Maria Dugas is an assistant professor of law at Dalhousie University’s Schulich School of Law. Lisa Kerr is an assistant professor of law at Queen’s University’s Faculty of Law.
In Bill C-5, the federal government has reintroduced legislation to eliminate 20 mandatory minimum sentences and allow judges more discretion to impose conditional sentences (that is, strict house arrest instead of jail). Justice Minister David Lametti has been clear about the bill’s purpose: to tackle the overrepresentation of Indigenous people and Black Canadians in our prisons. “These statistics, this record, is shameful,” he said.
It’s good legislation that will make the criminal justice system more fair. But it’s worth noting that, for a bill that is ostensibly about racial justice, every single provision in this bill is entirely race neutral. One small change would make the bill far more likely to achieve its stated aim: expanding the language in Section 718.2(e) of the Criminal Code so that sentencing judges always have the background information needed to impose appropriate sentences on Black defendants.
Currently, Section 718.2(e) tells judges to exercise restraint in the use of imprisonment for all offenders and to pay “particular attention to the circumstances of Aboriginal offenders.” With those eight words, passed in 1997, Parliament authorized the Supreme Court of Canada to develop what is known as the Gladue jurisprudence.
For decades now, Gladue reports have helped Canadian judges better understand Indigenous accused and their communities. A well-crafted and properly researched report can help put an individual’s actions into proper context, which often includes the devastating effects of colonial state programs, dislocation and economic marginalization. Gladue reports can also tell a judge if the defendant comes from a community with a long history of restorative justice laws and practices.
The Gladue approach is often misunderstood. It does not deploy different sentencing principles according to the race or background of defendants and it does not deliver lenient sentences to Indigenous people – that’s not how Gladue works, and it is not our proposal here. In all cases, Canadian sentencing law is committed to individualized treatment and to criminal sentences that reflect true moral blameworthiness. The main thing Gladue has done is improve the quality of information that judges have about the life circumstances of the Indigenous people they are sentencing. Before Gladue, Canadian judges – largely drawn from white, middle-class backgrounds – often had no clue about things such as the intergenerational effects of residential schools on the Indigenous people standing before them in court. This kind of specific and explicit language is needed for Black Canadians, too.
Recent appeal-court decisions in two different provinces highlight that need. In August, in R v. Anderson, Nova Scotia Court of Appeal Justice Anne Derrick said the experiences of Black defendants must be better reflected in sentencing process and outcomes – that a sentencing judge who fails to consider systemic and background information may be making a reviewable error. This means judges in the province must learn a history that includes slavery and segregation, along with present-day realities of racial profiling, residential instability, lack of educational and employment opportunities and a great deal of trauma and loss. Since these collective stories have to be tied to the particular defendant in order for them to affect the sentence, judges need the equivalent of a Gladue report in all cases.
The Ontario Court of Appeal’s October decision on R v. Morris also makes clear that anti-Black racism appears across key social institutions, including schools and the police, and that its “profound and insidious impact” is crucial to consider when sentencing “offenders of African descent.” The court showed a strong appetite for social-context evidence but stopped short of arguing that judges have an independent legal duty to seek it out in all cases involving Black defendants, as they do under Gladue, pointing to a lack of specific statutory direction from Parliament. Bill C-5 is the logical place to establish it.
Strikingly, the government has already done the hardest part of this reform. In August, Mr. Lametti announced the government would invest $6.64-million over five years, followed by $1.6-million every year, to improve access to enhanced sentencing reports, called Impact of Race and Culture Assessments (IRCAs), for Black defendants. The logical counterpart to funding IRCAs is to expand the language in Section 718.2(e).
Black people have faced multiple forms of oppression throughout their centuries in Canada. And yet the law of sentencing has scarcely said a word about how that history is part of the “circumstances of Black offenders.” Cases such as Anderson and Morris have finally, and unequivocally, affirmed the relevance of race and racism to sentencing. But this only happened because of a handful of devoted social workers, academics and defence lawyers in the Toronto and Halifax regions. Parliament must act to make judicial awareness of race and racism the required norm, not the exception.
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