For the first time in Quebec, a judge has considered a pre-sentencing report known as an Impact of Race and Culture Assessment (IRCA) to help determine the sentence for a Black offender.
Last week, Quebec Court Judge Magali Lepage sentenced 52-year-old Frank Paris to 24 months in prison, after Paris pleaded guilty to drug trafficking charges at the Longueuil courthouse.
Lepage’s decision, which was delivered from the bench, has not yet been published. But La Presse reports that Lepage said in her decision that after reading the IRCA, “the court decided to reduce the sentence, which should be 35 months, to 24 months.”
The assessments, which consider the effects of poverty, marginalization, racism and social exclusion on Black offenders, have been used to help determine sentences in other provinces for years, but never in Quebec — until last week.
“I’m very happy. It’s a great decision,” said Valérie Black St-Laurent, director of the legal referral service Jurigo and one of the lawyers who helps train experts in Quebec to prepare the reports.
But the reaction from Quebec’s minister responsible for the fight against racism, Christopher Skeete, was less glowing.
“My first instinct is one of concern and worry,” Skeete told CBC in an interview Thursday.
“If we live in a society where people are judged by their skin colour, I’m not sure that’s a way forward for us to fight racism,” Skeete said.
Similar report for Indigenous offenders
While pre-sentencing reports that consider the personal and economic circumstances of people convicted of crimes are used in many cases in Canadian courts, Black St-Laurent said those reports don’t go far enough when considering Black offenders.
“There are a lot of things that are systemic and institutional that also affect someone’s behaviour, their outlook on life and how they navigate society,” she said.
“This is why traditional pre-sentencing reports are insufficient to address really the whole portrait of a Black accused.”
Black St-Laurent said IRCAs were first used in sentencing considerations in Nova Scotia in 2014, and that since then, they’ve been used in several court decisions across Canada. The federal government provides funding to help cover the costs of preparing IRCAs and training experts in how to write them.
A similar type of pre-sentencing report for Indigenous offenders, called a Gladue report, has been commonly used in Canadian courts since a Supreme Court decision in 1999.
That decision obliges judges to use Gladue reports to consider systemic factors such as the history of residential schools, child welfare systems and colonization when sentencing all Indigenous offenders.
“The idea is to make the process fairer, to acknowledge that you might have had less opportunity, less life choices,” Karine Millaire, a law professor at Université de Montreal, told CBC in an interview.
Millaire says IRCAs for Black offenders are the next logical step after Gladue reports.
“Indigenous people are the group in Canada experiencing the most systemic discrimination in the judicial system. Black people are the second group,” she said.
“Black people tend to be more likely to be accused even if they are not guilty of some crimes. The system tends to also give them longer prison sentences,” Millaire said.
But IRCAs don’t have the same legal weight as Gladue reports, she said .
“We amended the Criminal Code to entrench this obligation to consider systemic considerations using Gladue reports,” Millaire said. “But in the case of Black people, this practice is developing in the case law, but the Criminal Code has not been amended yet.”
Case of reduced sentence
In the case of Paris, who was given a reduced prison sentence last week, the IRCA is 54 pages.
It includes a summarized history of the Black experience in Quebec, with references to slavery, racial profiling and different forms of systemic discrimination.
It also uses interviews with Paris and his friends and family to outline how these factors interweave with his personal experience.
In the absence of a written decision from the judge, it’s hard to say precisely which points in the IRCA she drew from to determine Paris’s sentence.
In a column Thursday, La Presse columnist Patrick Lagacé slammed the IRCA used in the Paris case, calling it “bullshit.”
Lagacé said the IRCA is littered with leaps of logic and assertions that aren’t backed up by facts. He noted Paris told the IRCA’s authors that he was a good student and never experienced any form of racism in primary or secondary school.
Lagacé also objected to the report’s passive voice, noting that it says Paris “ended up getting involved in selling drugs” instead of saying “he sold drugs.” Lagacé concludes that the report seems to remove most of Paris’s personal responsibility for his crimes and blames them entirely on systemic factors.
Millaire, however, said Lagacé failed to consider the report in its entirety and the case law that supports the use of IRCAs.
“I think his opinion is very unfortunate in the context where it’s still difficult to have systemic racism being acknowledged in the Quebec context,” Millaire said.
She also noted that unlike Gladue reports, judges aren’t obliged to consider the findings of IRCAs; it’s up to their discretion. It’s just one of the many useful tools a judge can use when considering sentencing, she said.
“It’s not because you consider a report that you have to necessarily base your decision only on that report.”
Political backlash
Skeete says judges already have enough leeway to consider extenuating circumstances in their sentencing decisions.
“The unwanted result of what we’re doing here is creating a new type of law, which inherently creates a new type of citizen,” he said. “This new citizen is themselves immune to certain actions in the Criminal Code because of the colour of their skin.”
The minister wasn’t the only concerned politician.
Thursday afternoon, Pascal Paradis of the Parti Québécois (PQ) said on his X account that he rejects the idea of differentiated justice based on skin colour.
“Exacerbating ethnic identities will not create greater social cohesion or social justice; on the contrary,” he wrote. He noted that the PQ is reserving further comments for when the judge’s written decision is revealed.
It is unclear when that will be.
In Paris’s IRCA report, the authors noted that they are currently completing two IRCAs in Quebec to “support the introduction of these cultural assessments in this province.”
