of the Pandemic”.

Adelina’s past, current and upcoming major research projects investigate issues surrounding aging in Canadian penitentiaries; the regulation of health care provision in prisons; the regulation of end of life and medical assistance in dying in prisons; prison release mechanisms, in particular compassionate release; access to justice behind bars; and sentencing of older and sick individuals.

Resources:
DLJ Article: digitalcommons.schulichlaw.dal.ca/dlj/vol44/iss2/9/
Professor Iftene’s Twitter: twitter.com/adelina_iftene
Dalhousie Profile: www.dal.ca/faculty/law/faculty-staff/our-faculty/adelina-iftene.html

DLJ Podcast – Ep 22 – Suzie Dunn – Gender-based Violence Online

Join Lauren and Suzie Dunn, Assistant Professor in Law & Technology, as they explore her research with The Centre for International Governance Innovation’s “Supporting a Safe Internet” project.

Professor Dunn’s research focuses on gender-based violence that occurs online.

Resources:
The Centre for International Governance Innovation’s “Supporting Safer Internet Project”: www.cigionline.org/activities/supporting-safer-internet/
Professor Dunn’s Website: www.suziedunn.com
Dalhousie Profile: www.dal.ca/faculty/law/faculty-staff/our-faculty/suzie-dunn-.html

 

Gender-testing in sport: World Athletics’ DSD Regulations are Inconsistent with the International Olympic Committee’s new Framework on Fairness

By: Professor Maria C. Dugas

On November 16, 2021, the International Olympic Committee (IOC) released its Framework on Fairness, Inclusion and Non-discrimination on the Basis of Gender Identity and Sex Variations (the “Framework”).[1] This post will highlight some of the inconsistencies between the Framework’s principles and World Athletics “2018 Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development)” (“DSD Regulations”).[2]

The Framework:

seeks to promote a safe and welcoming environment for everyone involved in elite-level competition, consistent with the principles enshrined in the Olympic Charter. The Framework also acknowledges the central role that eligibility criteria play in ensuring fairness, particularly in high-level organised sport in the women’s category.[3]

The IOC is explicit that they are not creating rules and regulations. Instead, the Framework is meant to help sporting organizations, like World Athletics, develop criteria that are applicable in their context, like elite-level track and field. That said, the principles set out in the Framework call into question the legitimacy of World Athletics’ DSD Regulations, and begs the question: will World Athletics revoke them?

Before highlighting the inconsistencies between the Framework and the DSD Regulations, a bit of context. World Athletics (formerly the IAAF) is the governing body for the sport of athletics (e.g. track and field). They have been regulating who is eligible to participate in the “female” category at elite-level competition essentially since the beginning.[4] Most recently, their regulatory efforts have used testosterone levels to define who is eligible to compete in the female category. Initially the threshold was set at 10nmol/L, but that was lowered to 5nmol/L in the DSD Regulations. Athletes who are identified (through invasive physical and mental assessments) to have differences of sex development and testosterone levels above 5nmol/l must reduce their testosterone levels to compete in the female category in middle-distance running events.

The DSD Regulations were created in response to the Court of Arbitration (CAS) for Sport suspending the 2011 IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition,[5] following a complaint by runner Dutee Chand.[6] Chand successfully argued that the 2011 Regulations were prima facie discriminatory and that World Athletics failed to adduce sufficient evidence to conclude that testosterone increased female athletic performance such that participation in female events was unfair.[7] The DSD Regulations rely on two scientific “studies”, BG17 and BKHE18, to conclude that testosterone increases athletic performance for female athletes in middle distance running events (400m to 1mile) such that regulation is necessary to achieve “fairness” in the sport.[8]

Caster Semenya, a South African runner and multi-Olympic and World Champion middle-distance runner, challenged the DSD Regulations to CAS in 2018. Joined by Athletics South Africa (her National Federation), Semenya argued that the DSD regulations were discriminatory, unreasonable, unnecessary, disproportionate, and arbitrary. Although CAS had some concerns with the regulations,[9] it ultimately rejected her challenge. Her appeal to the Swiss Federal Tribunal was also dismissed.[10] Her case is currently before the European Court of Human Rights (ECtHR).

