IEEE Technology and Society Magazine - September 2022 - 52

Technological Stewardship and Responsible Innovation
purely mathematical calculation: each crime is committed
in unique circumstances by an offender with
a unique profile and these considerations heard by
the judge of the first instance cannot be disregarded
[20, ¶ 58].
At sentencing, Canadian Courts benefit from
lengthy reports prepared by specialists that outline
individual and systemic factors impacting the individual
before the Court. A presentence report, codified
in s. 721 of the Criminal Code, is prepared by
probation services and is intended to provide a thorough
character sketch of the individual accused person.
This qualitative data is collected via interviews
with the offender and their ancillaries for the Court's
consideration. The Gladue report is similar but
expands to include an intergenerational account of
the Aboriginal person's history, the impact of colonization
on their family and land, and the trauma experienced
by the individual. Finally, and most recently,
courts have adopted race and culture assessment for
sentencing Black Canadians [25], [26]. The latter
two types of reports provide the courts with insights
into both individual and systemic factors.
The Supreme Court of Canada has also directed
that judicial notice must be taken off the common
legacies of colonization and intergenerational trauma
shared among Canadian Aboriginal communities
[17]. In R v. Sharma [18], the Ontario Court of Appeal,
citing Ewert, identifies how time and again, the
Supreme Court has linked colonialism, racism, and
discrimination against Aboriginal people, and their
circumstances of poverty, their overrepresentation
in the criminal justice system and the discrimination
experienced in the prison system [18, ¶ 97].
Canada's colonial history and its negative impact
specifically on Aboriginal people have long been
identified by scholars and policymakers as a pervasive
factor in the criminal justice system. In attempts
to recognize its deleterious influence on the justice
system at sentencing, parliament codified s. 718.2(e)
of the Criminal Code in 1996, expanding the statute
to provide direction to courts to exercise restraint
when imposing custodial sentences, with specific
regard to Aboriginal offenders. In practice, the recognition
of the impact of this statutory provision
required much more girth. The Supreme Court in
Gladue in 1999 provided the impetus for the application
of this sentencing provision. In the 2019 case of
R v. Barton [27], the Supreme Court took note of the
" detrimental effects of widespread racism against
52
indigenous people within our criminal justice system "
[27, ¶ 199]. In R v. Williams, the Supreme Court
recognized that " Indigenous people are the target of
hurtful biases, stereotypes, and assumptions including
stereotypes about credibility, worthiness, and
criminal propensity " [32, ¶ 28].
Sentencing is not the only stage of criminal procedure
impacted by systemic racism. Systemic racism
in communities, policing, and decision-making at bail
are factors that contribute to the overrepresentation
of people who are Black, Aboriginal, and persons
of color in the criminal justice system. Parliament
has specifically directed our courts to be mindful
of systemic factors through the codification of their
directions, and cases like Ipeelee and Barton from
the Supreme Court compel our courts to take judicial
notice of the impact of the overrepresentation of Aboriginal
people in our justice system [17], [27].
This analysis has also expanded to other minority
groups in Canada. In R v. Le, the Supreme Court
addressed " carding " and arbitrary detention practices
by the police in low-income neighborhoods,
often populated by members of racial minorities,
communities that typically have more negative interactions
and interventions by the police than their
wealthier counterparts. The Court stated
clearly
that the police must follow Charter standards in all
neighborhoods, no matter their racial background
or income [28]. In R v. Golden, the Supreme Court
notes that, like Aboriginal people, Black Canadians
are overrepresented in the criminal justice system
[27, p. 108], [29, ¶ 83]. In Morris, the Court of Appeal
for Ontario opened their decision with these powerful
words:
" It is beyond a doubt that anti-Black racism,
including both overt and systemic anti-Black
racism has been, and continues to be a reality in
Canadian society [...]. That reality is reflected in
many social institutions, most notably the criminal
justice system. It is equally clear that anti-Black
racism can have a profound and insidious impact
on those who must endure it on a daily basis "
[26, ¶ 1].
There is limited evidence to indicate that Black
Canadians are more involved in criminal acts than
white Canadians. However, Black Canadians and
their neighborhoods are routinely over-policed and
over-surveilled [28]. The John Howard Society of
Canada reported that after analyzing 10,000 arrests
IEEE Technology and Society Magazine
IEEE Technology and Society Magazine - September 2022

Table of Contents for the Digital Edition of IEEE Technology and Society Magazine - September 2022
