Colour of Justice Part 3: The Defence

Nova Scotia Judge Anne Derrick recently had to make a potentially groundbreaking decision. A young man (called X in court documents) stood convicted of the attempted murder of another teenager (called Y). Should the fact that X is African Nova Scotian be a mitigating factor when she decided to sentence X as an adult, or as a youth?

Part 3: The Defence

Christa Thompson was called to the bar in 2009 and found work as a legal aid lawyer. She'd had plenty of experience in youth courts before she took on X's case.

Thompson told Judge Anne Derrick that X should be sentenced as a youth, and she called an expert witness to testify that his African Nova Scotian identity should be a factor in that decision.

"A life sentence for a non-murder involving a youth in Canada? There's no precedent for it," she tells CBC News.

"There wasn't potential for me to get into a conversation with [Crown attorney Terry Nickerson] where we could meet in the middle, because the middle was still way higher than I was willing to concede."

• Colour of Justice Part 1: The Crime
• Colour of Justice Part 2: The Prosecution
• Colour of Justice Part 4: The Judgment

The Youth Criminal Justice Act says when a person aged 12 to 17 is convicted under the criminal code, the court presumes a "diminished moral blameworthiness" and by default they are sentenced as a youth. The Crown argued X should instead be sentenced as an adult. The difference would be a life sentence versus a few years in a young offenders facility.

The court ordered a series of psychological and psychiatric assessments of X called "Section 34" reports, but Thompson argued part of the puzzle remained missing.  

"I basically felt that there was not any consideration at all that this is a young person of African Nova Scotian heritage, short of maybe the first paragraph describing him as an African Nova Scotian," Thompson says.

"Personal circumstances of the offender are key. That's really what it’s all about."

Systemic background factors

When First Nations people are convicted of crimes, the court considers systemic background factors. Thompson researched it in cases of African Canadian criminals and found that principle had never been applied to a young offender's sentencing hearing.

"When you look at the relevance of the evidence on race and culture, my question is, how can it not be relevant? If you're going to sentence a young person — or anybody — how are you supposed to understand where that person is coming from, and their circumstances, if you're not given the information?" Thompson asks.

She hired social worker Robert Wright to testify as an expert witness at the sentencing hearing.

Wright says many factors come into sentencing. "If that person suffers from a mental health condition, for example, or if a person has come from a privileged location and their crime represents some kind of sense of privilege or entitlement, whether the person comes from an impoverished situation and the crime comes from that impoverished status," Wright tells CBC.

"In our society, racialized status is a condition, a factor, that can reasonably be understood to have influenced a person's behavior."

'More of a coping mask'

When Wright assessed X, he didn't find the sophisticated, remorseless criminal depicted in other reports.

"Quite the opposite. I found the person to be certainly impacted by having lived in a community that has been criminally affected, and so there are certain coping mechanisms and strategies that a person adopts to live in that circumstance, but I felt that was more of a coping mask than a status or disposition," he said.

Wright argues if you live in a community flooded with stolen goods, having stolen goods doesn't necessarily reflect a deep criminal nature. He told the court X's African Nova Scotian identity, and the high-crime community he came from, "normalized" crime.

But wouldn't making such a case further stigmatize African Nova Scotians and African Nova Scotian communities?

"That's the horrible two-edged sword, isn't it? If we say that aboriginal peoples come from impoverished circumstances, and therefore we need to understand their impoverished circumstances when they come before the court, we might say, 'Doesn't that stigmatize the community?'" he asks.

"On the one hand it does. But if we take a much larger view of it, we would have to conclude that as a society, we own a problem when people who live in aboriginal or African Nova Scotian communities are impoverished. That is not a problem with aboriginal peoples or African Nova Scotians; that is a societal problem that is best explained by systemic and long-term discrimination and segregation."

'Disproportionate criminality'

The federal Office of the Correctional Investigator says black offenders represent 9.5 per cent of the federal prison population, but 2.9 per cent of the Canadian population.

"Is that due to some disproportionate criminality among black folk, or has it to do with a systemic discrimination and criminal targeting of African Nova Scotian communities?" Wright asks.

He argues it's a discrimination that leads to poverty, substance abuse, lack of education, lack of employment opportunities and dysfunctional communities. In court, Wright testified that X's cocky attitude — which the Crown saw as a lack of remorse — was likely "influenced by race and race models for coping in a criminally-affected community."

He knows many people, including the Crown attorney, strongly reject his argument. He says they're taking too small a view of the problem. No one should "get off because they're black," he says.

"The people who say these things are not being informed by the larger picture," he says. "If you look at the historical discrimination and marginalization, and exclusion from education and exclusion from the economy, and you look at the presence of systemic racism within the justice system, then you have to say it’s not that this person got off because they were black, it's that the judge created a sentence with all of this other information in view."

• Next: Part 4 of 4: The Judgment