How systemic racism is factoring into sentences for Black Albertans

As a kid growing up in Edmonton, Edward Smith had a choice — steal food, or go hungry.

"I'd get things like milk, chicken, just like real food," Smith, now 20, recalled in an interview with CBC News.

"I wasn't stealing candy and things like that and trying to be a negative person. I was just trying to make sure that I had something to eat for the day."

What he did to get food is one of many hardships outlined in an enhanced pre-sentence report about Smith, an upbeat e-commerce entrepreneur who once faced the prospect of a decade in prison.

On Jan. 2, 2019, Smith was with a group of people who broke into an occupied Airbnb suite and stole cash, passports and wallets. One of the robbers was armed with a shotgun. Smith was arrested nearby and charged with armed robbery. He said his friend told him he was robbed and needed help getting the money back.

Under a joint submission from the Crown and defence, he pleaded guilty to the lesser offence of theft under $5,000. Smith was convicted and sentenced to six months in jail. After time served was taken into account, he was released under community supervision.

"I always knew deep down that's not the real me — I know I'm a good person, I know that I want to do good things in my life," Smith said.

"Without that report, I wouldn't have been able to get out of the situation I was in, to be able to move on on my life and focus on my career and focus on trying to better myself as a person."

'Greater context' an aid to judges

Pioneered in Halifax and also used in Toronto, enhanced pre-sentence reports — also known as Impact of Race and Cultural Assessments — are helping judges determine appropriate sentences for Black offenders in the context of relevant historical, social and cultural factors.

"It's important to know what brought offenders to court in order to understand what may help keep them from coming back," said Kevin Mark, a Crown prosecutor in Edmonton.

"With greater context comes a more appropriate resolution," he said. "So reports and assessments like these are critical to my understanding of the offender as a whole."

The reports for Black offenders take their cue from R. vs. Gladue, a landmark 1999 Supreme Court of Canada ruling that said judges must consider an Indigenous offender's background and systemic factors in making sentencing decisions.

The ruling interprets 718.2 of the Criminal Code that directs judges to consider all reasonable sanctions other than imprisonment to address the over-incarceration of Indigenous people.

In the spirit of Gladue, the Edmonton-based African Canadian Civic Engagement Council (ACCEC) uses culturally literate social workers to write enhanced pre-sentence reports for Black offenders.

The council notes that the number of Black inmates in federal prisons has increased by 78 per cent in the last decade. Black inmates now make up nine per cent of the prison population while Black people account for three per cent of Canada's population.

'He deserved a second chance'

Mark was the prosecutor when Smith was in court.

He said he allowed Smith to plead to a reduced sentence in part because he was remorseful and honest. He had confessed to police that he had been there to steal, but said he had no knowledge of the gun.

The enhanced pre-sentence report, however, was also a significant factor in Smith's sentencing.

Written by ACCEC president Dunia Nur, it tracked Smith's life from a West African refugee camp to a north Edmonton neighbourhood where his mom struggled to make ends meet. Bullied, stigmatized and underestimated by teachers, the young man got behind in school and fell in with a bad crowd.

"I believed that his confession, when combined with the context contained in the report, [showed] that he deserved a second chance," Mark wrote in an email to CBC.

"The report and his confession video gave me insight into who Mr. Smith was a person, and explained who he was beyond what he had done."

50 reports to date in Alberta

The enhanced pre-sentence report on Smith is one of about 50 that ACCEC has prepared for Black Albertans in the justice system. The reports have helped almost all the offenders gain supervised release, according to the council.

"ACCEC's pre-sentencing community report provides Canada with a framework for recognition and reconciliation to fight against anti-Black systemic racism," Nur said.

"The report helps judges to understand the systemic and adverse backgrounds that people of African descent in Canada have faced for decades."

The Edmonton project began three years ago when Nur joined forces with criminal defence lawyer Paul Moreau.

Like Indigenous offenders, said Moreau, Black offenders also experience systemic racism, a lack of educational opportunities, chronic poverty and persistent unemployment.

