FIRST READING: Fifteen days, fifteen identity-based criminal sentences

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The Supreme Court of Canada had barely convened for its fall session when it upheld a decision ruling that a Nova Scotia man who badly beat his girlfriend should receive a reduced sentence because he is Indigenous.

His badly beaten victim is also Indigenous, but in a 5-4 decision, the court ruled that an Indigenous man’s right to be spared “excessive imprisonment” outweighed an Indigenous woman’s right to be spared from “unacceptably high levels of violence and abuse.”

Such decisions are no longer anomalous in the Canadian legal system. It is now stated Canadian law that criminals must be treated (and punished) differently based on immutable factors such as race or country of origin.

If a criminal is Indigenous, they are provided with a Gladue Report itemizing the various traumas of their marginalized background and how it reduces their “moral blameworthiness” for crime.

If they are black, they are given an Impact of Race and Culture Assessment, which breaks down how “systemic racism” influenced their decision to break the law.

If they are a non-citizen, a judge may consider the “immigration consequences” of a conviction and assign a lighter sentence than would be received by a citizen who had committed the same crime.

Add all these together, and roughly every day a Canadian court is in session, someone is being considered for a reduced sentence because of their race, background or country of origin.

To prove it, we combed through 15 days of rulings on CanLII, an online database of Canadian court decisions. Specifically, a period running from Sept. 23 to Oct. 15; omitting weekends and holidays, it represents a block of 15 court days.

In that time frame, there were at least 15 examples of decisions involving identity factors. Fifteen days and fifteen identity-based judicial decisions.

The examples are below.

Ontario Superior Court of Justice, Oct. 15

Mouchamar Animer was convicted of trying to traffic crack cocaine through the mail; he’d been caught attempting to send drugs to what was described as a “vulnerable northern Ontario community.”

The Crown sought four years, but Animer received a sentence of “two years less a day,” with a judge somewhat ironically claiming that Animer’s moral blameworthiness was reduced in part because he’d grown up in a vulnerable Toronto community afflicted by drugs.

Born in Chad, Animer was eligible for an Impact of Race and Culture Assessment, which the judge described as outlining a man who “has had significant trauma in his life that at least in part caused him to lose his way.”

“When considering moral blameworthiness, I consider Mr. Animer’s personal circumstances, including the fact that he was a low-income young Black man growing up in Regent Park at the time of the offence who witnessed regular violence and substance abuse in his community,” it read.

Court of King’s Bench of Alberta, Oct. 15

Kendall Delaney pleaded guilty to trafficking fentanyl and methamphetamines, for which she received a sentence of six years. The decision revealed that Delaney knew her drugs were “literally killing people,” but the longest section of the ruling itemizes Delaney’s Indigenous background and why it made her less culpable.

Included was that her grandmother attended a residential school and that her Indigenous father was absent throughout her childhood, which “left her disconnected from her Indigenous heritage and culture.”

“These factors help explain how Ms. Delaney came before the Court. They are relevant to a proportionate assessment of her responsibility,” it reads.

Alberta Court of Justice, Oct. 14

The accused pleaded guilty to child luring. Specifically, of an 11-year-old girl whom he lived with. In rendering a sentence of 25 months, the judge noted the “intergenerational adversity” and “broader social circumstances” that may have compelled the man, who is Indigenous, towards becoming a sex offender.

At eight points in the decision, the offender’s “Gladue factors” or “Gladue circumstances” are cited as factors against his receiving a longer punishment.

“The Gladue factors before the Court are substantial and are entitled to significant weight,” it reads. While the factors do not “excuse” sexual exploitation of children, the judge wrote, “they do, however, reduce the sentence that would otherwise have been appropriate.”

Supreme Court of Canada, Oct. 9

Nova Scotia man Harry Cope attacked his intimate partner on a sidewalk, “repeatedly punching her and throwing her to the ground,” reads the decision.

Originally sentenced to five years, this was reduced to three years on appeal on the grounds that the sentencing judge hadn’t appropriately considered how the man’s Indigenous background made him less responsible.

This is despite the fact that the sentencing judge actually had done this, concluding that Cope’s “moral culpability was less” due to his Indigenous ethnicity. But the appeals judge — and the Supreme Court — ruled that it hadn’t been enough.

