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NP View: Justice by skin colour

Liberal race-based sentencing undermines the rule of law

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Since 1982, a statue of Lady Justice has stood in front of the Vancouver Law Courts, her eyes blindfolded to highlight the ideal that justice should be applied evenly regardless of wealth, power or race. Yet over the past 30 years, Parliament and the courts have systematically restored her sight, creating a system that shows leniency to offenders based on the colour of their skin and denies justice to their victims. This is wrong. Sentences should be based on the severity of the crime and the likelihood of recidivism, not a perpetrator’s racial or cultural background.

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In 2021, Everton Javaun Downey drove with his girlfriend, Melissa Blimkie, to a Vancouver-area mall, parked in the parkade and walked with her into a stairwell, where he proceeded to stab her 15 times, delivering fatal blows to her lung, heart, kidney and liver. Downey was convicted of second-degree murder last month and sentenced to life in prison, but he could be out in as little as 12 years simply because he’s Black.

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The B.C. Supreme Court handed down a lesser sentence than the Crown had asked for because of the “mitigating circumstances” detailed in Downey’s Impact of Race and Culture Assessment (IRCA). These documents gained prominence in 2021, when the Nova Scotia Court of Appeal ruled that they need to be considered in criminal cases. The federal government then pushed them on the rest of the country, signing agreements with six of the 10 provinces and allocating millions to fund their creation. Between 2021 and 2024, the use of IRCAs increased 82 per cent throughout the country.

In Downey’s case, it should have been clear that he poses a danger to society. He had an extensive criminal record, including violent crimes and firearm offences. He was paranoid and delusional, believing he was being tracked through a microchip in his ID card, watched by people on the street and through pinholes in his ceiling, and forced to ingest a white powder by random strangers and his own girlfriend. And he stabbed an innocent woman 15 times in cold blood.

In an earlier era, the courts likely would have recognized that Downey was “mad” and locked him up for as long as possible. But his IRCA changed the calculus. Although it noted that he “did not experience overt racism” growing up in Toronto, it said that he was raised in poverty without a father. And after he moved to British Columbia in 2016, “he found a much smaller Black population,” which “contributed to feelings of disconnection and isolation.” Drawing on his IRCA, the court found that “broader systemic, structural and community factors relating to Mr. Downey’s experience as a Black person” were at least partially responsible for his “mental health challenges,” thus justifying his reduced sentence.

And this is by no means an isolated incident. In 2022, for example, a Nova Scotia man was convicted of incest after impregnating his 23-year-old intellectually disabled daughter, who gave birth to a baby with severe disabilities. The charge carries a maximum penalty of 14 years in prison, but he got off with two years of house arrest, in part, because he’s Black.

Or take the case of Jason Leo Tait, who helped cover up the murder of Keenan Crane, a 22-year-old Calgary man who was beaten, administered a lethal dose of fentanyl and dumped on a nearby First Nation. At one point, Tait bragged to an undercover officer that he’d be given a Gladue “discount” in sentencing, referring to Gladue reports, which are similar to IRCAs but used in cases involving Indigenous offenders. Tait’s prediction proved correct: after being convicted of accessory to murder after the fact, the Crown sought a 10-year sentence, but on Feb. 17, a judge sentenced him to just six and a half.

Gladue reports are named after a 1999 Supreme Court case, R v Gladue, but they stem from a 1995 amendment to the Criminal Code, which forces courts to consider “all available sanctions, other than imprisonment … with particular attention to the circumstances of Aboriginal offenders.” It was intended to reduce the over-representation of Indigenous people in prison, though it has had little effect. Instead, it’s led to a series of violent criminals getting reduced sentences.

Like Kenneth Morrison, who was convicted of murder and sentenced to life in prison with no possibility of parole for 25 years, but had his conviction overturned, and replaced with a manslaughter conviction, due to his Indigenous ancestry and will only serve 12. Or Laimiki Toonoo, who had two years knocked off his attempted murder sentence because he’s Inuit and would be forced to live outside Nunavut.

The sad truth is that while our justice system is attempting to be “fairer” to minorities who are often over-represented in the justice system, it has the effect of denying justice to their victims, who are disproportionately members of the same minority groups. According to a 2023 Statistics Canada study, for example, between 2009 and 2021, 86 per cent of those accused of murdering Indigenous women and girls were Indigenous themselves.

This is a problem that Parliament created, and one that Parliament needs to remedy. Justice should be blind.

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