A Novia Scotia appeals court has upheld the house arrest sentence for a father who impregnated his own daughter, citing race as one factor in offering leniency to the offender, who is black.
Justice Anne S. Derrick wrote the opinion for the two-judge majority, finding the sentencing judge’s punishment of house arrest for two years minus one day ‘was not manifestly unfit’ for the crime.
The 59-year-old Halifax father, identified in court documents only as R.B.W., pleaded guilty to having sexual intercourse with his 23-year-old biological daughter between September 2018 and June 2019. Both he and the daughter are intellectually disabled.
The case only came to light in the summer of 2019, when the daughter gave birth to a baby with serious medical issues and developmental delays, and concerns from a medical geneticist led to police involvement, according to court filings.
At sentencing, Halifax provincial court Judge Ann Marie Simmons handed down the house arrest, also known as a conditional sentencing order, but Crown prosecutors appealed, arguing the sentence was too lenient and not legally available for the crime of incest.
Justice Anne S. Derrick led an appeals court majority in upholding the house arrest sentence for a father who impregnated his own daughter, citing race as one factor in offering leniency
Halifax is seen in a file photo. The 59-year-old father, identified in court documents only as R.B.W., pleaded guilty to having sexual intercourse with his 23-year-old biological daughter
Prosecutors had argued for a prison sentence of four to six years, based on sentences that had been handed out in similar situations.
However, the sentencing judge determined that those precedents were merely guidelines, and noted that R.B.W. was remorseful and unlikely to reoffend.
‘The court also noted that the offenders, in previous cases, were not African Nova Scotians,’ wrote Jamie Sarkonak in a column for the National Post.
‘When deciding whether offenders of such heritage should serve house arrest or jail, the court wrote that ‘a more nuanced approach’ was required. In short, a racial discount was to be applied,’ added Sarkonak.
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-sentencing reports that tell judges of the systemic racism and other disadvantages faced by offenders who are black or other racial minorities.
‘The moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism, as was done in this case,’ wrote the sentencing judge, in a ruling upheld by the majority of the appeals court.
‘Sentencing judges should take into account the impact that social and economic deprivation, historical disadvantage, diminished and non-existent opportunities and restricted options may have had on the offender’s moral responsibility.’
Appeals Judge Derrick quoted that passage approvingly in her August 23 opinion upholding the house arrest, and added her own analysis on the role systemic racism should play in sentencing decisions.
Justice Derrick (left) is seen at a swearing in ceremony in 2017. ‘The constrained circumstances of African Nova Scotian offenders may diminish moral culpability,’ she wrote in an opinion
On the three-judge appeals panel, Justice Joel E. Fichaud (left) concurred with Derrick but Justice David P.S. Farrar (right) dissented, saying he would send R.B.W. to jail
‘A causal link does not need to be established between the systemic and background factors and the commission of the offence before a sentencing judge can consider them,’ wrote Derrick.
‘The constrained circumstances of African Nova Scotian offenders may diminish moral culpability and the information in an IRCA can be used as ‘a foundation on which to build alternatives to incarceration for Black offenders and reduce the over-reliance on imprisonment.”
On the three-judge appeals panel, Justice Joel E. Fichaud concurred with Derrick.
However, Justice David P.S. Farrar dissented, writing that he believed house arrest was not a legally available option for the crime of incest, which carries a maximum penalty of 14 years in prison.
‘I am unable to exclude a penitentiary sentence. Incest is a very serious offence and R.B.W.’s moral culpability is high,’ Farrar wrote in his dissent, saying he would sentence R.B.W. to two years in prison.
‘The IRCA sets out those difficulties he has endured. However, there are occasions when the gravity of the offence requires a custodial sentence be served. This is one such case.’
