On August 13, 2021, David Lametti — Minister of Justice and Attorney General of Canada — announced the investment of $6.64 million in expanding the accessibility of Impact of Race and Culture Assessments (IRCAs) in Canada, beginning on April 1, 2021. Between 2021 and 2024, the federal government increased the funding for legal aid programs from $6.64 million to $16 million. The Quebec government has declined the use of this federal funding from Ottawa, which is designated to target systemic racism in the criminal justice system.
These funds would be allocated towards provincial and territorial legal aid clinics, civil rights organizations that produce IRCAs, and national training efforts and awareness campaigns.
Marie-Hélène Mercier, a representative for the Quebec Justice Department, elucidates Quebec’s reasoning, that the government is ” not party to any funding agreement involving impact of Race and Culture Assessments, as Quebec doesn’t subscribe to the approach on which the funding program is based, namely systemic racism.”
Dr. Marie Manikis, an associate professor and William Dawson Scholar at the McGill Faculty of Law, clarifies to the Daily: “The Quebec government does not recognize that there is such a reality of systemic racism and therefore does not think this consideration should have a role in sentencing,” despite the fact that, “several studies, particularly in the context of criminalization have made clear that this phenomenon exists and contributes to substantive inequalities.”
According to findings published by the Canadian Centre for Justice and Community Safety (CCJCS), Black people were found 24 per cent more likely to serve time in jail after arrest or sentencing between 2005–2016. Additionally, a CCJCS study from the same time period shows that Black Canadians are 36 per cent more likely than white Canadians to be sentenced to 2 years or more. A 2021 Statistics Canada report shows that Black people are nearly six times more likely to be accused of homicide. Despite the utility of such statistics, cohesive racialized data regarding alleged offenders of the criminal justice system is limited and underreported.
As of now, Quebec residents must pay out of pocket for IRCAs.
IRCAs have been used in Canada for over ten years to address the overrepresentation of Black people in the criminal justice system by assessing how the accused’s experience with systemic racism has influenced their current circumstances. In an interview with CBC, Michael Tshimanga, a board member of the Viola Desmond Justice Institute, a pro-bono group which fights against anti-Black racism in Montreal’s criminal justice system, described IRCAs as “a clinical forensic assessment done by a masters level mental health clinician.” He elaborated on the factors considered by IRCAs: physical disability, history of systemic racism and anti-Black racism within the particular region the IRCA is conducted, education family history, and a collateral interview with acquaintances of the accused – such as former employers, family members, and community members.
According to Dr. Jeffrey Kennedy, an Assistant Professor in the McGill Faculty of Law, in an interview with the Daily, “As a general point, we might note that having more and better information makes for better decisions. This is also true for sentencing, which involves complex moral and practical assessments about complex people and situations.”
Dr. Kennedy also referenced a statement made by Justice Campbell in the 2017 R. v. Gabriel case, where the IRCA was used to contextualize the crime through the lens of cultural and racial factors: “Sentencing judges struggle to understand the context of the crime and person being sentenced. To do that, judges rely on [their] own common sense and understanding of human nature. Sometimes that isn’t enough. Our common sense and our understanding of human nature are products of our own background[s] and experiences. An individual judge’s common sense and understanding of human nature may offer little insight into the actions of a young African Nova Scotian male. [IRCAs] serves as a reminder of the fallibility of some assumptions based on an entirely different life experience.”
“The state’s failure in various institutional aspects of life to provide equal opportunities and the reality of discrimination give rise to various phenomena documented in research, including more limited potential for choices, greater incentives for offending in certain contexts, and reduced stakes [to comply] with the law — all these dimensions are relevant to the level of blameworthiness of an offender, which sentencing law recognizes as an important consideration,” states Dr. Manikis.
Dr. Manikis continues, “For these reasons, taking into account the person’s social context, which includes their background and discrimination results in a sentence that is more tailored to the person’s degree of responsibility for the offence…and their motivaions for offending, which can play an important role [in] eventual crime reduction/ or social safety.”
“Importantly, the relevance of IRCAs is not limited to decisions about more or less punishment. IRCAs might also help judges choose strategies that may more effectively address the issues underpinning criminalized behaviour,” stresses Dr. Kennedy. “For example, in the [2021] case of Anderson” — regarding the use of IRCAs in sentencing Rakeem Rayshon Anderson, an African Nova Scotian, for being found with a loaded gun at random motor vehicle checkpoint — “the kind of information provided helped choose between two different kinds of programming, one of which was thought to be more effective for the person being sentenced. In this way, IRCAs hold the potential to help achieve practical aims like reducing crime,” he stated to the Daily.
“The state has an important role to reduce its criminogenic role and therefore any response or sentence needs to also provide adequate resources that address the substantive inequalities that often [are] the root cause of offending,” added Dr. Manikis.
Kwame Bonsu, a representative for the Federal Justice Department, told CBC that, “Canada remains ready to work with Quebec and other interested provinces and territories to support the implementation of IRCAs in their respective jurisdictions.”
Ultimately, provinces and territories decide how and if these funds are used. Currently, the provinces and territories without such funding include Prince Edward Island, where the representative for the justice minister says they are considering it; Saskatchewan, where progress is challenged by a lack of professionals, though discussions with the federal government are being facilitated; Alberta, where an agreement made in December of 2024 has been suspended; Nunavut, which cannot respond for the present moment; and the Northwest Territories, which are ready for the legal aid office to reach out.
As Dr. Kennedy stated to the Daily, “Having a bit of humility means acknowledging the limits of one’s own understanding and allowing others to help provide information and perspectives that begin to bridge the gaps. This applies to sentencing judges too, and IRCAs help with that.”