Jamie Sarkonak: House arrest for impregnating daughter a result of race-based sentencing

Nova Scotia’s lenient court system hurts the very communities it tries to protect

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In the summer of 2019, a baby was born in Nova Scotia with “serious medical complications and significant developmental delays.” Concerns by a medical geneticist led to police becoming involved. When the mother, 23, was discovered sexting her father during a visit to the neonatal intensive care unit, it all made sense.

The parents were a father-daughter pair with a 31-year age gap between them. Both were intellectually disabled. Their child, also disabled, has since been placed in foster care.

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The father was subsequently charged with the crime of incest. Shortly afterward, he confessed that he first slept with his daughter when she was 19 or 20.

Normally, incest would be punished with a jail sentence: two years on the low end, and 14 years maximum. Applying progressive sentencing principles, a majority of the Nova Scotia Court of Appeal decided late August that the father should only have to serve two years of house arrest (more reasonably, the dissenting judge believed that four years in jail was apt).

Incest is considered a serious crime for a number of reasons. Like murder, it’s sanctioned because it comes from a deep cultural taboo — in the west and pretty much everywhere else, too. The taboo likely emerged from the objective harm incest poses to society: incest causes genetic defects, and is often a result of one person’s exploitation of another. Offspring, regardless of age, cannot consent to sex with their parents.

At trial, the Crown had argued that the father should spend four to six years in jail, based on sentences that had been handed out in similar situations. It lost. On appeal, it argued the same. This was a severe crime, and it was made worse because the father violated his position of trust over his disabled daughter. Worse, he impregnated her, risking genetic harm to the child. (The Nova Scotia Public Prosecution Service told me Wednesday that it has not yet decided whether it’ll appeal once more to the Supreme Court of Canada.)

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The trial court, and a majority of the appeal court, didn’t buy the Crown’s argument. Why? Because the offender was remorseful and was determined unlikely to re-offend.

Another reason was that he is Black.

While the Crown established, using past cases, that a jail sentence of four to six years was normal for this kind of crime, the appeal court dismissed this as merely a guideline. The court also noted that the offenders, in previous cases, were not African Nova Scotians. 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.

“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 trial judge, with whom the majority of the appeal court agreed. “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.”

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As an African Nova Scotian, the father had been impacted by “historical deprivation, social and economic deprivation as well as diminished and virtually non-existent opportunities.” In sentencing, these broad factors didn’t have to be linked to his crime to be relevant — they just needed to be present.

The father’s upbringing was lined with abuse and parental dysfunction. His parents were alcoholics and his father was absent; the family was poor and moved around a lot; his schooling only went as far as Grade 4; he was sexually abused by at least three different people. His story is a harrowing one, and one that would be taken into consideration in sentencing no matter what his background. However, his tragic history carried particular significance due to his race.

All considered, the trial court and the majority of the appeal court agreed that the father’s circumstances (his “systemic and background experiences as an African Nova Scotian”) supported a sentence of two years under house arrest.

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If this act of incest was committed several years ago, house arrest wouldn’t have even been on the table. The Criminal Code once prohibited house arrest as a punishment for incest (and various other crimes) — a prohibition that was upheld by the Supreme Court of Canada as late as 2022.

But, two weeks after that prohibition was upheld in the top court, the Liberal government passed a set of criminal law reforms (Bill C-5) to put house arrest back as an option for incest. One policy reason for this change, quoted in the court decision, was to address overrepresentation of Black Canadians in the prison system.

Aside from these sentencing reforms to the Criminal Code, the practice of assessing an individual Black offender’s experiences of racism and trauma has been supported directly by the feds. Pioneered by Nova Scotia and Ontario, the feds earmarked $6.6 million in 2021 to expand the practice.

The uptake of race-based criminal procedure in Canada has been a concerning trend, and this is only the latest example. Race-based sentencing discounts began being used for Indigenous people in 1999 after a decision called R v. Gladue; this practice was expanded for Black offenders in Nova Scotia in 2019 and in Ontario in 2021. The Supreme Court of Canada has also said that Charter rights are also to be interpreted with a racial lens. In Ontario last year, the Ontario Court of Appeal ruled that the race of an accused person should be factored into the decision to allow a jury to know their criminal record.

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It’s hard to say how much the father’s community appreciates the court’s leniency, but what is clear from the court record is that he is not welcome. His crime put a rift between him and his seven other children, some of whom have barred him from seeing his grandchildren. His eighth child will be raised in foster care. He has been denounced within the broader African Nova Scotian community, and has consequently experienced social isolation.

The dissenting appeal judge, who also applied racial sentencing considerations but concluded that the father should serve jail time, pointed out that the crime had “a negative impact on the African Nova Scotian community.” There’s no doubt of that; incest harms the people at the heart of a small community the most. The theory behind lenient race-based sentencing is that it benefits a community, but in practice it deprives them of justice — while undermining the fairness of the system for everyone.