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’s New Carding Policy: What the New Rules Mean for You

Written on Behalf of Affleck & Barrison LLP

After significant public outcry, Ontario has banned the practice of carding, also known as “street checks”. As of January 1, 2017, police in Ontario must follow new rules about when and how they can ask people to identify themselves, in certain circumstances.

New Rules for Identification

A new regulation prohibits police officers from collecting identifying information “arbitrarily” (i.e- based on a person’s race or a person’s presence in a high crime neighbourhood or area, among other factors).

The Minister of Community Safety and Correctional Services has stated that the regulation was drafted following consultations with the public on how to improve confidence and trust in the police:

These new rules protect the rights of people who are not under investigation while also laying the foundation for more positive, trusting and respectful relationships between police and the public

When Do the New Rules Apply?

The new rules will apply if an officer asks you to identify yourself while the officer is:

  • Investigating suspicious activities
  • Gathering intelligence
  • Looking into general criminal activity in a community.

This will not apply if the officer is:

  • Talking to you during a traffic stop
  • Arresting or detaining you
  • Executing a warrant
  • Investigating a specific crime

What Does This Mean for People Who Are Stopped by Police?

Now, if an officer asks you for ID in a situation where the rules apply (see above), the officer must:

  • Have a reason for asking for your ID
  • The reason cannot be:
    1. Based on race
    2. Arbitrary (i.e- have no meaning)
    3. That you are in a high-crime area
    4. Because you walked away or refused to answer a question
  • Tell you why they want your identification
  • Tell you that you can refuse to provide your identification
  • Offer you a receipt (even if you refuse to share information)
  • The receipt must include:
    • The officer’s name
    • The officer’s badge number
    • Information about how to contact the Office of the Independent Police Review Director (OIPRD), which is responsible for handling complaints about the police in Ontario
    • Information on who to contact in order to access the personal information that the police has on file about you
  • Keep a detailed record of their interaction with you (even if you refuse to share information)

Exceptions to the Rule

There are some limited exceptions to the new rules. If following the rules negatively effects an investigation, threatens public safety, or forces officers to reveal confidential information, police officers may not have to:

  • Tell you why they are asking for your identification (i.e.- if the officer is speaking to you because they have received a tip from a confidential informant)
  • Tell you that you have a right to refuse to give you identification (i.e.- if the officer suspects that a passenger in your vehicle might be a victim of human trafficking)
  • Provide you with a receipt (i.e.- if the officer receives an urgent call requiring their attention and must quickly end their interaction with you).

In any such instance where the new rules are not followed, the officer must record their reasons for not following the rules.

We will continue to follow developments with the new rules and what they will mean in practice for those interacting with the police and will update our readers as necessary.

In the meantime, if you have questions about your rights, or interactions with the police, or if you have been arrested or charged with an offense, schedule a free consultation with one of our knowledgeable and experienced Oshawa lawyers. We have 24-hour phone service for your convenience. contact our office online or at 905-404-1947.