Back to the inconsistencies between the DSD Regulations and the Framework. The Framework establishes 10 principles that:

should be taken into consideration by International Federations and other sports organizations when exercising their responsibility in establishing and implementing eligibility rules… ensuring safe and fair competition in the context of inclusion and non-discrimination on the basis of gender identity and sex variations.[11]

Although the IOC states the Framework should be considered as a whole, this comment focuses on principles 1 to 3, 5 to 7, and 9. Principle 1 is the inclusion principle. It outlines that everyone should be welcome and able to participate in sport “safely and without prejudice” and that the sporting environment should be welcoming to people of all gender identities. It also states that where eligibility criteria are established, this should be done in a manner that respects the principles set out in the Framework. Because the DSD Regulations set out eligibility criteria, it should be reviewed for consistency with the Framework. As will become evident, the DSD Regulations oppose safety and inclusion because they single out athletes with DSD and subject to them to unnecessary medical intervention.

Principle 2 prioritizes athlete’s physical, psychological, and mental well-being in establishing eligibility criteria, and the need to prevent negative impacts on athletes through the design, implementation, or interpretation of eligibility criteria. As Semenya argued at the CAS, the DSD Regulations, and gender regulation in sport more broadly, cause severe harm.[12] They exclude Relevant Athletes from competing in female events; they force women to undergo intrusive medical assessments, including measuring the size of their clitoris. Women will suffer psychological harm as a result of being stigmatized and labelled; women will most likely face public scrutiny since it is “virtually certain” that cases will become publicly known; and the Relevant Athlete will likely undergo medical treatment that has adverse mental and physical health risks, including cardiovascular disease, sterility,[13] depression, fatigue, osteoporosis, muscle weakness, low libido, and metabolic problems. As a result, the athlete may require life-long hormone replacement treatments.[14]

Principle 3 addresses non-discrimination. Eligibility criteria should not “systematically exclude” athletes based on their gender identity, physical appearance and/or sex variations. Further, “no athlete should be subject to targeted testing because of, or aimed at determining, their sex, gender identity and/or sex variations.” The DSD Regulations explicitly violate this principle. First, the common basis for a complaint that an athlete should be investigated for compliance with the DSD regulations is appearance—typically where the athlete’s appearance does not conform with the ideal of “western femininity”.[15] Second, the regulations explicitly target and seek to identify athletes with DSD, which is classified as a sex variation. Third, testosterone regulation is a subset of the broader gender-regulation context, which has historically been about identifying who is/is not a woman.[16]

Principles 5 and 6 speak to perceived athletic advantage and the need for evidence. Principle 5 requires that no athlete is excluded from participation based on an “unverified” competitive advantage and that athletes should not be deemed to have an unfair advantage until evidence determines otherwise, in accordance with principle 6, which sets evidentiary standards. The evidence should be based on “robust and peer reviewed research” that demonstrates a “consistent, unfair, disproportionate competitive advantage” that “exists for the specific sport” being regulated. BG17 and BKHE18, the two reports said to support the DSD Regulations, were not peer reviewed because the authors would not release the full dataset.[17] They have been highly criticized, including by the World Medical Association, as being “highly flawed,”[18] “weak,”[19] and “clearly unreliable.”[20] The studies were also performed by doctors associated with World Athletics, which is a conflict of interest.[21]

Principle 7 relates to health and bodily autonomy. First, no athlete should be “pressured… to undergo medically unnecessary procedures of treatment to meet eligibility criteria.” World Athletics has a history of pressuring athletes to undergo treatment, including unnecessary surgical interventions.[22] The most common way for athletes to maintain their eligibility is through oral testosterone suppressants. World Athletics successfully defended using oral contraceptives for this purpose at CAS. Although discriminatory, CAS ruled that the use of oral contraceptives was not disproportionate because there was insufficient evidence to show oral contraceptives alone caused social, mental, and psychological problems, and because the side effects are “not different in nature to those experience by the many thousands, if not millions, of other XX women, who take oral contraceptives.”[23] CAS is not saying there are no side effects to the medically unnecessary treatment, just that women experience similar side effects in other contexts (importantly, not related to sports participation, but done for legitimate medical reasons like preventing pregnancy).[24] Second, athletes should not be required to undergo gynaecological or other invasive physical examinations aimed at determining their sex, sex variations, or gender. The DSD Regulations explicitly require gynaecological and other physical examinations to determine whether athletes have DSD.[25]

