An assessment that allows a judge to better understand the reality and background of a black defendant before sentencing is gaining popularity in Ontario, to the point of overwhelming the only organization producing this type of assessment, the Sentencing and Parole Project ( PPS). However, the offer of assessments is currently mainly limited to English, a situation that could change in the coming years.
Ethnic and Cultural Incidence Assessments (EIOECs)—reports still little used outside of Ontario and Nova Scotia—“explain the connection between the offender’s past experiences with racism and how they contributed to his situation and the offense committed,” the Department of Justice explains on its website. The department gave the reports its blessing in August 2021 with a budget of $6.64 million over five years.
Nova Scotia is the first province to begin preparing for this type of assessment. In 2014, social worker Robert Wright wrote one of the first assessments in a juvenile offender’s file. Judge Anne Derrick then agreed to consider the assessment in sentencing. Seven years later, the province’s Court of Appeal upheld its use, going so far as to say that failure to use it could represent a “miscarriage of justice”.
Ontario lawyers have taken inspiration from their Nova Scotian colleagues and presented similar reports to EIOECs in court on a few occasions since 2017. In October 2021, the Ontario Court of Appeal finally ruled on the subject. The province’s highest court has acknowledged that EIOECs are “invaluable” to judges when determining sentencing and said it wants the reports “to be properly funded.”
However, this last aspect is lacking in Ontario, which partly explains why few services are offered in French, according to stakeholders interviewed by The duty. Emily Lam, a Toronto lawyer and co-founder of the SPP, says the organization has only one part-time employee who can write reports in French. The organization is able to meet the demand for services in French for the time being, but the increasing influx of requests in this language would nevertheless represent a challenge.
A popular service
Since its inception in the spring of 2020, the PPS has written nearly 100 assessments for black offenders marginalized by poverty and racial inequity. Chloe Boubalos, a lawyer at the Toronto firm Daniel Brown Law, says the PPS is “inundated with requests” in English right now.
Reports cannot be made to the press, explains the co-founder of the SPP, who does not want to exhaust her social workers. The reports, written in three to five months, require interviews with members of the offender’s family to understand the latter’s past and require an analysis of medical or youth protection records, for example. Danardo Jones, a law professor at the University of Windsor, says the report is written objectively, for the court and not for the offender.
The Department of Justice does not directly fund the writing of reports to the PPS. Instead, he does it with Legal Aid Ontario (LAO), which then reimburses lawyers whose clients require an assessment of the PPS. To date, LAO has funded 26 reports in the 2022-2023 budget year. According to a spokesperson for the organization, demand for the reports has increased since the Ontario Court of Appeal’s decision in October 2021 recognizing their necessity and value.
A ministry spokesperson says the funding agreement with LAO “contains provisions to ensure that eligible French-speaking clients can obtain an EIOEC in their native language.” LAO explains that it complies with the provisions since the PPS “provides services and prepares reports in French”. Emily Lam believes that a French report can be completed by the PPS in the same time frame as an English report.
Help to come?
The SPP could get reinforcements over the next few years. The duty learned that French-speaking EIOEC drafters could be trained from next year by the Federation of Associations of French-Speaking Common Law Jurists (FAJEF). The Department of Justice provided $307,475 to FAJEF over a two-year period for the preparation of French training tools.
According to Rénald Rémillard, the director general of the FAJEF, six or seven psychologists or social workers will learn to write these voluminous reports, especially from the expertise of Nova Scotia. These people will then be able to return to their respective provinces to prepare reports and train more writers. A similar number of criminal lawyers will learn more about the reports so that they can educate their colleagues later.
At the end of the line, Rénald Rémillard, a lawyer by training, affirms that he does not know any writer of reports in French in the country. The Executive Director of the FAJEF notes that the French-speaking population is diversifying in Canada and that it is important to work on the EIOEC file. Edith Pérusse McCallum, executive director of the Association des juristes d’expression française de l’Ontario, says it’s too early to “comment on the effectiveness of these reports.”
More funding requested
There are currently no federal standards for report writing, but the Department of Justice is funding the development of a national training guide, which a team in Nova Scotia is working on. Among other things, the guide will outline the skills needed for evaluators and the quality sought in reports, according to Brandon Rolle, a lawyer at the African Nova Scotian Justice Institute. The provinces will still enjoy a certain leeway in the implementation of the EIOECs, assures the federal government.
Professor Danardo Jones would like the provincial government to make these reports more available. “The Court of Appeal said that these reports had their place,” he recalls.
Me Joshua Sealy-Harrington, counsel at Juristes Power, says lack of access to reports in French is part of a problem wider lack of access to justice services related to criminal sanctions across Ontario. “Should French-speaking defendants have access to these reports? Obviously. But it is not a budgetary priority, ”he laments.
This story is supported by the Local Journalism Initiative, funded by the Government of Canada.