Is Justice Still Blind in Canada?
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Since Smith is black, he also submitted an Impact of Race and Culture Assessment, or IRCA—a presentencing report in which “Black and racialized Canadians” can demonstrate how systemic racism led them to commit their crime.
The logic behind Smith’s IRCA was clear: as a black man, it was assumed that he had been subjected to a great deal of hate, and that that hate had limited his job opportunities, housing opportunities, opportunities to build a meaningful and law-abiding life.
Dunia Nur, the activist who wrote Smith’s IRCA, told me the report was meant to help the judge appreciate the convict’s “background” and “history.”
I obtained Smith’s IRCA from Smith himself. Oddly, the four-page report cites no concrete instances of racism—no violence, no untoward remarks, no employers or schools that turned Smith down because of his skin color. Not even any microaggressions.
It also fails to mention that, in a separate incident in January 2018, Smith was arrested and charged with theft, robbery, and kidnapping.
What it does say is that Smith had a rough childhood and adolescence—the refugee camp in Ghana, his father’s absence, immigrating to Canada, his early run-ins with the law. It further notes that “Edward identifies as an African Canadian” who is of “Liberian heritage,” and that he has “a feeling of disconnection with his culture.”
The judge apparently sympathized with Smith. In February 2020, after six months in prison, he was allowed to go free with court-appointed supervision. If he’d been white, he would have been looking at eight years behind bars.
“I didn’t face racism,” Smith admitted to me in a recent phone call. He’s now a sales representative at a debt-collection company. Referring to the IRCA, Smith said, “It was my only way out of this situation. I took full advantage.”
Canada’s first official IRCA was submitted in the now-famous case of R v “X” in 2014—a case in which a 16-year-old black boy in Nova Scotia was charged with attempted murder after shooting his 15-year-old cousin in the abdomen with a rifle. This was not long after Black Lives Matter was formed, in 2013, to protest the shooting death of Trayvon Martin in Florida.
At the time, it was mostly confined to progressive circles in Nova Scotia, which has a higher concentration of African Canadians than any other province. Now, it’s taken for granted among Canadian criminal defense attorneys, prosecutors, judges, and law professors that the assessments are a necessary tool for curbing the “overrepresentation” of black and indigenous prisoners...
In the United States, the new thinking was reflected in the push for “decarceration” and the rise of progressive district attorneys—Larry Krasner in Philadelphia, Chesa Boudin in San Francisco, George Gascón in Los Angeles, Alvin Bragg in Manhattan, Kim Foxx in Chicago, and others. Central to the progressive prosecutor movement, Fryer said, was a rejection of “the gladiator, adversarial model.” Instead, he said, “the prosecutor’s role should be to seek justice in society.”
On top of that, a handful of states sought to impose justice from the top down: Virginia and Washington barred police from using choke holds and no-knock warrants. Minnesota adopted a law meant to make police more accountable. California, the country’s progressive laboratory, enacted the Racial Justice Act, which enables anyone convicted of a crime to challenge that conviction on the grounds of racial bias.
But Canada has gone further, insisting that judges explicitly consider race when meting out justice...
Race-based sentencing in Canada did not emerge in a vacuum.
It started in 1996, when Canadian lawmakers, upset that so many indigenous people were in prison, amended the Criminal Code, hoping to prod judges into considering indigenous people’s history of colonization—and dispensing less punitive sentences. In 1993, aboriginal peoples accounted for 17 percent of prisoners even though they were less than 4 percent of the total population.
In 1999, in R v Gladue—the first case to make its way to the Supreme Court following the amendments to the Criminal Code—what started as a suggestion became the law of the land. The Criminal Code, the Court ruled, “mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.”
In the wake of that case, courts started to require so-called Gladue reports when sentencing indigenous defendants. Gradually, the idea of building on Gladue reports to acknowledge African Canadians’ history started to gain traction...
Since Anderson, federal authorities have tried to nudge the rest of Canada to follow Nova Scotia’s lead. In April 2021, the Department of Justice announced $6.6 million to subsidize IRCAs. Since then, the sense of urgency has grown, with everyone from Prime Minister Justin Trudeau to Correctional Investigator Ivan Zinger saying more must be done to combat the “overrepresentation” of minority inmates.
This urgency is fueled, in part, by an awareness that over the course of the first two decades of this century—from the first Gladue reports in 1999 to 2020—the percentage of indigenous prisoners has jumped, from 17 percent to more than 30 percent...
It seemed not to matter to the judge that St.-Hilaire, 39, didn’t provide any details about the racism he had suffered: names, dates, comments that were made, pain that was inflicted. Nor did he say how it had affected him over the years.
St.-Hilaire could have wound up spending two years behind bars. Instead, he was sentenced to 100 hours of community service and left the courtroom, in November 2018, a free man.
St.-Hilaire hadn’t even filed an IRCA. All that was required to get a lighter sentence was to bring the defendant’s race to the judge’s attention—to obtain “judicial notice,” Danardo Jones, the University of Windsor law professor, told me. “Failure to consider race and anti-Blackness,” Jones said in an email, could lead to a sentence being overturned on appeal.
The Ottawa police chief, Charles Bordeleau, was furious about the sentence and issued a terse statement voicing frustration—something he almost never did. “It’s unfortunate that these comments were made putting into question the professionalism of our members during this difficult investigation,” he said...
“The judge basically calls the system out for being systemically racist even though the system bends over backwards to be reverse racist,” a prominent defense attorney in Toronto told me.
The attorney, who asked me not to publish his name out of fear of backlash, found it galling that the judge had portrayed St.-Hilaire’s actions during the course of those nine days between the hit and run and his arrest as a “momentary lapse of judgment.”
“The idea that somehow this cover-up had anything to do with racism or this never-demonstrated canard of systemic racism is patently false,” the attorney said. “To use language we’d normally associate with murder, this was not a momentary lapse in judgment but planned and deliberate. That’s what makes the judge’s ruling so egregious, and the idea that the defendant gets some kind of break because of something that happened years ago, something completely unprovable and possibly untrue that has nothing to do with Andy Nevin’s death—that’s absurd. Actually, it’s offensive.”
He added: “This is the scam of scams.” He said that lots of people knew it, and no one would say it openly. Including him. “Criticizing IRCAs would mean career suicide.”
I asked Chris Rudnicki, the criminal defense attorney, whether the subtext of the whole IRCA phenomenon was that black people from poor neighborhoods have less control over the decisions they make.
He emailed back: “In some cases, yes.”...
Smith was happy to have avoided a longer sentence but seemed almost embarrassed by it. “It didn’t have anything to do with race,” he told me for the third or fourth time. (But Temitope Oriola, a University of Alberta sociologist, said it wasn’t uncommon for black victims of racism to deny they had been victims of racism. “They refuse to acknowledge the existence of racism as a particular way of navigating the world and holding onto their sense of self,” he told me.)
Two months after being released from jail, Smith was arrested again, in April 2020, for possession of stolen goods. In September 2022, he was arrested once more and charged with two counts of assault and one count of damaging property, according to court records...
It seems odd that liberals, who spent decades trying to deracialize society, are now re-racializing it."
Liberals keep going on about "systemic racism", when the only systemic racism is what they promote
Clearly, as liberals believe, people don't respond to incentives, which is why criminals seeing that they won't be punished much don't offend more. It must be racism which explains why lighter sentencing for indigenous prisoners has increased their representation in prison