Finally, principle 9 addresses the right to privacy. It precludes the use of an athletes’ medical information, including testosterone levels, for purposes that are not disclosed to the athlete at the time of collection. For example, where medical information is collected for anti-doping purposes, it cannot be used to determine testosterone levels for non-anti-doping purposes, like determining whether an athlete is Relevant Athlete under the DSD Regulations.  Again, the DSD regulations explicitly contravene this principle. Not only did BG17 and BKHE18 use samples obtained for anti-doping purposes to conduct their studies,[26] but the DSD Regulations state that samples collected for anti-doping purposes are a reliable source to trigger an investigation into whether an athlete is a “Relevant Athlete under the Regulations.”[27]

This is not an exhaustive assessment of how the Framework interacts with the DSD Regulations. That will follow in due time. However, this brief overview does highlight numerous inconsistencies between the two. In addition to Semenya’s human rights complaint, the United Nations identifying various possible human rights violations in the DSD Regulations,[28] and the World Medical Association demanding their the immediate in 2019,[29] the inconsistencies identified here emphasize that World Athletics should suspend the DSD Regulations.

[Read more…]

Anderson Mini-Symposium: Anderson, Morris, and the need to consider systemic anti-Black racism in sentencing Black Canadians

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].

Anderson Mini-Symposium: Nova Scotia Court of Appeal Issues Guidance on the Sentencing of African Nova Scotians: Three Observations about R. v. Anderson 2021 NSCA 62

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.”[1] 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…’”.[2]  Here are three of my observations of the decision as a newcomer to Halifax[3], and as an African-Canadian[4] 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”)[5], 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,[6] 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.[7]  Prosecutors should also consider these impacts both in their sentencing recommendations and in their exercise of prosecutorial discretion.[8] 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.[9]

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.[10] The decision reiterates what the SCC had said in R v RDS, [1997] 3 SCR 484 that judges are entitled to take notice of racism in Nova Scotia,[11] 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.[12] 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.

4. Conclusion

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.”[13]  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[14], Chief Judge Pamela Williams of the Provincial Court and Justice Ann Derrick of the Nova Scotia Court of Appeal are doing just that.

[1] R v Anderson, 2021 NSCA 62 at para 2 [Anderson].

[2] Ibid at para 9.

[3] The NSCA Decision was released August 17, 2021, just two days after my family arrived in Halifax.

[4] My birthfather immigrated from Haiti, one of the countries where some early African Nova Scotian maroons may have come from or had connections too.

[5] 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.

[6] Ibid at para 118.

[7] Ibid at para 123

[8] Ibid at para 89.

[9] Ibid at para 131-135.

[10] Ibid at para 95-99.

[11] Ibid at para 47.

[12] Ibid at para 14.

[13] Ibid at para 99.

[14] The trial lawyer who argued Anderson.

DLJ Podcast – Ep 21 – Naiomi Metallic – Searching for Superchief

Join Tom and Naiomi Metallic, Assistant Professor of Law and Chancellor’s Chair in Aboriginal Law and Policy at Schulich School of Law, as they discuss her paper from the Osgoode Hall Law Journal, “Searching for Superchief and Other Fictional Indians: A Narrative and Case Comment on R v Bernard”

Naiomi recounts her experiences litigating the case dealing with Mi’kmaq hunting rights, the story of Stephen Bernard and the major problems with the decision.

Resources:
Naiomi’s paper: digitalcommons.schulichlaw.dal.ca/dlj/vol4…/iss1/5/
Dalhousie Profile: dal.ca/faculty/law/faculty-staff/our-faculty/naiomi-metallic.html 

 

DLJ Podcast – Ep 20 – Hilary Young – The Scope of Canadian Defamation Injunctions

Join Tom and Hilary Young, Associate Professor at the University of New Brunswick Faculty of Law, as they discuss her paper from the DLJ, “The Scope of Canadian Defamation Injunctions”

Hilary gives an overview of her research into defamation injunctions in Canada, their appropriate scope, and how they’re frequently overbroad.

Resources:
Hilary’s paper: digitalcommons.schulichlaw.dal.ca/dlj/vol4…/iss1/5/
UNB Profile: www.unb.ca/faculty-staff/direc…ung-hilary.html.com

 

https://soundcloud.com/dallawjournal/dlj-podcast-ep-20-hilary-young-the-scope-of-canadian-defamation-injunctions