In R. v. Anderson, 2021 NSCA 62, August 17, 2021, the accused, a Canadian of African descent was convicted of a number of firearm offences relating to the possession of a loaded handgun. The sentencing judge imposed a conditional period of imprisonment. On appeal, the Crown did not seek an increase in sentence. Rather it sought “guidance for courts tasked with applying the principles of sentencing to offenders like Mr. Anderson who are of African descent”.
In affirming the sentence imposed, the Nova Scotia Court of Appeal indicated that “the existence of anti-Black racism can be admitted on the basis of judicial notice without the need for evidence. Judges are entitled to take notice of racism in Nova Scotia and have done so. There is no justification for requiring offenders to produce viva voce evidence of this pernicious historical reality. That said, including in an IRCA [Impact of Race and Culture Assessments] the history of slavery and systemic racism in Nova Scotia and its effects on African Nova Scotian communities is indispensable. It will contribute to deepening the awareness and understanding of judges, Crown prosecutors, defence counsel, probation officers, correctional officials, parole officers and others who are dealing with the offender” (at paragraph 111).
The Court of Appeal also indicated that “[t]he ‘method’ employed for sentencing African Nova Scotian offenders should carefully consider the systemic and background factors detailed in an IRCA. It may amount to an error of law for a sentencing judge to ignore or fail to inquire into these factors. A judge does not have to be satisfied a causal link has been established ‘between the systemic and background factors and commission of the offence…’ These principles parallel the requirements in law established by the Supreme Court of Canada in relation to Gladue factors in the sentencing of Indigenous offenders. As with Indigenous offenders, while an African Nova Scotian offender can decide not to request an IRCA, a sentencing judge cannot preclude comparable information being offered, or fail to consider an offender’s background and circumstances in relation to the systemic factors of racism and marginalization. To do so may amount to an error of law” (at paragraph 118).
In relation to conditional sentences, the Court of Appeal suggested that the question “of whether the range can include a sentence of two years less a day should be refracted through the prism of the factors addressed by the IRCA. It is not a matter of determining if deviating from the range for the offence is warranted. Determining the range itself must be informed by the factors addressed in the IRCA and the statutory prerequisites for a conditional sentence. As the ANSDPAD Coalition submitted, IRCAs should be employed to individualize sentences, taking account of factors that have previously been absent from the analysis. Sentence ranges will have to be re-evaluated as they have been developed without the benefit of a fully contextualized analysis” (at paragraph 132).
Risk of Re-offence:
In relation to this factor, the Court of Appeal held that in “the case of African Nova Scotian offenders, these factors should be evaluated in the context of the information contained in the IRCA. The IRCA may cast previous non-compliance with court orders and the offender having a criminal record in a different light, one that does not preclude the appropriateness of a non-custodial sentence. Systemic racism, over-policing, and constrained opportunities for African Nova Scotians mean the existence of a criminal record must be considered in a contextualized manner. A criminal record may be the result of limited choices, the ‘normalized lack of achievement’, the corrosive effects of racism and prejudice, and the absence of positive role modeling” (at paragraph 138).
The Court of Appeal indicated that [e]ven where the offence is very serious, consideration must be given to the impact of systemic racism and its effects on the offender. The objective gravity of a crime is not the sole driver of the sentencing determination which must reflect a careful weighing of all sentencing objectives…The moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism, as was done in this case. The African Nova Scotian offender’s background and social context may have a mitigating effect on moral blameworthiness. In Ipeelee, the Supreme Court of Canada recognized this principle in relation to Indigenous offenders. It should be applied in sentencing African Nova Scotians. Sentencing judges should take into account the impact that social and economic deprivation, historical disadvantage, diminished and non-existent opportunities, and restricted options may have had on the offender’s moral responsibility. The judge here mined the rich vein of the IRCA evidence and closely and comprehensively examined it to better understand how to view Mr. Anderson’s possession of the gun” (at paragraphs 145 and 146).