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A shift in the landscape: Nova Scotia Court of Appeal rules that history of racism and marginalization must be considered in all criminal cases

Robert Wright at this morning’s press conference. YouTube.

KJIPUKTUK (Halifax) – The historic struggle against anti-Black racism by Black Nova Scotian activists is a long one, which makes  it all the more important to recognize its victories. 

A recent decision by Nova Scotia’s highest court about the significance of Impact of Race and Cultural Assessments (IRCAs) during sentencing is one such victory. 

That decision means that from now on any time an African Nova Scotian person is sentenced the judge will have to take into account the extent to which systemic racism and marginalization, both immediate and historic, have shaped the person in front of the judge and how it will affect their carceral experience.

“We’ve been fighting and advocating for so long that we rarely take time to celebrate wins, and I can say unequivocally that this is a win for African Nova Scotians,” said Brendan Rolle, a managing lawyer with Nova Scotia Legal Aid. 

Rolle was one of the lawyers representing the African Nova Scotian Decade for People of African Descent (ANSDPAD) coalition, an intervenor in the R v Anderson case that led to the Court of Appeal decision. He spoke at a press conference organized by the ANSDPAD coalition, live broadcast this morning on the Black Cultural Centre Youtube channel.

A shift in the landscape

“The Anderson decision is a historic decision that signals a shift in the landscape when we talk about sentencing African Nova Scotians. This decision will directly impact every African Nova Scotian being sentenced from this point forward. African Nova Scotians are distinct people with a unique history, and this decision acknowledges that historical reality,” Rolle said.

The case that triggered the change was about a young man, Rakeem Anderson, who earlier was given what was in essence a community-based sentence for possession of a restricted firearm.That relatively lenient sentence was in large part because of the information that the judge received through the Impact of Race and Cultural Assessment. When the Crown appealed, they invited guidance from our highest court about how to treat factors of race and culture in a sentencing proceeding. 

“When they made that decision to appeal, this case became about something larger than Rakeem Anderson, it became about how we sentence African Nova Scotians generally, and how we’re going to begin to tackle the issue of representation of African Nova Scotians in the justice system,” Rolle said.

As Rolle explained it, the Court of Appeal affirmed that IRCAs are the best way to get information of race and culture before a sentencing judge, and that IRCAs therefore should be available anytime an African Nova Scotian is being sentenced. Importantly, the court also said that judges must be able to show how they factored in the evidence of race and culture. It’s not good enough to simply acknowledge this evidence, a judge has to show how they’ve applied the IRCA to their sentencing decision.

Not just in Nova Scotia

It may be a victory for African Nova Scotians, but it is a victory that will benefit Black Canadians anywhere. The federal government has recognized the value of IRCAs and has announced that it is allocating funding to propagate its use Canada-wide. ANSDPAD will receive a share of that money to support the recruitment and training of IRCA assessors.  

All this is a source of satisfaction for Robrt Wright, the social worker and sociologist  who pioneered IRCAs here in Nova Scotia.  

“We are fortunate in this province to have African Nova Scotian lawyers and academics and clinicians who together have been able to craft this tool not only for people of African descent here in Nova Scotia, but for for people across our country,” Wright said,

“As a pioneer of IRCAs, I can only say how humbled I am by how this tool has been taken up by the courts, and how useful they have become in assisting the courts to address and begin to rectify the well documented systemic anti-Black racism that permeates our criminal justice system,” said Wright.

It may be time to celebrate, but much work remains.

“The work remains to address systemic racism during an individual’s first contact with police, in terms of what the charges are, the kinds of evidence that are held at trial, even in decisions as to whether or not to proceed with charges,” Wright said.  

See also: Robert Wright: In the Black community carding resonates with a history that is traumatic

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