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Edward Smith outside his home. (Jason Franson for The Free Press)

Is Justice Still Blind in Canada?

Equality under the law is the cornerstone of liberal democracy. But judges across the country are now factoring race into sentencing.

Edward Smith didn’t think the color of his skin had anything to do with it. 

He was 23, and he’d come to Canada in 2005 from West Africa. Now, he lived with his mother and sister in Edmonton, the capital of the western province of Alberta.

Racism—overt or systemic—didn’t make him take part in an armed robbery of an Airbnb in July 2019, he said. He’d decided on his own to help his cousin, who had told Smith that the people staying at the Airbnb had robbed him and that he was trying to get his money back. Smith agreed to help, but he didn’t want any guns involved. So they compromised: they’d bring a gun, but it would be unloaded.

Things didn’t go as planned, and Smith was arrested. At his trial, Smith pleaded guilty to the two charges—theft and robbery with a firearm—filed against him. 

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.

Danardo Jones, a University of Windsor law professor who has written extensively on criminal justice reform, said that when it comes to IRCAs, there is “institutional buy-in.” For now, there are no statistics on the number of IRCAs being filed nationwide or on a province by province basis. Criminal defense attorneys in Ontario estimated that IRCAs run up to $4,500 and that there’s a nine-month waiting list to obtain one.

Canada is at the forefront of a broader movement that seeks to reimagine police, prisons, and the nature of justice—a movement that gained much greater momentum and cohesiveness in the wake of George Floyd’s May 2020 killing in Minneapolis.

“The protests of 2020 marked the new way in which many people thought about criminal justice,” Daniel Fryer, a University of Michigan criminal justice law professor, said. “The thing about the protests of 2020 is that they reached a global audience. Although the problem was at least ostensibly domestic, everyone in the world was watching.”

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.

As far as Nadia Robinson was concerned, there is nothing fair or just about that. The father of her two boys was killed eight years ago by a driver in Ottawa, and he had gotten off with a lighter sentence because he was black.

“I’m not trying to be a ‘Karen’ in any way, shape, or form,” Robinson, who is white, told me. “I believe that when you do something wrong, you stand up and say you did something wrong.”

I suggested IRCAs were an effort to undo decades, even centuries, of racism that had been baked into the criminal justice system. “You can’t rewrite the past,” Robinson said. Then, she added: “We’re all equal.”

Nadia Robinson. (Dan Aponte for The Free Press)

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.

Fast-forward to the mid-2010s and the rise of the IRCA. The whole point of the IRCA, Robert Wright, a social worker and early pioneer of IRCAs, told me, was to level the proverbial playing field.

“Some people think we’re trying to get a race-based discount for people,” said Wright, who wrote the first official IRCA, in R v. “X.” IRCAs, he said, are “real tools” that enable judges to “be more thoughtful” and “sentence black people more appropriately.”

Ryan Handlarski, a criminal defense attorney in Toronto, added: “How can we pass judgment on a person without at least trying to understand what led them to that place?”

Judge Anne Derrick, who presided over R v “X, was apparently persuaded by this logic. 

“I find that when ‘X’ shot ‘Y’ he was an immature, dependent 16 year old caught up in the dysfunctional dynamics of his community,” Derrick wrote. She sentenced “X” as a minor, giving him two years in prison and another year of supervision at home. Had he been sentenced as an adult—as the prosecutor requested—he would have received a life sentence.

While R v “X” influenced thinking among judges, attorneys, and prosecutors, its impact was limited because it took place on the local, trial court level.

But in 2017, Derrick was promoted to Nova Scotia’s Court of Appeal—where her future rulings would have an automatically binding effect on lower courts across the province.

And then, in 2021, she got her chance—with the case of R v Anderson—to make race-based sentencing the standard across the province.

During a traffic stop in Halifax three years earlier, Rakeem Rayshon Anderson was found carrying a .22-caliber handgun. He was charged and convicted of five offenses related to possession and transportation of a loaded weapon. 

Prosecutors asked for Anderson to be given a prison sentence of two to three years. Being African Canadian, Anderson filed an IRCA—co-authored by Robert Wright, who had written the IRCA for R v “X. The trial judge who heard Anderson’s case gave him a lesser sentence—house arrest and probation—based, in no small part, on the IRCA. (Judge Pamela Williams said as much, adding that the dearth of “Afrocentric services” contributed to her ruling.)

Prosecutors appealed to the Court of Appeal—where now-Justice Anne Derrick was presiding. 

Derrick was unsympathetic to prosecutors.

“Even where the offense is very serious, consideration must be given to the impact of systemic racism and its effects on the offender,” Derrick wrote in August 2021, upholding the lower court’s decision.

Brandon Rolle, senior legal counsel at African Nova Scotian Justice Institute and one of Anderson’s attorneys, called the decision “historic,” adding that “this decision will directly impact every African Nova Scotian being sentenced from this point forward.”

I asked Mark Scott, the lead prosecutor in Anderson, what he made of Derrick’s ruling. “People’s culture and background are something that is essential to recognize when you’re looking at a just result,” Scott told me, sounding like a defense attorney. “If you’re going to say that justice has to be colorblind, I think there are people who would disagree with that.” 

Chris Rudnicki, a criminal defense attorney in Toronto, told me: “If Justice Derrick’s decision in ‘X’ can be seen as opening the door to systemic considerations in Canadian sentencing, then her majority opinion in Anderson—now sitting as a judge at the Nova Scotia Court of Appeal—can be seen as leading us all through it.”

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.

To Nadia Robinson, the idea that the man who had killed her partner should be given a lesser sentence because of his race felt “surreal,” she said, as if the people in charge were speaking one language, and she were speaking another.

