Human Rights

Canadian Judges Urged to Consider History of Systemic Racism When Sentencing Black Offenders

Written on Behalf of Affleck & Barrison LLP

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.”

If you are facing criminal charges, contact the skilled Oshawa criminal lawyers at Affleck & Barrison online or at 905 404 1947. For your convenience, we offer 24-hour phone services and a free confidential consultation. We are available when you need us most.

Ontario Human Rights Commissioner Calls for End to Solitary Confinement in Ontario Prisons

Written on Behalf of Affleck & Barrison LLP

We’ve previously blogged about prison conditions in Ontario. The issue is now back in the news following the visit of the Chief Commissioner of the Ontario Human Rights Commission (OHRC) to the Thunder Bay District Jail and her subsequent calls for an end to segregation in the province’s correctional facilities.

The Chief Commissioner, Renu Mandhane, visited the jail in early October where she met Adam Capay, a 23-year old inmate Aboriginal inmate from the Lac Seul First Nation in Northwestern Ontario, who had been held in solitary confinement for more than 1,500 days (or 4 years). Mr. Capay had been detained in a basement, alone, in a plexiglass cell, where the lights were on for 24 hours a day. Mr. Capay had no conception of whether it was day or night.

After meeting Mr. Capay, the Chief Commissioner reported that Mr. Capay appeared to be suffering from memory and speech problems as a result of the conditions in which he was being held, and that he showed signs of self-harm.

Mr. Capay’s confinement began in 2012, when, while serving time at the Thunder Bay Correctional Centre, he was involved with a violent confrontation with another inmate, resulting in that inmate’s death. Mr. Capay was subsequently charged with first degree murder, and sent to solitary confinement. He was 19 years old at the time. To date, Mr. Capay has never had a trial, has never been convicted of anything, and has not been sentenced for a crime. Yet, he has been locked in solitary confinement for 52 months.

The Ontario Human Rights Commission on Solitary Confinement in Correctional Facilities

In January 2016, the OHRC provided the Ministry of Community Safety and Correctional Services with written submissions on the use of segregation (i.e.- solitary confinement) in correctional facilities in Ontario.

Following the Chief Commissioner’s visit to the Thunder Bay Correctional Centre, the OHRC made supplementary submissions with additional commentary. The new report indicates that there is a “gross reliance on and overuse of segregation” in Ontario’s correctional facilities and that these issues are “systemic”. Statistics indicate that between October and December of 2015, more than 4,100 Ontario inmates spent at least one day in segregation. More than 1,500 of these inmates, or almost 40% of them had a “mental heath alert” on file.  Almost 25% of segregations exceeded two weeks (15 days being the UN recognized threshold for torture).

Public Outrage about the Conditions Mr. Capay was Held In

Since Mr. Capay’s circumstances were brought to light, there has been significant public outrage. The Globe and Mail’s editorial board wrote a scathing editorial criticizing the “inhuman treatment” of Mr. Capay, and asking “those who allowed this to happen” to be held accountable. The editorial board pointed out, among other things, that

The only thing Ontario prison officials haven’t done to this poor man is shackle him upside down on a dungeon wall. But they may as well have. Mr. Capay is arguably being tortured by the state. The sensory deprivation caused by constant light is an acknowledged torture technique, and the United Nations says that holding a person for more than 15 days in solitary is in itself a form of torture.

Indeed, as the board points out, the Supreme Court of Canada has previously acknowledges that any delay longer than 30 months between the laying of a criminal charge/charges and the completion of trial is a violation of the accused person’s fundamental Charter right to trial within a reasonable period of time. Mr. Capay’s 1,500 day incarceration is approximately 100 times longer than the 15 day window that the UN considers solitary confinement constituting torture.

The Response

Premier Wynne has stated that she is “very troubled” by the circumstances, and that “it is very disturbing and shouldn’t happen”, but would not comment on whether anyone would be held accountable for what happened to Mr. Capay, saying only that the Liberal government would conduct an additional review of solitary confinement in the province.

David Orazietti, the province’s Correctional Services Minister has since committed to ensuring no other Ontario inmate is held in conditions with 24-hour per day light, and that all inmates have daily access to medical care.

It remains to be seen what the final outcome of this shocking mistreatment of an inmate will be. Since the Chief Commissioner shed light on Capay’s mistreatment, he has been moved to a different cell with lights that can be dimmed, and access to a day room and a television.

We will follow developments in this matter and blog about updates as they become available.

At Affleck & Barrison our firm and its predecessors have been representing clients charged with criminal offences and protecting their rights since 1992.  Our lawyers are extremely knowledgeable and are experienced at defending a wide range of charges.  Call us at 905-404-1947 or contact us online for a free consultation. We offer 24-hour phone service for your convenience, and a variety of payment options, including Legal Aid. Whatever the nature of your offence, we can help.

Transgender Rights Bill Introduced by Liberals

Written on Behalf of Affleck & Barrison LLP

Justin Trudeau’s Liberal government has introduced new legislation which aims to extend human rights protection to transgender Canadians. The announcement was made on May 17, 2016 –  the International Day Against Homophobia, Transphobia and Biphobia –  and marks a major step forward in the fight to protect the human rights of transgender people across the country.

Justice Minister Jody Wilson-Raybould tabled Bill C-16 which would amend the Canadian Human Rights Act and the hate crime provisions in the Criminal Code include “gender identity” and “gender expression” as prohibited grounds of discrimination. The legislation would amend the Code such that if a crime is motivated by hate based on gender identity, a judge must consider that as an aggravating factor in sentencing.


At a press conference, Justice Minister Wilson-Raybould said, “No one should be refused a job, disadvantaged in the workplace, be unable to access services or be the target of harassment and violence because of their gender identity or gender expression.”

But the Bill must still pass through the House of Commons and the Senate before it becomes law. A similar transgender rights bill brought by the NDP was previously passed by the House of Commons during the last session of parliament, but it never made it past the Senate. This is the seventh time such a bill has been introduced in the House of Commons, but the first time it has been introduced by the current government.

Although previous cases of transgender rights discrimination were heard by federal Human Rights tribunals and courts, they did so on the basis of provisions prohibiting discrimination based on sex.

Of Canada’s 13 provinces and territories, eight, including Ontario, already have provisions protecting transgender people under their human rights laws, but only five cover both gender identity and gender expression.

Although it is less controversial in Canada, transgender rights have recently become the subject of heated debate in the United States after North Carolina passed a law that prohibits people from using public washrooms that do not correspond to the gender on their birth certificates.

To speak with an experienced criminal defence lawyer about your rights, please contact Affleck & Barrison online or at 905-404-1947.