An appeals court in Novia Scotia has ruled against house arrest for a father who impregnated his own daughter, citing race as a factor in offering leniency to the perpetrator, who is black.
Justice Anne S. Derrick wrote the opinion the majority of two judges ruled that the sentence of house arrest of two years minus one day was ‘not manifestly unsuitable’ for the crime.
The 59-year-old Halifax father, identified in court documents only as RBW, pleaded guilty to sexual intercourse with his 23-year-old 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 daughter gave birth to a baby with serious medical problems and developmental delays. According to the court, the concerns of a medical geneticist led to the involvement of the police..
At sentencing, Halifax Provincial Court Judge Ann Marie Simmons handed down house arrest, also known as a suspended sentence, but prosecutors appealed, arguing the sentence was too lenient and not legally available for the crime incest.
Judge Anne S. Derrick led an appellate court majority in upholding the home detention sentence for a father who impregnated his own daughter, citing race as a factor in offering leniency
Halifax is seen in a file photo. The 59-year-old father, identified in court documents only as RBW, pleaded guilty to sexual intercourse with his 23-year-old biological daughter
Prosecutors had argued for a prison sentence of four to six years, based on sentences handed down in similar situations.
However, the judge determined that these precedents were only guidelines, noting that RBW was remorseful and unlikely to reoffend.
“The court also noted that the perpetrators in previous cases were not African Nova Scotians,” Jamie Sarkonak wrote in a column for the National Post.
‘When deciding whether violators of such heritage should receive house arrest or prison time, the court wrote that ‘a more nuanced approach’ was necessary. In short, a racial discount had to be applied,” Sarkonak added.
The 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 about the systemic racism and other disadvantages faced by offenders who are Black or other racial minorities.
“The moral culpability of an African perpetrator from Nova Scotia must be assessed in the context of historical factors and systemic racism, as occurred in this case,” the judge wrote, in a ruling upheld by the majority of the court of appeal .
‘When imposing sentences, judges must take into account the impact that social and economic deprivation, historical disadvantage, reduced and non-existent opportunities and limited options may have had on the moral responsibility of the offender.’
Appellate Judge Derrick quoted that passage approvingly in her August 23 opinion upholding the house arrest, and added her own analysis on the role that systemic racism should play in sentencing.
Judge Derrick (left) is seen during a swearing-in ceremony in 2017. “The limited circumstances of African Nova Scotian offenders may reduce moral culpability,” she wrote in an op-ed
On the three-judge appeals panel, Judge Joel E. Fichaud (left) agreed with Derrick, but Judge David PS Farrar (right) disagreed and said he would send RBW to prison
“There is no need to establish a causal link between the systemic and background factors and the commission of the offense before a judge can consider them,” 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 foundation upon which alternatives to incarceration for Black offenders can be built and the over-reliance on incarceration can be reduced.”
As for the three-judge appeals panel, Judge Joel E. Fichaud agreed with Derrick.
However, Judge David PS Farrar disagreed, writing that he believed home detention was not a legally available 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 crime and RBW’s moral culpability is high,” Farrar wrote in his dissent, saying he would sentence RBW to two years in prison.
“The IRCA details the hardships he endured. However, there are cases where the seriousness of the crime requires serving a custodial sentence. This is such a case.’