A Call for Greater Consideration
Canadian defence lawyers are urging judges to give greater consideration to how systemic racism may have played a role in the actions of black criminals, similar to the consideration given to aboriginals.
The National Post reports “Defence lawyers behind the push say asking judges to consider how historic discrimination and marginalization may have influenced their clients’ behaviour is not meant to be a ‘get-out-of-jail-free’ card; it simply gives judges a fuller picture of their clients before their fates are decided.”
R. v. Gladue
The consideration being urged is similar to the Gladue report, which judges, defence counsel, or Crown Attorneys are able to request during pre-sentencing or bail hearings of Aboriginal offenders.
Gladue reports stem from a 1998 Supreme Court of Canada decision, R. v. Gladue, in which the Court ordered “ it is incumbent upon the sentencing judge to attempt to acquire information regarding the circumstances of the offender as an aboriginal person. Whether the offender resides in a rural area, on a reserve or in an urban centre the sentencing judge must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community of the particular offender. The alternatives existing in metropolitan areas must, as a matter of course, also be explored. Clearly the presence of an aboriginal offender will require special attention in pre‑sentence reports.”
Conflicting Points of View
Wayne van der Meide, regional manager of case management and litigation for Legal Aid Ontario told the National Post that his organization wants to encourage Ontario judges to employ cultural assessments, allocating funds for test cases.
Nova Scotia has used cultural assessments in a small number of cases, and van der Meide stated that courts in Ontario have recognized that black people have faced systemic racism for decades, but this has always been done without a formal mechanism.
The hope of Van der Meide and others pushing for this type of consideration is that the Canada’s black population will cease to be overrepresented in Canada’s prison system. According to Vice News, 9.5% of Canada’s prisoners are black, compared to only 3% of the Canadian population.
However, Canada’s federal prison ombudsman, Ivan Zinger, says that he isn’t sure cultural assessments will do anything to change the black population’s overrepresentation in prison. He told the National Post that Aboriginal Canadian’s still account for 26% of Canada’s prisoners, while making up less than 5% of the population despite years of use of Glaude reports. He said “Adopting the same Gladue approach for Canadians of African descent may also not yield the desired outcome,” adding, “Investments in improving socioeconomic, cultural and political rights of vulnerable segments of the Canadian population may be a better approach.”
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