Crime, punishment and prejudice: Courts weighing whether race has a role in sentencing black offenders

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Before Kale Gabriel was a 30-year-old man serving a life sentence for second degree murder, before he acquired a .357-calibre revolver, before he sold crack in his housing project, before he did time at a youth corrections facility, and before he got expelled from school, he was just a curious young black boy in Yarmouth, N.S.

He liked to take things apart to see how they worked, like the radio his mother had bought from Sears. He built a potato cannon using some stray pipes he found at home. After learning to garden from his mother, he acquired some cannabis seeds – not because he wanted to grow the plant to smoke or sell, but because he wanted to see what conditions the seeds would sprout in: the cubby hole under the steps? A light fixture? The holes in the socket of an extension cord?

As a kid, he had sand-coloured skin and a coarse mop of black curls on account of being part African Nova Scotian and Mi’kmaq on his father’s side – though he didn’t know him – and Métis on his mother’s. But he always thought of himself as black. And in this community, where virtually every other kid had a light complexion, that’s how others saw him, too.

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One day in junior high, he got into a scrap with another kid in French class who called him a racial epithet. Mr. Gabriel was given a suspension. As the two boys walked away from the school office after the fight, the kid turned to Mr. Gabriel and sneered, “The only reason why you don’t have no red marks [on your body] is because you’re black.” Mr. Gabriel beat his classmate up again, this time in the hallway, and received another suspension.

He didn’t know what the school-to-prison pipeline was, but by this time in his life, Mr. Gabriel was already in it.

That’s what Lana MacLean, a Nova Scotia social worker, concluded after learning Mr. Gabriel’s life story decades later. And that was the gist of the cultural impact assessment that she gave to the sentencing court following his second-degree murder conviction in 2016, at the behest of Mr. Gabriel’s lawyer, Brandon Rolle.

The goal of the assessment was to contextualize how being black had impacted Mr. Gabriel’s life and set him on the path to commit the crime for which he had been convicted.

It was a first for an adult offender in Canadian court – an attempt by Mr. Rolle to address the overrepresentation of black people in prisons – but it took its cues from Gladue reports, which are prepared ahead of sentencing of Indigenous offenders, and which put Indigenous lives in the context of the history of systemic racism and disadvantage they have faced in the country. Black Canadians make up 8 per cent of the federal prison population, though they are only 3.5 per cent of the overall population.

Incarcerated black people as percentage

of total incarcerated population

Black people as percentage

of total population (2016)

10%

8

6

4

3.5%

2

0

‘09

‘10

‘11

‘12

‘13

‘14

‘16

‘16

‘17

‘18

THE GLOBE AND MAIL, SOURCE: FEDERAL OFFENDER

TRENDS, OFFICE OF THE CORRECTIONAL

INVESTIGATOR, APRIL 2018

Incarcerated black people as percentage

of total incarcerated population

Black people as percentage of total population (2016)

10%

8

6

4

3.5%

2

0

‘09

‘10

‘11

‘12

‘13

‘14

‘16

‘16

‘17

‘18

THE GLOBE AND MAIL, SOURCE: FEDERAL OFFENDER TRENDS,

OFFICE OF THE CORRECTIONAL INVESTIGATOR, APRIL 2018

Incarcerated black people as percentage of total incarcerated population

Black people as percentage of total population (2016)

10%

8

6

4

3.5%

2

0

2009

2010

2011

2012

2013

2014

2016

2016

2017

2018

THE GLOBE AND MAIL, SOURCE: FEDERAL OFFENDER TRENDS, OFFICE OF

THE CORRECTIONAL INVESTIGATOR, APRIL 2018

Since Mr. Gabriel’s assessment, lawyers in five other cases involving African Nova Scotians have submitted them in sentencing, and at least three others have in Ontario. In many of these sentencing decisions, judges have quoted from the R. v. Gabriel decision and the judge’s discussion of how race should be considered.

The integration of these reports into the court system is seen by some as a sign that Canada is coming to terms with its legacy of racism. The individual lives of criminals are often studded with tragedies and traumas, but a cultural impact assessment acknowledges the role of larger, more pervasive and less immediately visible obstacles in the lives of racialized people.

But their use raises many questions without easy answers – like whether they grant less moral culpability to an individual simply based on their skin colour or the struggles of their ancestors. Ms. MacLean says she has seen her cultural impact assessments dismissed as an attempt to get black offenders a “race discount.”

Others wonder what good they can do if they aren’t aren’t even enshrined in law, as Gladue reports are. It’s at a judge’s discretion whether or not to even allow a cultural impact assessment to be submitted at sentencing and even after one is, the judge is not required to read or consider it when preparing their decision.