And again, this was done despite the fact that his victim was also Indigenous.

In a preamble, the decision states that this is necessary to atone for past instances in which Canadian courts did not take seriously the harms suffered by Indigenous people.

“The Canadian criminal justice system has alienated many Indigenous people, struggled to meet the needs of Indigenous communities and, in some circumstances, exacerbated the intergenerational trauma inflicted upon Indigenous people,” it reads.

Ontario Superior Court of Justice, Oct. 8

Temidayo Olasusi was convicted of eight counts relating to the abuse and sexual trafficking of an Indigenous woman. A sentencing decision noted that Olasusi has 13 prior convictions dating back to 2013, including credit card fraud and possession of child pornography.

Born in Nigeria, Olasusi received an Impact of Race and Culture Assessment, which said he grew up in a stable home and that all of his siblings are successful.

Nevertheless, it outlined various traumas, such as how “Mr. Olasusi’s educational experience was mostly negative with his parents siding with the views of teachers and administrators when concerns arose.”

“As for Mr. Olasusi’s background as a black man, he has clearly had a difficult upbringing and experienced anti-Black racism,” it reads, adding “although I have found no connection between those systemic issues and Mr. Olasusi’s difficult past to these specific offences, the impact of these factors will be accorded some mitigation and taken into account in determining the appropriate sentence.”

Olasusi got five years. With time served, he’ll be out in another 260 days.

Ontario Court of Justice, Oct. 8

This decision opens with a pull quote. “The overrepresentation of Indigenous people in Canada’s prisons is a present-day product of this country’s colonial past,” reads an introduction printed before any facts of the case are discussed.

It adds, “like residential schools before it, this overincarceration is an ongoing source of intergenerational harm to families and communities.”

The offender, Kieron Tierney, was a burglar convicted of 16 break-ins committed in a three-month period while he was already on parole.

As the decision’s introduction made clear, Tierney’s “Gladue factors” factored into the judge’s decision to render a sentence of 12 months time served.

Ontario Superior Court of Justice, Oct. 2

This is a pretty straightforward case of a man named Cade Morant being caught carrying a loaded illegal handgun. The Crown sought three years, the judge gave Morant 12 months of house arrest followed by probation, declaring that, as a Jamaican immigrant, his offence was “connected to systemic factors of anti-Black racism.”

The decision generously cited a 35-page psychological report pointing to Morant’s “lived experiences as a Black man in a high-risk neighborhood” and a life spent navigating “systemic discrimination, racial profiling, and a chronic lack of safety.”

Provincial Court of British Columbia, Oct. 2

Marek Grundza struck and injured a police officer with his car, and then fled the scene, leaving the officer bleeding on the side of the road.

As a permanent resident without citizenship, Grundza could potentially face deportation to his native Czechia. A sentencing judge cited this as a potential “collateral immigration consequence,” which partially factored into his decision to hand down a sentence of house arrest instead of jail.

“If a regular jail sentence is imposed, then he will not have a right of appeal,” it reads, adding that it “amounts to a collateral consequence and should be a factor on sentence to be considered with all the others.”

Ontario Superior Court of Justice, Oct. 1

Abdoul Bah was convicted of an armed carjacking at a Scarborough, Ont., parking lot. He was caught only because he was unlucky enough to have done it in front of an off-duty police officer who was in the area to get a pizza. Said officer was shot at by Bah as he made the arrest.

Bah is a West African immigrant, and the “circumstances” of his marginalized background comprise the lengthiest section of the ruling, which ultimately did grant the Crown’s request for a 10-year sentence.

But the decision notes this is in spite of a whole galaxy of itemized personal traumas, such as Bah having a learning disability and Bah accusing his high school principal of once having said something racist.

“I accept that Mr. Bah has experienced systemic racism,” the ruling read.

Like a lot of these cases, the decision also weighed the various ethnicities of Bah’s victims. The people he carjacked “are also racialized Canadians,” and the officer who risked getting shot in arresting Bah is noted as “an immigrant.”

Court of Appeal for Saskatchewan, Sept. 29

Aaron Slippery appealed a 500-day jail sentence imposed after his third parole breach relating to a conviction on child pornography possession. The breach was that Slippery had used the internet to access pornography in breach of his parole conditions.

