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By KIRK MAKIN
From Thursday's Globe and Mail
Sentences for black offenders can be reduced or tailored to reflect the systemic racism that has historically plagued their community, the Ontario Court of Appeal has ruled.
It said those most suited to this sort of special treatment will be offenders whose crimes involved minimal violence and whose troubled lives can reasonably be linked to inequality.
The ruling was hailed Wednesday as a breakthrough for a minority which, like aboriginals, has suffered historical inequalities and is over-represented in the justice system.
The 3-0 judgment came in a case involving Quinn Borde, a black gunman from Toronto's seedy Regent Park area. The 18-year-old admitted to firing a gun repeatedly into the air while being chased by a gang and pistol-whipping a rival later.
Mr. Justice Marc Rosenberg noted that Mr. Borde never knew his father and that his mother had serious mental problems. He was bounced between foster homes and often ran away. Mr. Borde abuses alcohol, has little education and faces limited job opportunities.
Mr. Borde's trial judge gave him a total of five years and two months in prison. He had already served 31 months in pretrial custody. On appeal, lawyer David Tanovitch, representing Mr. Borde, argued for a reduction on the basis of "systemic and background factors."
The court concluded in its 3-0 ruling that while Mr. Borde's behaviour was too serious to entitle him to lenient sentencing based on his background, other cases will likely arise that do.
Judge Rosenberg said that since research clearly shows the existence of systemic racism against blacks, "background and systemic factors facing African Canadians — where they are shown to have played a part in the offence — might be taken into account in imposing sentence."
"Systemic racism and the background factors faced by black youths in Toronto are important matters and in another case I believe that they could affect the sentence," he said, on behalf of Mr. Justice Dennis O'Connor and Madam Justice Karen Weiler.
However, the court noted that the need to consider systemic racism against blacks is less of an imperative than it is for natives. It said Parliament and the Supreme Court of Canada have made it explicitly clear that alternative sentences are to be routinely considered in the case of natives.
Mr. Tanovitch said the biggest impact of the ruling will probably be felt among blacks convicted of drug offences.
"This is because the systemic factors of over-representation, differential enforcement and discriminatory sentencing are particularly pronounced in drug cases," Mr. Tanovitch said in an interview.
"For too long the collateral effects of systemic discrimination have not been recognized by our courts in the sentencing of African Canadians," he said. "Recognition that these effects are relevant paves the way for a rethinking of the manner in which we sentence black offenders."
University of Toronto law professor Kent Roach said it is significant that the ruling quoted extensively from the results of a 1995 Ontario inquiry into systemic racism in the justice system.
Eight years after the inquiry report was quietly shelved by the province because its findings about systemic discrimination were too controversial, Prof. Roach said, it has gained a strong measure of credibility.
"This ruling should encourage counsel and trial judges to make more use of the report," Prof. Roach said. "At the same time, the report needs to be updated to see whether the issues are the same. Intuition suggests that things have probably gotten worse."
The appeal panel agreed to reduce Mr. Borde's sentence by a year, but said it was because the trial judge was so intent on deterring other criminals that he forgot to pay attention to Mr. Borde's youth.
"The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence," said Judge Rosenberg, an expert on sentencing issues.
He said that while the offences were serious and demand a penitenitary sentence, "these circumstances, however, had to be balanced against the appellant's age and his chaotic background as part of a dysfunctional family being raised in poverty by a mother who unfortunately had few parenting skills and suffered from a mental illness."
What next?
--------------------------------------------------------------------------------
Advertisement
--------------------------------------------------------------------------------
By KIRK MAKIN
From Thursday's Globe and Mail
Sentences for black offenders can be reduced or tailored to reflect the systemic racism that has historically plagued their community, the Ontario Court of Appeal has ruled.
It said those most suited to this sort of special treatment will be offenders whose crimes involved minimal violence and whose troubled lives can reasonably be linked to inequality.
The ruling was hailed Wednesday as a breakthrough for a minority which, like aboriginals, has suffered historical inequalities and is over-represented in the justice system.
The 3-0 judgment came in a case involving Quinn Borde, a black gunman from Toronto's seedy Regent Park area. The 18-year-old admitted to firing a gun repeatedly into the air while being chased by a gang and pistol-whipping a rival later.
Mr. Justice Marc Rosenberg noted that Mr. Borde never knew his father and that his mother had serious mental problems. He was bounced between foster homes and often ran away. Mr. Borde abuses alcohol, has little education and faces limited job opportunities.
Mr. Borde's trial judge gave him a total of five years and two months in prison. He had already served 31 months in pretrial custody. On appeal, lawyer David Tanovitch, representing Mr. Borde, argued for a reduction on the basis of "systemic and background factors."
The court concluded in its 3-0 ruling that while Mr. Borde's behaviour was too serious to entitle him to lenient sentencing based on his background, other cases will likely arise that do.
Judge Rosenberg said that since research clearly shows the existence of systemic racism against blacks, "background and systemic factors facing African Canadians — where they are shown to have played a part in the offence — might be taken into account in imposing sentence."
"Systemic racism and the background factors faced by black youths in Toronto are important matters and in another case I believe that they could affect the sentence," he said, on behalf of Mr. Justice Dennis O'Connor and Madam Justice Karen Weiler.
However, the court noted that the need to consider systemic racism against blacks is less of an imperative than it is for natives. It said Parliament and the Supreme Court of Canada have made it explicitly clear that alternative sentences are to be routinely considered in the case of natives.
Mr. Tanovitch said the biggest impact of the ruling will probably be felt among blacks convicted of drug offences.
"This is because the systemic factors of over-representation, differential enforcement and discriminatory sentencing are particularly pronounced in drug cases," Mr. Tanovitch said in an interview.
"For too long the collateral effects of systemic discrimination have not been recognized by our courts in the sentencing of African Canadians," he said. "Recognition that these effects are relevant paves the way for a rethinking of the manner in which we sentence black offenders."
University of Toronto law professor Kent Roach said it is significant that the ruling quoted extensively from the results of a 1995 Ontario inquiry into systemic racism in the justice system.
Eight years after the inquiry report was quietly shelved by the province because its findings about systemic discrimination were too controversial, Prof. Roach said, it has gained a strong measure of credibility.
"This ruling should encourage counsel and trial judges to make more use of the report," Prof. Roach said. "At the same time, the report needs to be updated to see whether the issues are the same. Intuition suggests that things have probably gotten worse."
The appeal panel agreed to reduce Mr. Borde's sentence by a year, but said it was because the trial judge was so intent on deterring other criminals that he forgot to pay attention to Mr. Borde's youth.
"The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence," said Judge Rosenberg, an expert on sentencing issues.
He said that while the offences were serious and demand a penitenitary sentence, "these circumstances, however, had to be balanced against the appellant's age and his chaotic background as part of a dysfunctional family being raised in poverty by a mother who unfortunately had few parenting skills and suffered from a mental illness."