After his colleague had come up with the plan to commission the report, Geoff Newton, Mr. Gabriel’s other trial lawyer, sought his client’s consent. He explained to Mr. Gabriel that given how serious a second-degree murder conviction is, the assessment might not make much of a difference to his sentence.

“But this isn’t just about Kale Gabriel,” he told him.

Mr. Gabriel thought about all the other black men he’d seen while he was locked up awaiting trial, the teens he’d been incarcerated with when he was in a youth facility in Waterville, N.S. and his three children who had darker skin and kinkier hair than his own. He gave his lawyer the green light.

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In 2016, Mr. Gabriel was convicted of second-degree murder in the 2010 death of Ryan White. He and Mr. White, then in their early 20s, were both selling crack in Mulgrave Park and were in a dispute over turf, the court heard. Tensions escalated for weeks between the men until one day, when Mr. Gabriel heard that Mr. White and some friends were sitting near his home. He got a handgun, tucked it into his waistband, and went out, anticipating a confrontation. After he and Mr. White grappled, Mr. Gabriel pulled out the gun and shot Mr. White, who later died in hospital.

Mr. Gabriel’s defence team argued that their client had acted in self-defence and the gun had fired accidentally as the two men struggled to gain control of it, but a jury convicted Mr. Gabriel. His sentencing was due that spring but postponed by almost a year after his defence team was given permission to put together a cultural impact assessment for Mr. Gabriel.

Ms. MacLean’s job in authoring these assessments is not just to lay out the offender’s behaviour over the years, but to explain what motivates it. After she’d taken a month to read through all the material Mr. Rolle had given her – pre-sentence reports, medical records, transcripts – she put together a narrative of Mr. Gabriel’s life and his crime based on what the court heard.

Then, after doing her own investigation of sorts – extended interviews with Mr. Gabriel; with his mother; with an educator who knew him when he was young; and based on other records from Mr. Gabriel’s life – she put together another narrative, a cultural one built on hypotheses she had about Mr. Gabriel and the themes in his life. Her final report was a 27-page document that outlined the unique history of black people in Nova Scotia, Mr. Gabriel’s troubled upbringing, his struggles in school and work and how he was drawn to crime. She sketched his life with empathy.

Near the end, Ms. MacLean put forth an idea she hoped would not seem radical to anyone who had read the full report: “Mr. Gabriel holds the position of both victim and perpetrator from the lens of the cultural impact assessment,” she wrote. “Many of his personal choices and behaviours have been influenced by systemic racism and psychosocial cultural and historical variables.”

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Mr. Gabriel enters the Warden’s Boardroom with the slow, easy swagger of a man who is in no rush – he has a life sentence hanging over his head, after all.

Were it not for his escort, a corrections officer who sits a few feet away, Mr. Gabriel would blend in to a crowd in any big Canadian city. He’s in a white tee, faded jeans and a pair of Nike Jordans that are so impeccably maintained it’s clear they’re a prized possession. He wears wire-framed glasses, a small gold hoop dangling from each ear lobe and a gold-banded watch on his wrist. Technically, this meets the dress code at Millhaven Institution, a maximum-security federal prison near Kingston, Ont.

He asked to be transferred here after his sentencing in 2017 to be closer to his family, who live a few hours away in Hamilton, Ont. They’ve not been able to visit yet due to the expense of the trip, but maintain a link to Mr. Gabriel through phone calls.

The first question his kids always ask is, “When are you coming home?” They know he’s in prison, but he’s told them that it’s because he didn’t wear a helmet while he was riding a bike.

Mr. Gabriel’s father didn’t offer his own children the same protections. One day, while his father was out on a fishing trip, Mr. Gabriel’s mother found a bag of cocaine in his father’s bedroom. When her partner returned home, she kicked him out of the house. Mr. Gabriel was only two years old then.

In her report, Ms. MacLean describes Mr. Gabriel as having “disruptive, disconnected family ties” that are common among black families, especially in Nova Scotia. She links this back to the legacy of slavery in the region, which was built upon separating families. Children could not form strong bonds with their parents, and were denied the ability to develop in a safe environment. A tradition of dislocation continued long after the end of slavery, with devastating impacts.

And in Justice Jamie Campbell’s sentencing decision, he refers to this instability too, noting that as an adolescent, Mr. Gabriel would see his father selling drugs around the playground in town. Mr. Gabriel, his brothers and his mother bounced between Yarmouth, Digby and Dartmouth, N.S. and Hamilton, Ont. for many years, moving first after six-year-old Mr. Gabriel was sexually molested by another kid in the neighbourhood, then after his mother’s partner got into a fight and wanted to avoid retaliation, then again after his mother learned that her partner was using crack.

