A Canadian judge has cited race as a factor in sentencing a black father to house arrest for incestuously impregnating his mentally disabled adult daughter, instead handing down the prison sentence sought by prosecutors.
Halifax Provincial Court Judge Ann Marie Simmons handed down the ruling in June 2022, which came to light in a recent Nova Scotia Court of Appeal ruling released in late August.
The 59-year-old father, identified only as RBW in court documents, pleaded guilty to having sexual intercourse with his biological daughter between September 2018 and June 2019. Both he and the daughter are mentally disabled.
The case only came to light in the summer of 2019, when the then-23-year-old daughter gave birth to a baby with serious medical problems and developmental delays and concerns from a medical geneticist led to police intervention, according to court documents. The child is now in a foster family.
At sentencing, Simmons imposed house arrest, also known as a conditional sentence. However, Crown prosecutors appealed, arguing the sentence was too lenient and not legally possible for the crime of incest.
Halifax Provincial Court Judge Ann Marie Simmons cited race as a factor in sentencing a black father who impregnated his developmentally disabled adult daughter to house arrest
Halifax can be seen in a file photo. The 59-year-old father, identified only as RBW in court documents, pleaded guilty to having sexual intercourse with his 23-year-old biological daughter
When announcing the verdict, prosecutors had called for a prison sentence of four to six years, based on sentences that had been imposed in similar situations.
However, the sentencing judge concluded that these precedents were merely guidelines and found that RBW was remorseful and unlikely to re-offend.
Simmons also described father and daughter’s involvement in incest as “equal,” noting that she was not a minor and that the case did not appear to involve grooming, threats or violence.
But in a column for the National Post following the recent appeal ruling, Jamie Sarkonak noted that race played a role in Simmons’ decision and that the judge “also noted that the perpetrators in previous cases were not African Nova Scotians.” .
“In deciding whether offenders with such a legacy should serve house arrest or prison, the court wrote that ‘a more nuanced approach’ was needed.” “In short, a racial discount should be given,” Sarkonak added.
The sentencing judge relied in part on a relatively new feature of the Canadian legal system known as Impact of Race and Culture Assessments (IRCAs), which are pre-sentence reports that educate judges about systemic racism and other disadvantages that offenders face Black or other ethnic minorities.
“The moral culpability of an African Nova Scotian offender must be assessed in the context of historical factors and systemic racism, as was done in this case,” the sentencing judge wrote in a ruling upheld by the majority of the Court of Appeal.
“Sentencing judges should consider the impact that social and economic disadvantage, historical disadvantage, reduced and non-existent opportunities and limited options may have had on the offender’s moral responsibility.”
Judge Anne appeals. S. Derrick cited this passage approvingly in her August 23 statement upholding the house arrest and added her own analysis of the role that systemic racism should play in sentencing decisions.
Judge Derrick (left) is seen at a swearing-in ceremony in 2017. “The limited circumstances of African Nova Scotian offenders may reduce moral culpability,” she wrote in a statement
On the three-judge appeals panel, Judge Joel E. Fichaud (left) agreed with Derrick, but Judge David P.S. Farrar (right) dissented and said he would send RBW to prison
“A causal connection need not be established between the systemic and background factors and the commission of the offense before a sentencing judge may consider it,” Derrick wrote.
“The limited circumstances of African Nova Scotian offenders can reduce moral culpability, and the information in an IRCA can be used as a basis for building alternatives to incarceration for Black offenders and reducing over-reliance on incarceration.”
On the three-judge appeals panel, Judge Joel E. Fichaud agreed with Derrick.
However, Judge David PS Farrar disagreed, writing that he believed house arrest was not a legally possible option for the crime of incest, which carries a maximum penalty of 14 years in prison.
“I cannot rule out a prison sentence.” “Incest is a very serious offense and RBW’s moral culpability is high,” Farrar wrote in his dissent, saying he would sentence RBW to two years in prison.
“The IRCA lays out the difficulties he endured. However, there are cases where the seriousness of the crime requires serving a prison sentence. This is one such case.’