Do pre-sentencing reports really help Black offenders in Canada’s justice system?

Impact of race and culture assessment reports (IRCAs) are meant to give judges context with the aim of ultimately creating a more equitable and fair criminal justice system. (Pexels Photo)

Canadian courts are increasingly applying Impact of Race and Culture Assessment reports (IRCAs), otherwise known as Enhanced Pre-Sentence Reports, when sentencing offenders. IRCA reports help sentencing judges better understand how systemic racism has influenced and even limited the offender’s life choices and trajectory.

Their use has been much debated among academics, lawyers, parole and probation officers, community workers, social workers, other clinicians and offenders. These reports are said to address anti-Black racism in the justice system by outlining for the courts the myriad ways in which systemic anti-Black racism has influenced the life of the offender.

They are meant to provide judges with context and insights with the aim of mitigating sentences and ultimately creating a more equitable and fair criminal justice system.

As an author of the IRCA report that helped set a precedent in Ontario for their use, I present a critical perspective on the issue with IRCAs, their potency and their potential.

Given the relative novelty of IRCAs in Ontario and the investments made in them, we need to ask whether they are in fact doing, systemically, what they were developed to do. Moreover, we should also question whether it is even possible for IRCAs to function in the transformative manner advocates have envisioned.

R. v. Morris

In 2017, through a series of interviews, document reviews and research, I conducted an assessment on Kevin Morris, then an inmate at Maplehurst Correctional Complex in Milton, Ont. awaiting his sentencing hearing. He was convicted for possession of a restricted handgun and carrying a concealed weapon.

At the prison, I sat with Morris as he explained his family history, upbringing, traumas and values. Among other things, he described his experiences as a young boy in school, in his neighbourhood, with the Children’s Aid Society and his identity-shaping interactions with teachers and the police.

This guided tour through his life revealed how anti-Black racism shaped his life, his outlook and his self-concept. Systemic and economic inequities characterized the poverty his parents faced. In addition, his father’s death left him fatherless at a very young age. As a single parent and sole provider, his mother was also often absent from the home, working long hours for minimum wages, which in turn impacted how Morris was parented.

Black families are more likely to be reported to and investigated by the Children’s Aid Society, and so it was no surprise that Morris experienced several child welfare interruptions throughout his childhood.

These were initiated by the school he attended where, Morris shared, he came to see himself as not smart, not worthy, not civilized, not wanted and not destined for success by any measure.

Morris’s social history was consistent with the experiences of many Black Canadians in the following ways:

▪ According to the 2021 Census, 12.4 per cent of Black Canadians were living in poor households, compared to just 8.1 per cent of the total population. In Toronto, Black people have long been over-represented in neighbourhoods most plagued by poverty and the associated violence, heightened surveillance and other forms of disadvantage.

▪ Black students are largely disengaged by the Canadian curriculum which does not reflect their identities or affirm their presence in an integrated, positive or substantial manner.

▪ Black students are significantly more likely to be expelled than their white counterparts or other racialized students.

Response to the decision

The case set a legal precedent when Superior Court Justice Shaun Nakatsuru made the groundbreaking decision to use the IRCA to significantly reduce Morris’s sentence. The Crown had sought a prison sentence of four years. However, after considering the IRCA, Justice Nakatsuru sentenced Morris to 15 months. This was then reduced to 12 months because the police breached his Charter rights. At the time of his sentencing, Morris had already served all but one day in pretrial detention and was released the next day.

The Crown appealed the decision, and in 2021, the Ontario Court of Appeal doubled Morris’ sentence. Although the sentence was eventually stayed, it sent a clear message: decisions like Justice Nakatsuru’s, that actually attempt to factor in the consequences of anti-Black racism, would not be tolerated.

As part of its decision, the Court of Appeal declared:

“Frank acknowledgement of the existence of, and harm caused by, systemic anti-Black racism, combined with a careful consideration of the kind of evidence adduced in this case, will go some distance toward disassociating the sentencing process from society’s complicity in anti-Black racism.”

But how does mere acknowledgement without corresponding action bring about change?

Systemic anti-Blackness

In the words of anti-Black racism scholar, Michael J. Dumas, “in all the theorizing on anti-Blackness, there is a concern with what it means to have one’s very existence as Black constructed as problem — for white people, for the public (good), for the nation-state.”

In the public imaginary, Blackness is synonymous with public threat, deviance and moral deficiency. Unfortunately, the courts are not yet at a place where they can conceive of a version of justice that abandons its focus on Black offender’s moral blameworthiness and the administration of punishment, and instead, centres restoration and the elimination of systemic factors that create criminality.

Morris’s case illustrates IRCAs are not the liberatory device they were intended to be because there is no institutional buy-in. The courts are happy to listen to Black offenders’ stories of hardship and appear benevolent, but far less eager to institute system-wide change or reframe practices to account for the state’s role in contributing to criminality.

Until the justice system reckons with its systemic racism, IRCAs will fail to shift the way the courts see Black offenders. Indeed, IRCAs will continue to be a voyeuristic exercise that reinforces popular deficit narratives about Black people and obscures the system’s failures.

Achieving racial equity in criminal justice requires the mitigation of sentencing as a reflective, conscientious undertaking rather than an act of pity or benevolence that wilfully disregards the culpability of the system itself. In fact, a true reckoning for the impact of Canada’s racism would make IRCA’s obsolete.

Camisha Sibblis, Assistant Professor of Sociology and Criminology/Director of the Black Studies Institute, University of Windsor

This article is republished from The Conversation under a Creative Commons license. Read the original article.