In short, Mr. Gabriel’s upbringing wasn’t easy.

“His own perception of his childhood as being relatively stable is perhaps a comment on his diminished expectations rather than reality,” Justice Campbell wrote.

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When Mr. Gabriel and his brothers complained to their mother of discrimination, she told them, “Don’t let people talk down to you because of your race. If you don’t stand up for yourself, nobody will stand up for you.”

In elementary school, his teachers complained that he was a major disruption in the class – he’d sing jingles from commercials and couldn’t sit still – and he was diagnosed with ADHD and put on medication. He learned later this was the fate of many young black boys. His mother hated how he became a zombie while he was on it. “You could put him in a corner and give him a ball of yarn and he’d be there all day,” she said, so she later took him off it.

He loved math and remembers one teacher who encouraged him, but most others interpreted his antics as misbehaviour and failed to offer him supports and resources to help him succeed, Ms. MacLean found.

When Mr. Gabriel was six years old, a hefty report was released by the Black Learners Advisory Committee on Education. Educators across the province were found to have lower expectations of black students and to mete out more severe punishments to them, compared to other students. This led to higher dropout rates for black students and, down the road, high rates of unemployment.

“Most African Canadian children are from birth trapped in a vicious cycle of societal rejection and isolation, poverty, low expectations, and low educational achievement," the report said. And little has changed today. During the 2015-2016 school year, for example, 22.5 per cent of the students suspended by the Halifax Regional School Board were black, even though black students only make up 7.8 per cent of the total population.

After his two suspensions for fighting, triggered by being called a slur by a classmate, Mr. Gabriel was not allowed to ride the bus to his school, which meant he had to do the 28-kilometre round-trip journey by bike. He dropped out of school in grade 9. Mr. Gabriel tried a few times to finish school through a community college program but never succeeded.

Brenda Clarke, a black educator who knew Mr. Gabriel in Yarmouth, expressed she wasn’t surprised by the path Mr. Gabriel’s life took given what she knew of him two decades earlier and the presumptions others made given their experiences with other males in his family.

“Kale would have been successful if he wasn’t black, have the Gabriel last name, and didn’t live in Yarmouth, where the expectations for his learning were already predetermined for him to fail in the system,” she told Ms. MacLean.

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After Mr. Gabriel dropped out of school, he began getting in trouble with the law. His rap sheet soon included convictions for theft and assault and he spent time at a youth facility in Waterville, N.S. What he saw at home was much worse, though.

When he was 15, Mr. Gabriel witnessed his mother’s boyfriend stab one of her friends in the chest eight times. He intervened – pulling the boyfriend off – to prevent the friend’s death. That same year, when Mr. Gabriel was babysitting his niece, three men who had an issue with Mr. Gabriel’s crack-dealing older brother arrived at the house, threatened to kill everyone present, assaulted Mr. Gabriel and stole several items from the property. After he made a police statement which led to one man’s arrest and conviction, Mr. Gabriel says he was labelled a “rat” and that reputation followed him for years, prompting him to move a few times out of fear there was a target on his back. He eventually landed with his partner and children in government housing in Mulgrave Park.

While he was now finally surrounded by other black people, Ms. MacLean observed that the experience of being black in his new home was in many ways just as isolating as it was in Yarmouth since it was viewed by much of the rest of the city as nothing more than a dangerous and impoverished black neighbourhood.

Without a high-school diploma, Mr. Gabriel, like so many other black males, struggled to find well-paying work and, Ms. MacLean wrote in her assessment, “the temptation to enter the world of criminal activity largely arises as a result of these poor employment opportunities.”

A month and a half before Mr. White’s murder, the only drug Mr. Gabriel had experience selling was cannabis, which he had done off and on for years. But his daughter’s birthday was coming up, and what he was making off cannabis sales wasn’t enough to cover mounting expenses, so he began selling crack. His dream was to earn enough cash to get his kids out of the neighbourhood.

“[They’re] playing outside and about 20 feet away there’s some guy on what he considers the block selling drugs and carrying guns,” he says, shaking his head. He then throws up his hands: “I was one of them guys so I can’t be a hypocrite, but I just know what goes on there.”

He and his family did make it out of Mulgrave Park, but not in the way he’d hoped.

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Nearly a year after Mr. Gabriel’s second-degree murder conviction, Justice Campbell delivered his sentence. In his decision, he wrote that cultural impact assessments serve as a reminder of the tension between an offender’s ability to exercise free will in making life decisions and the fact that his worldview is shaped by his community. But he ultimately concluded that Mr. Gabriel did not have “diminished moral responsibility” simply based on his experience as an African Nova Scotian male.

