Fair treatment of African Nova Scotians at the centre of new prosecution policy

HALIFAX — Nova Scotia Crown prosecutors were handed new tools Thursday to root out systemic anti-Black racism long embedded within the province’s justice system.

After years of study, the province’s Public Prosecution Service unveiled a comprehensive policy that will guide Crown attorneys through criminal proceedings involving African Nova Scotians and people of African descent.

Rick Woodburn, acting director of public prosecutions, says the policy was developed in response to the long-standing overrepresentation of Black people in the criminal justice system.

“This (policy) ensures that as we move through the prosecution, from start to finish, that we have to recognize that fact and the history of colonialism …. And when we take the background of the offender into account … you’ll see that, in the end, there’ll be a more equitable and just result,” he said in an interview.

The policy acknowledges the long history of slavery in Canada, dating back to 1713, its abolition in 1833, and ongoing racist policies and practices that have resulted in significant social and economic disadvantages for African Nova Scotians.

Nova Scotia’s Public Prosecution Service (PPS) was established in 1990 in response to the provincial public inquiry into the 1971 wrongful conviction of Donald Marshall Jr., a Mi’kmaw who spent 11 years in prison for a murder he did not commit. 

The inquiry concluded that Nova Scotia’s criminal justice system “failed at virtually every turn” as police, judges, lawyers and bureaucrats were plagued by racism and incompetence.

In October of 2018, the Public Prosecution Service introduced a comprehensive policy to ensure the fair treatment of Indigenous people during prosecutions. 

In July of last year, however, the African Nova Scotian Justice Initiative released an open letter saying it had serious concerns about systemic racism within the Public Prosecution Service. Woodburn said the latest policy represents “a good first step” toward addressing those concerns.

“What we’re doing is … showing the community that we actively understand that there is systemic racism within the PPS and that we’re actively doing something to combat it,” he said.

Robert Wright, executive director of the African Nova Scotian Justice Institute, said the policy looks good — on the surface. But he said it falls short in some areas because the instructions for Crowns are often optional.

“There could be more, ‘a prosecutor must,’ rather than ‘a prosecutor is strongly advised or encouraged,'” Wright said in an interview Thursday.

While the intentions are good, it will be the actions of prosecutors that matter, he said, adding that it will be up to Woodburn and his successors to ensure the policy is followed.

On another front, Wright said the policy says nothing about hiring practices within the Public Prosecution Service. The fact there has never been a Black or Indigenous person as a senior Crown, he said, is a sign of racism in hiring practices.

Last month, the province announced the hiring of 19 new Crown attorneys, and Woodburn said four of the positions are reserved for “diverse individuals.”

“We want the PPS to reflect the community that we’re working in,” he said.

Meanwhile, Wright said the PPS is still refusing to release an independent audit of its human resource practices.

“We have yet to hear the true story of the nature and the depth of the systemic racism that exists in the PPS,” he said. “Sunlight is the best antiseptic. The PPS is still hiding their dirt.”

Among other things, the 16-page policy says that when an accused person is identified as African Nova Scotian or a person of African descent, the Crown must ensure police disclosure of evidence is not tainted by racism and discrimination.

As well, it cites the diversion of criminal cases to the province’s restorative justice program, which could reduce the number of Black people in custody.

The restorative justice program focuses on rehabilitation of offenders through reconciliation with victims and the community at large, often with the assistance of facilitators in a group setting. Typically, plans are made to have the offender address the harms caused, and if they successfully complete the program, charges are usually dismissed.

“When a person is put before a court, it can damage that person in such a way that they just continue on that criminal cycle,” Woodburn said. “If we can start early on removing individuals from the system, and finding a community solution for each one of those individuals, we’ll see the overrepresentation slowly go down.”

The new policy also provides guidance on the use of Impact of Race and Culture Assessments, which are reports to the court that describe the accused’s cultural background and that can play a role in such decisions as bail and sentencing. And the policy reminds Crown attorneys about challenging potential jurors at the selection stage for racial bias.

In cases involving racial discrimination, the policy says Crown attorneys should consult with the chief Crown and colleagues on the service’s equity and diversity committee. 

This report by The Canadian Press was first published Feb. 29, 2024.

Michael MacDonald, The Canadian Press