A case of “race-based sentencing” in Canada is prompting outrage as a man who impregnated his intellectually disabled daughter was given house arrest instead of jail time after the judge considered his “systemic and background experiences as an African Nova Scotian.”
The shocking decision, recently discussed by the National Post, reveals that the incestuous crime was first uncovered after a woman gave birth to a baby with “serious medical complications and significant developmental delays” in 2019.
Due to the severity of the child’s condition, a medical geneticist at the hospital alerted police. While the woman, who was 23 years old at the time, denied the baby was her father’s, she was later found to have been texting her father explicit sexual messages while visiting the baby at the neonatal intensive unit.
According to court records, the woman was said to have “low intellectual functioning” which meant she did not really appreciate the conduct was wrongful. Her father, who is 31 years her senior, is also said to be intellectually disabled. The child is currently in foster care.
After being questioned by police, the father admitted to first sleeping with his daughter when she was 19. He was charged with incest and, despite the severity of the crime, was given a shockingly lenient sentence of two years in house arrest.
Although the Crown argued that the father should serve six years in prison based on other precedents set by similar crimes, it lost on appeal. A three-judge Appeals Court panel determined the trial judge had assigned an appropriate sentence, with one of the judges, Anne S. Derrick, noting that the previous precedents cited by the Crown did not involve African Nova Scotians, and that “a more nuanced approach” was required in the case due to the perpetrator’s race.
The Appeals Court also deferred to the initial assertion of sentencing Judge Ann Marie Simmons, who argued that “the moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism, as was done in this case.” She added: “Sentencing judges should take into account the impact that social and economic deprivation, historical disadvantage, diminished and non-existent opportunities and restricted options may have had on the offender’s moral responsibility.”
Continuing, Judge Simmons explained that because the father was “an African Nova Scotian,” he had been affected by “historical deprivation, social and economic deprivation as well as diminished and virtually non-existent opportunities.”
Despite the Criminal Code historically prohibiting house arrest as a punishment for incest, Trudeau’s Liberal government passed Bill C-5 on March 31, 2022, in hopes of addressing disparities involving the amount of Black Canadians in prison. As a result, house arrest was renewed as a sentencing option for crimes of incest.
This is not the first time a Nova Scotia court provided a race-based sentence.
In 2019, Rakeem Rayshon Anderson was found guilty on five firearm-related charges after police caught him with a .22-caliber revolver in the waistband of his pants. In Canada, it is illegal to transport firearms unless it is unloaded, inoperable through a locking device, and in a locked opaque container.
One year later, Provincial Court Chief Judge Pamela Williams gave Anderson a conditional sentence of just under two years, with two years of probation. According to Canadian Lawyer Mag, Williams’ “sentencing decision was supported by the results of an Impact of Race and Culture Assessment (IRCA) report on Anderson.” Currently, the Government of Canada website defines IRCA reports as “pre-sentencing reports that help judges understand the effect of poverty, marginalization, racism, and social exclusion on the offender and their life experience.”
Race-based sentencing originated in 1999 and was initially reserved for Indigenous people. In 2019, the government expanded this practice to include Black offenders in Nova Scotia, and two years later, in 2021, Ontario’s legal system also adopted it.