The appeal was premised on Slippery’s assertion that the judge had “erred by not considering his Gladue factors.” The appeal was dismissed, but only after a judge ruled that Slippery’s “Indigenous background” and “disadvantages” had indeed been appropriately accounted for.

Nunavut Court of Justice, Sept. 29

The accused, identified only as A.A., was sentenced to 4.5 years in jail for a sexual assault on a toddler. A.A. was caught reaching under the diaper of a sleeping girl under two years old, having an “erect” penis throughout. The decision noted he’s had 14 prior convictions, including two for sexual assault.

The offence happened in Nunavut, where the majority of the population is Indigenous. But the sentencing judge noted that the court had no choice but to factor Indigeneity into the ruling. “This Court must take judicial notice of such matters as the history of colonialism, displacement, and residential schools,” it read.

As such, it detailed that his mother had gone to residential school, his father had died by suicide and he’d had problems with substance abuse. “These are factors that do not excuse his behaviour, but they contextualize it,” it read.

Ontario Superior Court of Justice, Sept. 28

Zachary Telford pleaded guilty to charges of trafficking fentanyl and methamphetamines, for which a judge would give him a two-year sentence described as “generous” and “charitable.”

In arriving at this outcome, the court noted it had the “benefit of a lengthy Gladue report.”

His mother is “an Indian Day School survivor.” His great-grandmother “was a survivor of the Indian Residential Schools system.” His grandmother “was also a survivor of that system.”

The report said that Telford’s family history “reflects the cumulative and intergenerational impacts of colonial policies, including residential schools, Indian Act restrictions, forced family separations, and socioeconomic hardship.”

All of which the court accepted as reasons for Telford’s drug trafficking. “This Court accepts, unreservedly, that the said trauma contributed to Telford’s overall family environment and development and, ultimately, contributed to his addictions and his offending behaviour,” it read.

King’s Bench for Saskatchewan, Sept. 25

Craig Fox was found guilty of second-degree murder; he’d shot a man in the back of the head that he’d accused of being a “skinner” — a child sex abuser.

At the time, he had at least 55 prior convictions, including four that were violent. It’s why he’d been under a specific order not to own or handle firearms at the time of the shooting.

The sentence was 15 years; longer than the 10 years sought by the defence. But as Fox is Indigenous, the decision had to consider whether putting him in prison would unjustifiably contribute to the “overrepresentation” of incarcerated Indigenous people.

And indeed, the judge found “significant Gladue considerations.”

“He has had a life marred by intergenerational trauma, colonialism and residential schools, childhood poverty, abuse, and addictions,” it read.

All of which “does reduce his moral culpability somewhat.”

Ontario Superior Court of Justice, Sept. 23

In 2020, Montana Lewis stabbed his twin sister’s boyfriend to death after a fight. Originally charged as first-degree murder, it resulted in a conviction of manslaughter. Lewis got a sentence of 11.5 years, meaning he’ll be out in 4.5 years when accounting for his time spent in pre-trial custody.

The judge makes clear that “Gladue factors” helped result in a shorter sentence. Cited was the fact that Lewis’s grandparents had gone to day school, and that his history of alcohol and drug abuse was due to “colonial government practices and historical trauma.”

The decision notes that Lewis is a member of the Wiikwemkoong First Nation, “which never surrendered its land through treaty or agreement.”

The Provincial Court of Manitoba, Sept. 23

The accused was convicted of a range of charges related to his pimping out of an underage Indigenous girl. “Over the course of three to four months, she engaged in sexual activity with approximately one hundred men, sometimes several in one day,” reads the decision. “She was 17 and vulnerable; a ward of CFS and with many pre-existing diagnoses.”

The Crown sought 12 years, and a judge handed down 11 years. Although the decision noted this was despite the “diminished blameworthiness” of the offender because he came to Canada as a refugee from Sierra Leone.

“He’s experienced racism in Canada,” reads the decision. “These combined experiences have contributed to his life choices, which in turn make his involvement in the criminal justice system somewhat unsurprising.”

First Reading is a Canadian politics newsletter curated by the National Post’s own Tristin Hopper. To get an early version sent directly to your inbox, sign up here.