The federal government is adopting a pioneering Nova Scotia program aimed at ensuring Black offenders receive a fair sentence in criminal court.
Ottawa plans to spend a total of $8.2 million to fund reports called “impact of race and culture assessments” or IRCAs. The reports aim to help judges consider how systemic racism contributes to people’s interactions with the justice system. The federal government made the announcement in its fall 2020 economic statement.
“I think it’s really exciting and I think it speaks to the work that’s being done here in Nova Scotia,” said Brandon Rolle, a managing lawyer with Nova Scotia Legal Aid.
“The federal government is recognizing that work and recognizing that this could be important in every jurisdiction in the country.”
Nova Scotia Legal Aid worked hard to get IRCAs used in court. At first, legal aid paid for the reports and they were used as defence evidence. Now, in many cases, the court itself orders the reports.
The reports are extensive psycho-social assessments, says Robert Wright, a social worker and executive director of the Peoples’ Counselling Clinic, who wrote the first IRCA in 2014. A short while later, experts in Ontario started writing them.
He says IRCAs involve interviewing the person accused of a crime, their family, and anyone close to them. The assessment also examines someone’s criminal history, and how issues like poverty and racism impacted their lives. It also highlights the history of Black people in the province.
The report is usually done after someone is convicted but before they are sentenced. The report is meant to give a judge a fuller appreciation of the person and their background and to help determine whether they should go to a provincial jail, a federal prison or serve time in their community.
“We have to understand a person before we can impose a sentence. We have to know their history, their background and importantly the reason why the offence happened. If you don’t fully understand that, then a person is not going to get a just sentence,” said Rolle.
“If African Nova Scotians are over-represented in custody, if we’re getting harsher sentences and getting treated worse when in custody, that’s a problem that needs to be addressed.
“It’s directly associated with systemic racism. These reports are part of the solution in addressing that problem.”
‘Just sentencing, not lighter sentencing’
Last fall, the provincial government admitted systemic racism in the justice system has marginalized Black and Indigenous Nova Scotians.
That racism led to measures like street checks that targeted Black Nova Scotians to a massive over-representation of Black and Indigenous populations in jails and prisons
It also led to the justice system treating Black and Indigenous people much differently than it does white people, Wright said — everything from sentencing and parole, to access to programs and services in prison are different for them.
A landmark 1999 Supreme Court of Canada decision ruled that judges should consider alternatives to incarceration when sentencing Indigenous offenders and take into account their unique life circumstances. The Gladue decision was also intended to address the overrepresentation of Indigenous people in the criminal justice system.
The federal department of justice agrees with Wright.
“As the Office of the Correctional Investigator has reported, Black Canadians face profiling at every stage of the criminal justice system, from charging to sentencing to harsher treatment in correctional institutions, ” said Ian McLeod, spokesperson for the Department of Justice Canada, in an email.
“Black Canadians are over-represented in the justice system, representing 3.5 per cent of the population, yet constituting 7.2 per cent of federal inmates,” he said.
Rolle and Wright hope IRCAs can reduce that overrepresentation.
“We are not trying to make the system be easier on Black people than is warranted. We are trying to address the reality, the documented and acknowledged reality, that prior to now that Black people were almost assured that their treatment by the criminal justice system would be influenced significantly by the history of systemic racism,” said Wright.
“What we are really advocating for is just sentencing, not lighter sentencing.”
In a recent case, the Crown sought federal prison time for an individual while the defence wanted a community-based sentence. The judge ended up agreeing with the defence partly because of the assessment, said Rolle.
“That’s somebody that may have gone to jail who didn’t have to, because the judge recognized that the opportunity to rehabilitate that person lied in the community, not the jail setting,” said Rolle.
While the IRCAs are valuable, they are not a get-out-of-jail-free card, according to Halifax lawyer Laura McCarthy.
She said there’s no guarantee how much it will affect a judge’s decision.
“I’ve had cases where I’ve had reports and when you read them, they would make anybody cry because of the unfortunate situation that somebody has been through,” said McCarthy.
“I have asked the judge to give the person a decreased sentence taking that into consideration, and from my perspective they’ve gotten the same length of sentence that they would have got had they not gotten the report.”
McCarthy said there is nothing requiring a judge to say that an assessment changed the sentence, which makes it difficult to determine what kind of impact they’re actually having.
She thinks there should be some kind of formula in place to guide judges in determining how much a sentence should change based on the information in an assessment.
More research needed
Maria Dugas, a law professor at Dalhousie University in Halifax, has been studying cases involving IRCAs for about four years. She said more research needs to be done to determine how effective the assessments are.
“We need to look and do some sort of a comparative study about the cases where there have been these reports and the cases where there haven’t been these reports to determine what affect they’re actually having on sentencing,” said Dugas.
The federal government has not said exactly how or when its funding for IRCAs will roll out.
“While recognizing that the proposed funding has not yet been approved by Parliament, we have initiated preliminary discussions with legal aid plans and other stakeholders across the country to better position a potential implementation of impact of race and cultural assessments in other jurisdictions,” said McLeod.
Part of that federal money will most likely be used to train assessment writers, educate groups on the importance of the reports, and evaluate how IRCAs are used, said Megan Longley, the CEO of the Nova Scotia Legal Aid Commission.
“It’s very gratifying to see Nova Scotia leading the way in something that I think is a very important move forward for the justice system,” she said, “[It] really demonstrates to our lawyers who work really hard and are so dedicated that the work pays off and it makes a difference. And sometimes it makes a big difference on the national landscape.”