Two cases before the Ontario Court of Appeal (OCA) — where race was a factor in securing lesser prison terms — will have a significant impact on future sentencing decisions should the original rulings stand, says Toronto criminal lawyer Melody Izadi.
Izadi, an associate with Caramanna, Friedberg LLP, says the public may get upset over the outcomes, but there is sound legal and social reasoning behind the decisions.
But they won't apply in every case involving an African-Canadian, she says, noting one judge in an unrelated case has already considered the ruling and declined to apply it.
It's not a get-out-of-jail-free card across the board, Izadi tells AdvocateDaily.com.
“There has to be some contextual notice as to what the specific problems are,” she says. “And there is a duty on defence counsel to articulate why certain issues have affected this person. It’s not just a checkbox.”
The OCA decisions involved two African-Canadians, says Izadi, who was not involved in either matter and comments generally.
Justice Shaun Nakatsuru presided over both cases and drew his conclusions from a 1999 Supreme Court of Canada decision known as R. v. Gladue, she says.
That case held that a First Nations woman accused of manslaughter in the stabbing death of her partner should have her sentence reduced because the court did not adequately consider her background as an Indigenous person, Izadi explains. Her background of poverty, tragedy, and a medical condition were major reasons for her burst of anger the night of the stabbing, the court held, and should have been considered.
The ruling set a precedent and has since been applied in many cases involving First Nations people. However, this is the first time it’s been extended to African-Canadians, Izadi says.
“What’s also interesting is that this is the same judge in both cases, and he makes it clear that this is not race-based sentence discounting,” she says.
In what Izadi calls “eloquent and almost poetic” written rulings, Nakatsuru drew on Gladue and applied it to the backgrounds of the young black men in the separate cases before him involving similar facts of gun possession.
The first case, heard in April 2018, saw the justice open his written decision with a quote.
“About making change, let me quote Dr. Martin Luther King Jr.: ‘Take the first step in faith. You don't have to see the whole staircase, just take the first step,’” he wrote.
“Too many African-Canadians are serving time in jail. Something more needs to be done. In this case, I hope to take a small step in changing that.”
The accused was swept up in a police investigation into guns and gangs and was charged with possession of a loaded gun. While he had a lengthy criminal record and served considerable jail time, the judge found that African-Canadians are subject to “systemic racism.”
The Crown sought a sentence of 8.5 to 10 years, the decision states. The defence asked for four years.
“I find that for African-Canadians, the time has come where I as a sentencing judge must take judicial notice of such matters as the history of colonialism (in Canada and elsewhere), slavery, policies and practices of segregation, intergenerational trauma and racism, both overt and systemic, as they relate to African-Canadians and how that has translated into socio-economic ills and higher levels of incarceration,” the judge wrote.
“While this does not in and of itself justify a different sentence, it is an important first step in providing the necessary context in which to understand the case-specific information in sentencing.”
Nakatsuru said he sees the accused’s lengthy record in a different light.
“I can put your criminal record into some context,” the judge said in his decision, adding it gave him a chance to look at the social setting and personal circumstances that resulted in him being viewed as "a 'bad kid and now a bad man."
"I see the path you have taken. I see it shaped by forces of racism and intolerance. (I'm) not saying that you could not have made better choices when you were young. I am saying those choices were limited. By your family situation. And by the fact you were a young Black man.”
The judge held that a six-year jail term was “proportionate” when taking all the facts and context into consideration.
“This is not a race-based discount,” the decision reads. “Rather it is a fit sentence when all the circumstances are taken into account, including historical and systemic factors.”
The second decision, in July 2018, is similar. Izadi says it is remarkable in terms of the thought that went into it and its impact.
“He even closes with a quote from To Kill a Mockingbird,” she says.
Nakatsuru wrote: “The book is about racial injustice and a loss of innocence. In the story, this lawyer gives his young daughter some very important advice. He tells her that in order to really get to know someone you are judging, you must put yourselves in the shoes of that person. And stand a while in them.
"I believe that no better advice can be taken to heart by a sentencing judge.”
The Crown has appealed both decisions, and defence counsel across Ontario and Canada are anxious to see if the arguments hold, Izadi says.
While they are “raw and fresh,” and will have to be affirmed at appeal, she says the rulings represent a giant step forward.
“I think the judge was right in both cases. You cannot separate the individual from the systemic racism certain groups and minorities face," Izadi says. "We do it in a fair and just way in Gladue court, so why not with other racialized groups?”