Gladue-Type Sentencing Needed for Blacks in Canada

The controversy over the shootings in Dallas and protests all across the U.S. are not confined to that country alone. The Black Lives Movement is alive and well in Canada, most visibly stopping the Pride Parade last weekend in Toronto to draw attention to their cause.

But what is their cause in Canada, if much of the media attention and high profile incidents are largely American?

Janaya Khan recently articulated some of the issues that Blacks face in Canada. We have an abysmal record when it comes to justice issues related to First Nations, with indicators worse than our American counterparts.

Yet, the federal government is required to collect data about First Nations based on its fiduciary duty in constitutional law. No such obligation exists for other populations, but some data has been collected recently to provide insight into our correctional system.

Khan points to the 2013 Correctional Investigator Reports on Ethno-Cultural Diversity in Corrections, which indicates that over the past 10 years the Aboriginal incarcerated population increased by 46.4%. Horrific indeed, but the report notes that the visible minority groups among the incarcerated population, defined as Black, Asian, and Hispanic, increased by almost 75%.

It seems we have an acute and growing race problem in Canada.

The most disproportionately represented visible minority group in federal penitentiaries are Blacks, who are 9.5% of the inmate population but only 3% of the total population, reflecting an increase of 80% since 2003/04. To make it worse, Black inmates are frequently treated more poorly by corrections staff than other inmates, including use of maximum security and segregation, institutional charges, and “force incidents.”

The exceptional power granted to prison guards is ripe for abuse. The Ontario Ombudsman has noticed a trend over the past few years where excessive force has been used against defenseless and vulnerable inmates inappropriately, and many of these incidents are never reported. The most recent Ombudsman report states,

13 There is a common theme in cases involving brazen acts of violence against inmates. Those responsible for assaults are emboldened by their faith in the code of silence – an unwritten social incentive to protect and show solidarity for co-workers, even if it means conspiring to lie, destroy, and falsify records. Staff who breach this code become victims themselves. They are labelled “rats,” ostracized, treated as pariahs, subject to direct and covert harassment and threats, and their personal safety is put in jeopardy.

Much of these concerns were echoed in a Corrections Service Canada report on The Black Inmate Experience in Federal Penitentiaries, which confirmed rampant prejudice and bias on behalf of corrections staff. Most of treatment was manifested as indifference towards these inmates, including covert and subtle forms of discrimination and differential treatment.

The report confirms that the manner in which discrimination and prejudice is often manifested in Canada, both in corrections, and society as large, are in far more subtle forms. Indifference towards the plight of Blacks in Canada is probably the primary manner this is displayed by the legal community and the public at large.

So while “All Lives Do Matter,” the lives of visible minorities in Canada, and particular Black lives, should matter a bit more to everyone, because as of right now there are significant gaps in our justice system. Right here, in Canada.

The systemic problems in our justice system were addressed in part for First Nations through Section 718 of the Criminal Code,which lists the “Purposes and Principles of Sentencing,” which were first codified on September 3, 1996,

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Section 718.2(e) provides special consideration for other sanctions aside from imprisonment, with particular attention to Aboriginal offenders.

The 1999 case of R. v. Gladue contextualized this further. Even at that time, the Supreme Court of Canada decried our country’s incarceration policies,

52 Canada is a world leader in many fields, particularly in the areas of progressive social policy and human rights. Unfortunately, our country is also distinguished as being a world leader in putting people in prison. Although the United States has by far the highest rate of incarceration among industrialized democracies, at over 600 inmates per 100,000 population, Canada’s rate of approximately 130 inmates per 100,000 population places it second or third highest…

Moreover, the rate at which Canadian courts have been imprisoning offenders has risen sharply in recent years, although there has been a slight decline of late…

This record of incarceration rates obviously cannot instil a sense of pride.

[citations omitted, emphasis added]

The Court also connected the disproportionate nature of inmate incarceration as a sign of broader social issues,

64 These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree. The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process.

[emphasis added]

By extension, the growing and overrepresented numbers of Blacks in the Canaidan prison population and criminal justice system reveals the very sad and pressing social problems we face in Canada today.

The Court in Gladue developed a principle of restorative justice in Aboriginal sentencing, which better meets the “needs, experiences, and perspectives of aboriginal people or aboriginal communities” [para 73], by employing the remedial provisions under the Code. The use of “Gladue Reports” has become standardized across Canada, though Justice Pomerance in R. v. Corbiere highlighted how the lack of funding and support has impacted the administration of justice.

Despite these shortcomings, similar background reports and considerations in sentencing can help alleviate in part the social problem of Black overrepresentation in Canadian prisons.

A Halifax judge recently delayed sentencing of a 27-year-old Black male, convicted of second-degree murder, in order to conduct a “cultural assessment.” Judge Pamela Williams, the chief judge of the Nova Scotia provincial court, likened their use to Gladue reports in an interview with CBC,

It isn’t so much taking race into account per se, it’s taking into consideration how race has led to systematic discrimination,marginalization and impoverishment of this group of individuals.

The report was expected to be completed a few weeks ago, and the sentencing is to occur later this year.

The only other recorded instance of a cultural assessment in Nova Scotia is with the sentencing of a youth offender in R. v. “X”,

[198] “X” has put this evidence forward to be considered in the evaluative process I must undertake with respect to the Crown’s application. I have asked myself what the evidence of Robert Wright contributes to the process of determining whether the presumption of “X”’s diminished responsibility has been rebutted such that he is no longer entitled to its protection? I find it raises significant questions about the assessment of “X” as a criminally-entrenched, sophisticated youth. It provides a more textured, multi-dimensional framework for understanding “X”, his background and his behaviours. “X” has been both a perpetrator and a victim of violence in the context of his criminally-impacted community. Mr. Wright’s evidence gives me a lens through which to view “X” in determining this application. And it suggests that “X”‘s character and maturity are still in a formative stage. Mr. Wright encountered a significantly conflicted young person, still located in his loving, pro-social family, who is struggling with his identity in the context of a criminally-impacted community that has incubated mistrust, rivalries, and violence.

The “second-class status” of Blacks in Canadian prisons is best understood through the social and contextual history of these offenders, as was explained in The Globe,

“It goes back to economics and circumstances,” said Lanre Onigbinde-Dey, 35, of Toronto, who spent eight years in federal prison for manslaughter after killing a man in a knife fight when he was 24.

“Have you seen the movie Trading Places? If I were to switch places with someone of privilege, I highly doubt I would have ended up in prison.”

He said that as a young man, he did not know how to overcome the obstacles to succeeding in life. “It comes of not having the leadership you need at home – male role models. The ones we looked to weren’t that much older than us. It was like the blind leading the blind. I wasn’t born with a manual. I was in a group home when I was 12.”

He said that a big problem in federal prison is “there’s a disconnect between the guards and the [black] inmates.”

Addressing these factors in sentencing through Gladue-type cultural assessment reports will not prevent brutality against Black inmates, or resolve the social and economic circumstances which lead to overrepresentation of Blacks in Canadian prisons. It won’t prevent police brutality, racial profiling, or carding practices.

What it does is allows the justice system to tell everyone else in society that the broader societal changes necessary to divert these individuals into other opportunities in life, and clearly identifies that the responsibility for doing so lies well before Blacks appear before the justice system.

It reminds us all that if our own places were switched with that of the average Aboriginal or Black person in Canada, our circumstances would likely be very different than it is today.