SHOULD BLACK CRIMINALS GET ‘CULTURAL ASSESSMENTS’ SIMILAR TO ABORIGINALS WHO BREAK THE LAW? SOME DEFENCE LAWYERS ARGUE IT WILL GIVE JUDGES A BETTER PICTURE WHEN SENTENCING.
Say judges should consider systemic racism
Canadian judges are being urged to take systemic racism into consideration before sentencing black criminals, similar to the special consideration often given to aboriginals who break the law.
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-outof-jail-free” card; it simply gives judges a fuller picture of their clients before their fates are decided.
Representatives for Legal Aid Ontario say they plan to start nudging Ontario judges to use so-called “cultural assessments” in the near future and will set aside some money for test cases.
“In Ontario, for decades, courts have recognized that black people … face systemic racism, but there hasn’t been a well-developed mechanism to deal with that,” said Wayne van der Meide, regional manager of case management and litigation.
“A cultural assessment report is the best mechanism to support judges to really understand the circumstances of the offender and how systemic racism has contributed to that person coming before the court.”
Van der Meide said he is taking cues from Nova Scotia, which has been home to an indigenous black community for 400 years and whose courts have used cultural assessments in a handful of cases.
In one 2014 provincial court case, the Crown sought an adult sentence for a 16-year-old black youth who was found guilty of attempted murder. After reviewing a cultural assessment prepared by the defence, the judge declined the request, noting that the assessment provided a “multidimensional framework for understanding (the offender), his background and his behaviours.”
Advocates say cultural assessments could help address the over-representation of black people in federal prisons. Currently, they make up three per cent of the general population but nine per cent of federal inmates.
But Canada’s federal prison ombudsman, Ivan Zinger, says he’s not convinced cultural assessments will change that. Similar assessments, known as Gladue reports, have been used in aboriginal cases for years, he said. Yet indigenous people still account for 26 per cent of the prison population, even though they make up less than five per cent of the general population.
“Adopting the same Gladue approach for Canadians of African descent may also not yield the desired outcome,” he said. “Investments in improving socioeconomic, cultural and political rights of vulnerable segments of the Canadian population may be a better approach.”
The family of one Nova Scotia murder victim has expressed concerns that cultural assessments diminish individual responsibility.
Last year, a Halifax jury found Kale Leonard Gabriel, 28, guilty of second-degree murder in the shooting death of Ryan White during a drug-turf dispute. The conviction brought an automatic life sentence, but a judge still had to decide Gabriel’s parole eligibility.
The defence asked the judge to hold off until a cultural assessment could be prepared and he agreed. At the time, White’s mother told local media an offender’s racial background shouldn’t matter.
“I think that a crime is a crime, and colour shouldn’t matter whatsoever,” Theresa White said. “It’s very difficult to try to forward your life when you’re being called back to that same sadness over and over.”
The assessment, written by clinical social worker Lana MacLean, noted gun violence had become normalized within a subsection of the African Nova Scotian community and death was “regarded as an expected outcome in settling disputes.”
Within this subgroup, one problem compounded upon another: chronic exposure to gun violence; systemic racism; limited job and social opportunities; difficult childhoods; and a lack of culturally relevant mentalhealth services.
The lives of some black youth are defined by a “constant alertness and guardedness” and the way they cope with despair is to turn to drugs or gangs. In this context, Gabriel might “hold the position of both victim and perpetrator,” MacLean suggested.
In his sentencing decision last month, Supreme Court Justice Jamie Campbell said he appreciated MacLean’s assessment, noting that an individual judge’s “common sense and understanding of human nature may offer little insight into the actions of a young African Nova Scotian male.”
It is “historical fact and present reality” that African Nova Scotians were and continue to be discriminated against, the judge said.
But while racial background may help understand the broader circumstances that acted upon an offender, it does not necessarily establish a lower standard of moral culpability.
The judge also pointed out that MacLean had spoken to Gabriel for four hours, so her observations of the experience of young African Nova Scotia men “may not apply to him individually.”
The judge declared Gabriel ineligible for parole for 13 years, going against the defence team’s wish for the minimum 10 years.
Nova Scotia Legal Aid lawyer Brandon Rolle said even though it wasn’t the outcome they wanted, the judge gave meaningful consideration to Gabriel’s African Nova Scotian background.
“I take the view that every African-Canadian offender should have the ability to present evidence pertaining to their cultural background to assist the trier of fact at sentencing,” Rolle said.
“Applying a cultural lens adds tremendous value because it allows the judge or jury to have a better appreciation for the lived experience of an African-Canadian individual that they might otherwise not consider.”
Rick Woodburn, president of the Canadian Association of Crown Counsel, declined to comment on the growing call for assessments, saying members had not been surveyed on the issue.
THE SAME APPROACH ... MAY NOT YIELD THE DESIRED OUTCOME.