Mental health

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.

OHRC: Every Inmate in Northern Ontario Jail has Mental Health Issues

Written on Behalf of Affleck & Barrison LLP

The Ontario Human Rights Commission (OHRC) continues to shine a slight into prison conditions across the province. A recent visit to a prison in Northern Ontario by the OHRC’s Chief Commissioner has revealed that all inmates in the facility are suffering from mental illness, addictions, or cognitive impairment.

OHRC Visiting Facilities Across Ontario

As we’ve previously discussed, since her appointment in 2015, Renu Mandhane, the Chief Commissioner, has made a point of visiting jails across the province. The Commissioner has recently been visiting jails in Northern Ontario and speaking to First Nations community members, municipal leaders, and inmates.

Concerning Conditions

One of the Commissioner’s most recent visits was to the provincial jail in Kenora, Ontario, approximately 200 km east of Winnipeg. The Commissioner recognized that management at the Kenora prison has done a good job of limiting the use of solitary confinement. At 10%, the facility has some of the lowest rates of segregation use in the province.

However, 90% of the inmates at that facility are First Nations and, according to the Commissioner, all are suffering from mental health issues, including addiction or various forms of cognitive impairment. Following her visit, the Commissioner indicated several other areas of concern, including the fact that many of the inmates come from remote First Nations communities north of Kenora, and many may never have left their home communities prior to their arrest. Cultural disruption is a big factor, with the Commissioner noting that English is often not the first language of these inmates, and that their families are often hundreds of kilometers away, precluding regular family visits.

The Commissioner has said:

There’s never really a light shone on these places and when we think about who is most vulnerable, you have to include the prison population, especially when we know that First Nations, racialized people and people with mental health disabilities are over-represented.

The Commissioner also met with members of the public at the Ne-Chee Friendship Centre to discuss, among other things, the despair that might be a contributing factor in the suicide epidemic that has been sweeping northern First Nations communities. Further discussion about poverty, homelessness, and affordable housing is expected in the aftermath of the visit.

The Ontario Ombudsman is also investigating practices in prisons across Ontario.

We will continue to update our readers about ongoing concerns with prison conditions in the province, and will blog as further information becomes available.

The Oshawa criminal lawyers at Affleck & Barrison we have been protecting client rights since 1992. Our skilled team has significant experience defending a wide range of criminal charges and protecting our client’s legal interests.  We are available 24 hours a day, and offer a variety of payment options, including Legal Aid. Whatever the nature of your offence, we can help. Call us at 905-404-1947 or contact us online for a free consultation