Appeals

Guidelines Provided by Nova Scotia Appeal Court for Sentencing Black Offenders to Impact all Canadians

Written on behalf of Affleck & Barrison LLP

Following the recent appeal decision in Nova Scotia, we anticipate a change in the sentencing of Black and Indigenous offenders in Canada as all trial judges are asked to consider how racism and marginalization has influenced them.

The highest court in Nova Scotia has provided guidelines for judges to use in sentencing African Nova Scotians in a recent appeal court decision released last month in the case of Rakeem Rayshon Anderson (“Anderson”).

Anderson was convicted of five firearms offences following a random police vehicle stop in November 2018 in which police found a loaded .22 calibre revolver in his waist band. He received a conditional sentence of imprisonment in the community along with a number of conditions and two years probation.

Justice Anne Derrick, writing on behalf of a five-member panel, wrote:

Appellate courts have a responsibility in such circumstances to equip judges sentencing offenders of African descent with the tools to craft fit sentences.

SENTENCING OF RAKEEM RAYSHON ANDERSON

The Crown prosecutor had initially requested that Anderson serve a federal prison sentence of two to three years to reflect the seriousness of crimes involving firearms. Anderson’s lawyer presented an Impact of Race and Cultural Assessments (“IRCA”) and requested a conditional sentence to be served in the community. IRCA are used in Nova Scotia to provide sentencing judges with information regarding the challenges African Nova Scotians face in the justice system.

Chief Judge Pamela Williams sentenced Anderson in February 2020 to a conditional sentence of two years less a day, along with two years probation.

The Crown originally appealed Anderson’s sentence on the basis that it was too lenient. However, as this case made its way through the appeal process, all parties, including the Criminal Lawyers’ Association and African Nova Scotia Decade for People of African Descent Coalition (who were intervenors on appeal), asked the Court of Appeal to provide direction for sentencing and guidance regarding how to use cultural assessments.

IMPACT OF RACE AND CULTURAL ASSESSMENTS

Similar to the reports prepared on behalf of some Indigenous offenders (referred to as Gladue reports), IRCAs provide information regarding a Black offender’s history of exclusion and marginalization. According to the latest decision in Nova Scotia, IRCAs should be provided to the sentencing judge or risk the sentencing decision being overturned on appeal.

Anderson’s cultural assessment disclosed that he grew up in poor living conditions and only went to school until Grade 6.

According to the assessment, Anderson was not involved in any criminal activity, but only carried a firearm as he feared for his own safety. Natalie Hodgson, one of the authors of Anderson’s IRCA, indicated that individuals from “trauma and marginalized” communities are inclined to arm themselves in order to achieve a “heightened sense of self-security”.

The IRCA also indicated that Anderson had lost four friends as a result of by violence. In his 20s he lived in the North End of Halifax in substandard housing, amongst poverty and crime and where gun possession was acceptable and considered the norm.

Justice Derrick wrote in the appeal decision:

IRCAs set a new table for sentencing offenders of African descent in a regime that has been shaped through an over-reliance on incarceration for Black offenders and their concomitant disproportionate representation in Canada’s prisons and jails.

According to the federal government’s latest statistical profile of the correctional system, in 2017-2018 Black offenders made up 7.3% of federal offenders, which is more than double the 3.5% of Black Canadians according to the 2016 census.

 THE APPEAL DECISION

Justice Derrick noted in her decision on behalf of the appeal court that examining the systemic issues facing African Nova Scotians could reduce the levels of incarceration of Black individuals in the community.

The moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism.

The court of appeal dismissed the Crown’s appeal and concluded that sentencing judges “must take into account evidence of systemic and background factors and the offender’s lived experience, ideally through an IRCA, at every step in the sentencing process” and in determining a just sentence.

Brandon Rolle, a lawyer representing one of the Intervenors on appeal, considered the decision to be “historic”. He stated:

The Anderson decision is a historic decision that signals a shift in the landscape when we talk about sentencing African Nova Scotians. … This decision will directly impact every African Nova Scotian being sentenced from this point forward. African Nova Scotians are a distinct people with a unique history, and this decision acknowledges that historical reality.

 We will continue to monitor the developments following this important decision coming out of Nova Scotia and will report its impact on any future criminal case law in Canada in this blog.

If you are facing criminal charges, contact the experienced and skilled Oshawa criminal lawyers at Affleck & Barrison online or at 905-404-1947. We take all steps needed to protect your best interests, both immediate and long term. For your convenience, we offer a 24-hour phone service and a free confidential consultation. Whatever the nature of your offence, we can help.