A judge will consider a cultural assessment of Kale Leonard Gabriel prior to sentencing.
A Nova Scotia Supreme Court judge has held off sentencing a convicted murderer to allow his defence time to prepare a report on how race played a role in the crime he committed.
In May, Kale Leonard Gabriel, 27, was found guilty of second degree murder for fatally shooting 21-year-old Ryan White outside a Halifax housing project in July 2010.
The two men, both black, knew each other, according to evidence heard at trial. The Crown said Gabriel shot White dead at the Mulgrave Park housing complex because of long-standing beef; Gabriel, who testified in his own defence, said he was fearful for his life, and that he and White struggled with the gun before it went off, shooting White in the chest. He denied pulling the trigger.
At a sentencing hearing this week, Gabriel's defence said a "cultural assessment" would examine how his race and background factored into the murder.
"We do hope it will address the appropriate rehabilitation for him," his attorney Geoffrey Newton told The Canadian Press, while Brandon Rolle with Nova Scotia Legal Aid said he believes race is noteworthy in this case.
Neither Newton nor Rolle responded to interview requests from VICE.
But what does race have to do with a murder sentence?
Cultural assessments provide sentencing judges with a racial context, looking at how things like culture, socioeconomic status, and family could have contributed to an offender's path to committing a crime.
According to Halifax social worker Robert Wright, who wrote a cultural assessment for a 16-year-old black Nova Scotian boy convicted of attempted murder in 2014, when it comes to sentencing that kind of information can be just as relevant as things like the state of someone's mental health. However, the courts rarely hear about any of it.
"The only reason why cultural assessments are necessary is because pre-sentencing and other psychological assessments that might be in front of the court are often completely absent of any kind of racial, cultural, immigrant status," Wright told VICE.
Far more common are Gladue reports, which provide similar insights for Aboriginal offenders.
In the attempted murder case for which Wright submitted a cultural assessment, he said the young offender came from a community where drugs and guns were more readily accessible and the offender and victim were related.
"It's very complex, but basically the literature on black on black violence explains [it] as the kind of violence that comes from the violation of interpersonal relationships," he said, noting it's less "pathological" for a black person to commit a violent act against someone they know who disrespected them than against a stranger. On the flip side, he explained that, with white people, it would be less pathological to victimize a stranger—e.g. a clerk at a store being robbed—than a friend or family member.
"There are issues like that that need an explanation before the courts in order for the courts to understand the nature of the violence," he said.
The judge overseeing the minor's case said the cultural assessment helped her see him through a different lens; though the Crown and other reports submitted to her recommended giving him the adult sentence of life in prison, she decided to sentence him to the youth maximum of three years.
Going forward, Wright explained that he thinks cultural assessments will become more common because of the growing recognition that black and Aboriginal offenders are victims of systemic racism within the criminal justice system.
A 2014 report by the Office of the Correctional Investigator found black and Aboriginal inmates are overrepresented in jails, receive harsher sentences, and tend to have access to fewer resources and programs on the inside.
If you sentence a white guy to ten years in jail, "qualitatively, that will be very different than the ten years a black guy or an Aboriginal guy will spend," said Wright.
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