BENCHPRESS | Sentencing, Supervising and Schooling - LawNow Magazine

BENCHPRESS | Sentencing, Supervising and Schooling

Systemic Racism in Sentencing

R v Kandhai, 2020 ONSC 3580

Mr. Kandhai was charged with and pled guilty to one count of possession of a prohibited firearm with accessible ammunition and one count of a breach of a firearms prohibition order. At the sentencing hearing, the defence asked for 3 years while the Crown requested 4 to 5 years.

Justice Harris relied on a social history report that considered systemic racism. Social history reports, or enhanced pre-sentence reports, are relatively new and not widely used. They differ from conventional pre-sentence reports in that they “provide necessary and accurate information about the complex backgrounds of individuals and provide a clearer path to rehabilitation.”

In particular, the Court reviewed the report and considered the impact of:

  1. Kandhai having grown up in poverty in Flemingdon Park (a community in Toronto); and
  2. Kandhai’s exposure to anti-black racism from a young age.

The author of the report interviewed Mr. Kandhai four times as well as his parents and brother. The report highlighted Mr. Kandhai started hanging out with “negative peer influences” and was charged for the first time in 2010 after starting secondary school. He is now 25 years old and has a lengthy criminal record.

Justice Harris considered the link between Mr. Kandhai’s background and his moral blameworthiness. He summarized as follows: “Mr. Kandhai was not compelled to make the choices he did but his alternatives were circumscribed by his environment and the dearth of opportunities that were open to him” (at para 64). Justice Harris noted the over incarceration of African Canadians and drew careful analogies with the over incarceration of Indigenous individuals. He concluded:

Applying Mr. Kandhai antecedents to the contextual approach established in Ipeelee, one’s head would have to be in the sand not to acknowledge that Mr. Kandhai’s responsibility is affected in some measure by the racism and poverty in the community in which he grew up.

The decision? The Court found 4 years was appropriate.

Liability of Social Hosts

McCormick v. Plambeck, 2020 BCSC 881

In September 2012, seventeen-year-old Calder McCormick attended a party on Salt Spring Island in B.C. Twin sisters hosted the party at their home while their parents stayed in their room upstairs. The Facebook event page for the party asked guests not to drink and drive. The sisters’ parents had strict rules: car keys of anyone who drove would go into a bowl, the party would end at 1am, no alcohol would be provided though guests could drink if they brought their own, and guests would be picked up or be driven home by the parents. The parents circulated through the party approximately every hour.

At the end of the party, Ryan Plambeck drove up to the party in a car. The car belonged to the Couplands, who lived a short distance away from the party residence. Mr. Coupland had left the car unlocked with the keys inside so that a potential buyer could test drive it. Both Ryan and Calder had been at the party. The judge did not rely on Calder’s evidence about how he came to be in the car. There was also conflicting evidence about whether Ryan was intoxicated or impaired by marijuana. The judge concluded Ryan was not intoxicated when he left the party residence. In any case, the car crashed. Ryan was killed and Calder was seriously injured. Calder is now 25 years old and lives with the side effects of a serious brain injury.

The Court had to decide whether the sisters’ parents, the Pearsons, were liable (along with Ryan) for Calder’s injuries. The law is clear that commercial hosts owe a duty of care to patrons and sometimes the public. In the cases of social hosts, the court must decide whether the hosts owed a duty of care to the guests – was the accident reasonably foreseeable such that the hosts should have protected guests from it?

The decision? The Court found that, if the Pearsons owed a duty of care to Calder, they had met the required standard of care through their rules for and actions at the party. It was not reasonably foreseeable that a guest would steal a car and get into a car crash after the party. Therefore, the Pearsons had not beached their duty of care and ‘caused’ Calder’s injuries. They were not liable for the money damages he was claiming.

French Schools in B.C.

Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2020 SCC 13

Section 23 of the Charter sets out minority language educational rights. French speakers in any province where French is the minority language are entitled to French language primary and secondary education. The same is true where English is the minority language. This right applies where there are sufficient number of children to warrant the education be funded by the government, including separate minority language schools (again, where numbers warrant).

In 1990, the Supreme Court of Canada addressed s. 23 rights in Mahé v Alberta. On June 12th, the Court released a follow-up decision that clarified the test for situating students on a ‘sliding scale’. This sliding scale determines the level of services that an official language minority is entitled to, be it homogeneous schools, sharing facilities with the majority or another appropriate solution.

In Mahé, the Court outlined two factors but didn’t define them. In this recent decision, the Court clarified the test and broke it into three steps:

  1. Determine how many students will eventually use the service, based on long-term projections not just short-term demand.
  2. Compare whether the school contemplated by the minority is appropriate based on pedagogy and cost. To do so, compare the number of students from the official language minority to the number of students in the majority language schools. If the numbers are comparable, then the number of minority language students is at the high end of the sliding scale and the minority is entitled to a homogeneous school. Local, regional or province-wide comparisons may be reasonable. The province can rebut a presumption of homogeneous schools by showing the comparators used are not appropriate or that the proposed school is not appropriate based on pedagogy or cost.
  3. Determine the level of services to provide to the official language minority. If the second step shows the number of students is comparable and the province does not rebut the presumption, then a homogeneous school is appropriate. If the number of minority language students falls in the middle or at the low end of the sliding scale, then the level of services might be a few hours of language instruction in a school shared with the majority.

Because this is a Charter challenge, s. 1 also comes into play to see if the breach is justified. Damages can be awarded against governments where government policies infringe fundamental rights.

The decision? The Court ordered damages of $7 million and made a series of declarations for more French-language schools in B.C.


Jessica Steingard
Jessica Steingard
Jessica Steingard, BCom, JD, is a staff lawyer at the Centre for Public Legal Education Alberta.

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