Robinson’s partner, Andy Nevin, had been riding his bike on the morning of June 28, 2015, when he was killed in a hit and run. 

In court, the driver, Deinsburg St.-Hilaire, testified that he’d been out all night at a wedding. It was almost six a.m., and he was speeding home—going almost 20 miles over the limit—when he nodded off. He came to when he heard a thud. He didn’t see anything in his rearview mirror. He said he thought he’d hit a mailbox.

Except that when he got home, St.-Hilaire covered his Ford F-250 pickup truck in a tarp, and, within a few days, he had the hood and side panel changed. 

It seemed as though he knew what had happened.

This was what Nadia Robinson couldn’t accept. “If I knew it was my son who did something like that, I’d be like, ‘You need to come forward, you need to tell this family—you don’t hide,’ ” she told me. 

After repairing his truck, St.-Hilaire decamped to an airport hotel, hoping to evade the cops. Nine days after the accident, he was arrested.

Later, when he tried to explain why he hadn’t turned himself in, St.-Hilaire noted that he had emigrated at age 7 from Dominica, in the Caribbean. “Being the only black child in his class, and not speaking English proficiently, resulted in Mr. St Hilaire being bullied at school,” according to a court document

At the trial, Judge Catherine Aitken said she believed the defendant “wanted to do the right thing but did not have the confidence to do so out of fear.” She added: “I also accept that this fear was likely heightened as a result of Mr. St. Hilaire’s experience with racism as a black person growing up in this community.”

Ultimately, Aitken found St.-Hilaire guilty of obstructing the police investigation into the collision but, parroting the defendant, added that his “experiences earlier in life when he was subjected to racism and bullying in the school context” as well as “experiences more recently when he did not feel fairly treated by police officers during traffic stops” were mitigating factors.

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.

Nadia Robinson told me the court’s judgment made her feel like Andy Nevin’s life didn’t matter. Did anyone care that on the morning of his death, he was biking to the new apartment they planned to live in? They were moving out of the dump they’d been in, starting a new chapter. The boys were so excited, she said. 

“Are you kidding me?” Robinson said. She was crying. She felt as if she were living a parallel life, a life that wasn’t supposed to happen. Her sons, now 26 and 24, she said, have had a lot of trouble since their father’s death: alcohol, drugs, a seemingly bottomless grief. “My kids are devastated,” she said.

Among prosecutors and even some criminal defense attorneys, it felt as though the country were crossing the Rubicon. 

“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.” He added, “To the extent that systemic discrimination has a material impact on people’s lives—restricting access to housing, education, and employment, for example—it can render them more susceptible to criminal influences. You are more likely to steal a loaf of bread if you’re poor, for example. Or more likely to join a street gang if your school has expelled you. Etc. So a sentencing court will treat a person who has experienced the material impact of systemic discrimination differently than a person who has not suffered that impact.” 

(Jason Franson for The Free Press)

Edward Smith, who robbed the Airbnb, insisted the problem was never systemic discrimination. It was him. It was his family.

In high school, he’d started stealing candy and clothing from local stores. Partly, he said, this was because his mother, who packed chickens for minimum wage, couldn’t afford to buy him stuff. But mostly, he said, it was because he could. He was a latchkey kid surrounded by other latchkey kids. “It was just me and my friends,” Smith said. “If we were going to make bad decisions, we were going to do it together.”

It was in the summer of 2019 that his cousin asked him to help rob this Airbnb to get his money back. He didn’t ask questions.

So, the three of them—his cousin, some other guy, and Smith—showed up at the Airbnb, and the two other guys had guns, and they robbed the place and got out and drove away before Smith could catch up with them. He got arrested. It turned out his cousin had never been robbed. He just wanted to do some robbing. (He was later arrested, too.)

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.

All these charges were subsequently dropped, but that wasn’t the point, the criminal defense attorney in Toronto said. “The police don’t arrest innocent people,” the attorney said. Referring to Smith, the attorney added: “Is he a ticking time bomb and going to keep reoffending? One million percent.”

It seems odd that liberals, who spent decades trying to deracialize society, are now re-racializing it. 

Jonathan Simon, a University of California–Berkeley law professor, explained that, when it comes to criminal justice reform, it’s hard to sidestep race. 

“The criminal-legal system is the equivalent of a toxic-waste disaster with over decades of institutional focus on communities of color,” Simon said. The public, Smith added, tends to view “crime” and “blackness” as one and the same. “There’s overwhelming evidence from psychologists that blackness and crime are fused in a cognitive way,” he said.

It was necessary to acknowledge that “the criminal-legal system has been jacked up on racism,” so society—in Canada or the United States—can start down the long path of decarceration, Simon said. That was the point of IRCAs, its defenders explained.

John Medeiros, the staff sergeant at the Ottawa Police Department who had overseen the St.-Hilaire case, said he understood why black defendants were skeptical that the system would treat them fairly. There was a long history. There had been discrimination. There had been a great deal of institutionalized oppression. 

But he’d been dismayed by the judge’s ruling in the hit and run. According to Nevin’s postmortem examination, the 39-year-old cyclist had been struck from behind and flown into a ditch. He had a laceration on his head, and abrasions on his shoulders, waist, and legs; his spinal cord had been severed, and one of his lungs punctured. The only good news, perhaps, was that he had been killed instantly.

“I don’t think race ought to have been a factor here,” Medeiros told me. 

Referring to St.-Hilaire, Medeiros added, “He left a human being on the side of the road, like he drove over a skunk.”

Rupa Subramanya is a reporter for The Free Press. Her last article, Trudeau’s Battle Against a Free Internet, examined Canada’s effort to curb free expression online.

On Wednesday night, Rupa will be hosting a subscriber-only event about this piece. To join, become a member of The Free Press community today:

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