The defence had asked for parole eligibility at 10 years, while the Crown sought 15 years. Justice Campbell set it at 13. Mr. Gabriel wasn’t happy, and both he and his mother questioned whether all the time and effort put into the cultural impact assessment was even worth it.

But Mr. Gabriel’s lawyer, Mr. Newton, had a different read.

“You could say for Kale we were disappointed but for the bigger picture, we were happy that Judge Campbell took the time to recognize the importance of [cultural impact assessments],” he said – and in the highest court in the province, no less.

In the spring, Ontario Superior Court Justice Shaun Nakatsuru delivered the first sentence in the province that relied on a cultural impact assessment, for a black man who had pleaded guilty to charges of gun possession and breaching a prohibition order. He referenced R. v. Gabriel in his decision, and wrote: “I find that for African Canadians, the time has come where I as a sentencing judge must take judicial notice of such matters as the history of colonialism (in Canada and elsewhere), slavery, policies and practices of segregation, intergenerational trauma, and racism both overt and systemic as they relate to African Canadians and how that has translated into socio-economic ills and higher levels of incarceration."

Several criminal defence lawyers who represent African-Canadians say their goal is to have judges required by law to consider these assessments, just as they do for Gladue reports. In Nova Scotia, the province is in discussions to set up a policy where these assessments can be ordered by the court and paid out of the justice department’s budget.

But this move towards mainstreaming has its skeptics.

If reducing rates of incarceration of African-Canadians is the end goal, then these assessments aren’t the right way to get there, says Ivan Zinger, Canada’s correctional investigator. He points out that Gladue reports have been around for nearly two decades but the trend has been a steady increase in the number of Indigenous individuals incarcerated every year. While they’re only 4 per cent of Canada’s population, they make up 28 per cent of the prison population.

“I don’t think to apply the same logic and the same approach as Gladue will be a panacea. You have to look upstream,” he says. He suggests first addressing the barriers young black men like Mr. Gabriel face, such as lack of job opportunities and high dropout rates, rather than “to wait until the back end of the criminal justice system.”

When Mr. Gabriel’s sentencing was delayed in order for his assessment to be prepared, his victim’s mother didn’t take well to it.

“I think that a crime is a crime, and colour shouldn’t matter whatsoever,” Theresa White told CTV in 2016. Multiple attempts to reach Ms. White for this story were unsuccessful.

Robert Wright, a black sociologist and social worker who wrote the first cultural impact assessment in Canada in 2014 for a Nova Scotia youth case, does not agree. “The ‘race discount’ that people are talking about is not a discount as much as it’s calling attention to the fact that we have been systematically overcharged forever,” he says. If that results in a lower sentence, “that’s not a discount, that’s justice.”

Though African Nova Scotians are a distinct group with a 400-year history in the province, extending such assessments to other racialized offenders elsewhere in Canada could be more complicated. How would the background of a first-generation Somali immigrant in Edmonton be considered? A second-generation Trinidadian in Toronto? A Moroccan international student in Quebec City?

Lisa Kerr, an assistant law professor at Queen’s University and sentencing expert, says that higher rates of offending are also due to particular communities being over-policed and over-prosecuted. But ultimately, no matter which racialized group a cultural impact assessment is prepared for, the author will have to show a strong relationship between those factors and the offender’s particular life story.

In Nova Scotia, the judiciary organized a two-day workshop in June for judges to learn about the lasting effects of systemic racism.

“The more we can help our judges understand the circumstances and challenges faced by these marginalized groups, perhaps more likely they will be to turn their minds to whether or not there is a need for a cultural assessment report in a particular case before them,” said Pamela Williams, chief judge with Nova Scotia’s provincial and family courts.

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Though he will be at Millhaven for many more years until he’s eligible for parole, Mr. Gabriel finds optimism in how the sentencing decisions for other African Nova Scotians have referred back to his own case, that these assessments are now being used in Ontario.

“Criminals or not, we’re all part of a society,” he says. “I’m done with my old life and change starts with me. I’m just glad that I can help in any way.”

In July, Mr. Gabriel learned he had been denied an appeal. Now, he says, his focus is "staying out of trouble” as he counts down the days until Aug. 28, 2026, when he will be eligible for parole.

He has been thinking a lot about how he got here lately. His partner is currently looking for work but is still managing to survive and raise the children without his help or financial support. It’s made him realize there were alternatives to the lifestyle he chose, he says.

“Of course nobody wants to be broke and that’s probably half of the reason why I sold drugs off and on just so times wouldn’t be tough. But I think I would have rather times been tough than me being where I’m at.”