Colour of Justice Part 4: The Judgment

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 4: The Judgment

Judge Anne Derrick listened carefully to all of the evidence and retired to make her decision. "The fundamental issue to be determined is what sentence will hold X accountable for attempting to kill Y," she wrote.

X would be sentenced as an adult if the Crown rebutted the "presumption of diminished moral blameworthiness" and showed that a youth sentence would be insufficient to hold X accountable for the crime.

• Colour of Justice Part 1: The Crime
• Colour of Justice Part 2: The Prosecution
• Colour of Justice Part 3: The Defence

The goal of sentencing is to hold X accountable, impose just sanctions with meaningful consequences and promote X’s rehabilitation, and to protect the public.

Derrick outlined what factors the earlier Youth Criminal Justice Act required her to consider in deciding to sentence X as an adult or as a youth. The factors are not mentioned in the current YCJA, but Derrick and the Crown believed they were still relevant.

They were:

• The seriousness and circumstances of the offence.
• The young person's age, maturity, character, background and previous record.
• Any other factors deemed to be relevant.

Derrick added that "any other factors" in this case included evidence about race and culture — Robert Wright's testimony.

'There could have been a ricochet'

"While, as I have said, the shooting of Y might not constitute a planned and deliberate attempt to kill him, the circumstances of the offence are extremely grave and X's moral culpability is high," Derrick wrote.

The crime carried even more seriousness because X casually fired the gun into a basketball court where children were playing.

"A child could have easily moved into the path of the bullet or there could have been a ricochet," she wrote.

"The circumstances of this serious offence tilt toward the imposition of an adult sentence."

But X hung out with other kids, lived at home and attended school. This showed a teenager, not a person "on the brink of adulthood." The pimping and drug allegations were "deeply troubling," but not proven in court and so rejected by the judge.

Derrick noted that someone stabbed X in August 2011. He didn't seek official justice, but began carrying a gun. In fact, according to his Section 34 reports, he owned two — a .32 calibre and a 9 mm Beretta.

"If this is true it indicates that a 14-year-old living in … was able to acquire two handguns quite readily. That says something about the community where he was growing up," the judge noted. The name of the community is redacted in the report.

'Going to jail in large numbers'

Derrick summed X up as an immature 16-year-old hanging out with a bad crowd and taking advantage of his parents' inability to effectively supervise him. She explored his court apology, observing that the first "sorry" was for X himself before getting to Y. The judge suspected X "harbours a belief that he had some justification for what he did."

"A young person's background and prior record are important factors to be considered in assessing a Crown application for an adult sentence. A significant feature of X's background is the fact that he is an African-Nova Scotian youth," she said, turning to Wright's report.

Wright had told the court that few families in X's African Nova Scotian community escaped tragedy. "Almost everyone has a son, a nephew, a cousin who has either been shot or has shot someone," Wright testified.

X's father served time for a domestic assault when X was eight. One of his brothers did time. Two years before Y was shot, someone shot up X's house when he was home. No one was charged.

In a generation and a half, X's community turned from a "proud, relatively isolated, racially uniform community" to one where "the sons of deacons are going to jail in large numbers."

Wright explained this drastic collapse as a socio-cultural phenomenon that is like a "future shock" from the fallout of a racialized community. Guns were plentiful and used to settle personal conflicts, not just crimes. Swagger and boasting of crime can be seen as "coping methods" for young people in a criminally affected community, not signs a youth is a sophisticated criminal.

"I am not aware of a case dealing with the relevance of race and culture in the context of an African-Canadian youth who is the subject of an application for an adult sentence," the judge said as she approached her decision.

No appeal

But systemic and background factors have "currency" in cases of African-Canadian adult offenders, and therefore must apply in X's case too, she decided. 

Wright's assessment "raises serious questions about the assessment of X as a criminally-entrenched, sophisticated youth. It provides a more textured, multi-dimensional framework for understanding X."

The evidence gave her "a lens through with to view X" in sentencing him. X was "readily distinguishable" from Mykel Smith, a criminal mercenary hired to shot a man he'd never met.

Derrick ruled the Crown had failed to rebut the presumption of diminished responsibility. X would be sentenced as a youth.

• Read the full ruling

"I find that when X shot Y he was an immature, dependent 16-year-old caught up in the dysfunctional dynamics of his community, dynamics that are relevant to my understanding of his context, background, and choices," she wrote.

"[An] adult sentence will likely derail X's chances to be rehabilitated, undermining the protection of the public objectives of the YCJA."

Derrick sentenced X to three years, with no credit for the time he'd served during his trial. In doing so, she set a precedent that being African Nova Scotian should be an important factor in sentencing young offenders. 

The Crown will not appeal the sentence.