Black history, both personal and communal, now a factor in Nova Scotia sentencing

HALIFAX — Jason Middleton says the inclusion of Black history in his sentencing — both personal tragedy and communal struggle — set a new path for his troubled life.

A cultural assessment completed in October 2016 led to a sentence of house arrest and probation rather than a lengthy jail term after he was convicted for a series of scuffles with police during arrests for probation violations and an assault at the lockup.

“I knew from that moment people weren’t just seeing through me, but rather they were trying to see me through. It humanized me,” Middleton said in a recent interview from his home in Yarmouth, N.S.

The 49-year-old African Nova Scotian — who also has Indigenous ancestry — grew up amid abuse and poverty and says he has frequently been sentenced to prison by the province’s predominantly white judiciary.

However, in the summer of 2016, a document prepared for provincial court known as an Impact of Race and Culture Assessment took a different approach — outlining how historic neglect of Black communities led to disproportionate levels of imprisonment and telling the accused’s story of his suffering as a child.

The assessments were pioneered by Halifax social worker Robert Wright in a landmark 2014 case. The provincial Justice Department says that since 2018, 147 such reports have been written. Middleton’s report was the first paid for by the court system.

Wright says he and other assessors normally spend hours talking with the accused and then set their stories into the wider context of the Black experience. The reports, running to 20 pages, sometimes describe a mix of multi-generational poverty and the lack of access to treatment for childhood traumas.

Figures from the Justice Department indicate about 11 per cent of provincially sentenced inmates last year were African Nova Scotian, almost five times higher than the Black proportion of the population.

Wright, 55, said in a recent interview there’s a shortage of assessors, and some accused choose to skip the reports because they take too long. However, he’s noting that Nova Scotia’s judges are coming up with “innovative sentences” that avoid jail time in an increasing number of cases, even some involving weapons and drug trafficking.

For example, an Appeal Court decision last year upheld the conditional sentence of Rakeem Anderson for possession of a loaded .22 calibre gun. It concluded that ignoring the cultural reports “may amount to an error of law” for a sentencing judge. 

Darren Tynes, a 50-year-old Halifax man facing a theft charge, said in a recent interview that he told Wright about experiences of racism that damaged his trust in white people. He said the resulting report improved the judge’s understanding of his story, and he’s now optimistic about getting a conditional sentence.

Tynes has vivid memories of the father of a white school friend chasing him out of his friend’s house and hurling racist insults at him. He also recounted a violent attack by a group of white men against him when he was just 10 years old, walking home in his downtown Halifax neighbourhood.

Poverty can set the stage for bad decisions, said Tynes. “I wanted nice things but never had nice things. There were times I didn’t go to school because my sneakers had holes in them and other kids would make fun of me,” he said.

Wright’s assessments sometimes extend back for generations, and the one in Middleton’s case noted how the historic Black communities in southwestern Nova Scotia faced segregation and subsistence economies, along with poor access to education.

Middleton was born to a 14-year-old single mother, and was raised under the strict discipline of his grandmother, who at times had to leave the home for mental health treatment, the report says. It also describes Middleton’s accounts of mistreatment in his home, and physical and sexual abuse at the Nova Scotia School for Boys in Shelburne, N.S., and also at the Nova Scotia Home for Colored Children in Halifax. 

Wright then makes links to the role race plays in recovering from childhood traumas.

“Persons of African descent … are less likely to seek help, are less likely to find appropriate help when they seek it, and are less likely to benefit from the help they seek and find,” he wrote in Middleton’s report, citing a provincial advisory committee’s findings in 2012 that confirmed the gaps in service to Black citizens.

How far other judiciaries in Canada will go in following the Nova Scotia system remains unclear.

The Ontario Court of Appeal noted in a decision last Oct. 8 that while the cultural reports can “sometimes be an important consideration on sentencing, the trial judge’s task is not primarily aimed at holding the criminal justice system accountable for systemic failures.” The ruling on a Crown appeal of the case of Kevin Morris of Toronto, a 22-year-old man convicted on four charges, including possession of a loaded gun, saw his one-year sentence doubled to two years, less a day.

David Curry, the lawyer who represented Middleton, said white judges are trying to rule on a historical issue they often have very little personal knowledge about. “They’re struggling to reconcile that with their understanding of the law,” he said. In time, though, he believes the Nova Scotia system will influence legal decisions across the country.

Middleton, meanwhile, has been making presentations about his case to Dalhousie University law students and said he has been working to create a support group that would include Black and Indigenous men. He says the 2016 report helped him shift his life towards these projects.

“It connected the dots,” he said. “It let me know not just what I was doing, but why I was doing what I was doing.”

This report by The Canadian Press was first published Feb. 3, 2022. 

Michael Tutton, The Canadian Press