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Before finishing his tenure at ANSJI, Brandon Rolle, in his role as Director of Legal Services in the Criminal Division, represented ANSJI as an intervener in heard by the Supreme Court of Canada.
The case, S.B. v. H.M.K. was a case where a sixteen-year-old Black youth was convicted of murder and sentenced as an adult.
The Black youth appealed the adult sentence and had an Enhanced Pre-Sentencing Report (EPSR) prepared. While the Ontario Court of Appeal admitted the EPSR as fresh evidence, the Court upheld the adult sentence.
S.B. was granted leave to the SCC along with a companion case, I.M. v. H.M.K., to ask the Court to revisit the test for sentencing a young person as an adult under the Youth Criminal Justice Act.
In Canada, before young people can be sentenced as adults, which Rolle says is “the most severe sanction available,” the Youth Criminal Justice Act says the court must be satisfied that “the presumption of diminished moral blameworthiness or culpability of the young person is rebutted,” and that any applicable maximum sentence under the Youth Criminal Justice Act “would not be of sufficient length to hold the young person accountable for his or her offending behaviour.”
ANSJI’s Involvement
ANSJI intervened to argue that social context evidence related to anti-Black racism will always be a relevant consideration when determining whether to sentence a Black youth as an adult . Because S.B., the Black youth in this case, had an EPSR, the issue of how social context evidence informs the adult sentence analysis was squarely before the court.
This will be the first case before the Supreme Court of Canada where Impact of Race and Culture Assessments™ (IRCA™) are talked about directly.A summary of ANSJI’s submissions is as follows:
That there is a legislative foundation in the YCJA and the common law for the consideration and application of social context evidence in the adult sentence analysis.
That IRCAs were developed in Nova Scotia specifically to interrogate systemic anti-Black racism at sentencing and should be the vehicle to introduce this social context evidence.
That IRCA evidence is applicable at both prongs of the test and a lens through which to apply all sentencing principles.
That IRCAs should be ordered and meaningfully considered in every adult sentence application for a Black youth, following the Anderson approach.
That judges should explicitly detail in their reasons how they have considered social context evidence revealed in an IRCA.
Rolle’s submissions also referenced two papers written by Maria Dugas, an African Nova Scotian law professor at the Schulich School of Law at Dalhousie University in Halifax. The Court sat a full bench (nine justices), which Rolle says signals that this is an important case. Rolle says that ANSJI continues “to be recognized national leaders in any discussion about social context evidence of systemic anti-Black racism and IRCAs.” A ruling by the Supreme Court of Canada on the case of S.B. v. H.M.K. is expected sometime in the new year.
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