"So our point is, why shouldn't judges take that information into account as well?" he said.

The goal of their work is to make enhanced pre-sentence reports the norm for Black offenders.

"This is an important step in the evolution of sentencing," Moreau said. "If we're to have a just and fair justice system for all Canadians, then it really does have to be for all Canadians."

With help from Native Counselling Services of Alberta, Moreau trained Nur to write the reports. He is also providing ongoing mentorship and legal workshops for community members.

As word about the initiative spread, calls came in from jailed Albertans of African heritage who had grown up marginalized because of racial inequality, poverty and trauma.

Many had not graduated from high school. Others spent childhoods in refugee camps where they were separated from family and exposed to terrorist attacks, torture and hostage-takings.

People who work with ACCEC agree to be held accountable for their actions. Reports recommend a plan for release and rehabilitation that includes culturally appropriate programs.

Offenders take part in counselling and job training. They reconnect with family, culture and community to heal, build self-confidence, provide for themselves and break the cycle of criminal activity.

Bill C-22 gives judges 'flexibility'

In February, the Liberal minority government introduced Bill C-22, which would remove mandatory minimum sentences for all drug offences and some firearm offences and restore conditional sentencing orders.

Justice minister David Lametti said the policies "have not made communities safer, but have instead filled up prisons with lower-risk and first time offenders — disproportionately from Black and Indigenous communities."

"Bill C-22 gives judges flexibility to impose sentences that truly take into account all of the circumstances of the offence and the offender, including experiences with systemic racism and discrimination," Lametti wrote in an email to CBC. 

"For judges to exercise their role in an appropriate and evidence-based way, they need information about the lived experiences of the offenders they sentence."  

The government has committed $6.6 million over five years for organizations writing enhanced pre-sentence reports, with more funding to follow in future years.

"This will help scale up the work that is already ongoing, and make this a more commonplace practice in more communities across the country," Lametti said.

In Toronto, a group of lawyers launched the Sentencing and Parole Project last year to prepare enhanced pre-sentence reports for Black people. Its website lists 15 cases in Ontario and Nova Scotia where enhanced pre-sentence reports have been used.

But having judges take into account a Black offender's experience of systemic racism can prompt controversy. In Ontario, the Court of Appeal is currently considering how much weight should be given to racial inequality in the sentencing of a Black offender.

On Feb. 11, the Crown appealed a 15-month sentence handed down in July 2018 to first-time offender Kevin Morris for carrying a concealed, loaded revolver in a Scarborough parking lot.

In his sentencing decision, Superior Court Justice Shaun Nakatsuru had written that he could understand why Morris had a gun, given the life-long systemic anti-Black racism he had faced.

"The young man who makes the choice to pick up a loaded illegal handgun will not likely be a product of a private school upbringing who has the security of falling back upon upper middle class family resources," Nakatsuru wrote.

"Rather, he is likely to be a product of oppression, despair, and disadvantage. Likely he is someone who cannot turn his life around on a dime even if he wanted to. In short, he is you, Mr. Morris.

"Social structures and societal attitudes that were born of colonialism, slavery, and racism have a very long reach. We must not forget this. Our memory of past injustices must be long enough to do justice in an individual case."

Alberta government will study

Alberta's government has expressed interest in examining the value of cultural assessments in sentencing Black offenders.

In a statement, a spokesperson for Kaycee Madu, Alberta's minister of justice and solicitor general, said the ministry is interested in studying the reports "to determine their effectiveness in reducing recidivism among young offenders and ensuring justice is done on behalf of all Albertans."

Smith is now learning about his Liberian roots after reconnecting with his grandparents as he builds an e-commerce business that helps companies market their products and services online.

In future, he hopes to work in his community, helping people improve their mental wellness and financial literacy.

"I want my life to be a painting," he said, "so people can look at it and be like, 'OK, since this guy did it — I can go do it, too.'"

For more stories about the experiences of Black Canadians — from anti-Black racism to success stories within the Black community — check out Being Black in Canada, a CBC project Black Canadians can be proud of. You can read more stories here.