Nova Scotia Court of Appeal upholds house arrest for incest, father instead of prison because he is black: Had sex with mentally disabled daughter who gave birth to her seriously ill son

A Nova Scotia appeals court has upheld the house arrest sentence of a father who impregnated his own daughter, citing race as a factor in granting leniency to the perpetrator, who is black.

Judge Anne S. Derrick wrote the opinion The two-judge majority held that the sentencing judge’s sentence of two years minus one day of house arrest was “not manifestly unsuitable” for the crime.

The 59-year-old Halifax father, identified only as RBW in court documents, pleaded guilty to having sexual intercourse with his 23-year-old biological daughter between September 2018 and June 2019. Both he and the daughter are mentally disabled.

The case only came to light in the summer of 2019, when the daughter gave birth to a baby with serious medical problems and developmental delays and concerns from a medical geneticist led to police intervention, according to court documents.

At the sentencing, Halifax Provincial Court Judge Ann Marie Simmons imposed house arrest, also known as a conditional sentence. However, Crown prosecutors appealed, arguing the sentence was too lenient and legally unavailable for the crime of incest.

Judge Anne S. Derrick led an appeals court majority in upholding the house arrest sentence for a father who impregnated his own daughter, citing race as a factor in granting leniency

Halifax is seen in a file photo. The 59-year-old father, identified only as RBW in court documents, pleaded guilty to having sexual intercourse with his 23-year-old biological daughter

Prosecutors had called for a prison sentence of four to six years, based on sentences that had been imposed in similar situations.

However, the sentencing judge concluded that these precedents were merely guidelines and found that RBW was remorseful and unlikely to re-offend.

“The court also noted that the perpetrators in previous cases were not African Nova Scotians,” Jamie Sarkonak wrote in a column for the National Post.

“In deciding whether offenders with such a legacy should serve house arrest or prison, the court wrote that ‘a more nuanced approach’ was needed.” “In short, a racial discount should be given,” Sarkonak added.

The sentencing judge relied in part on a relatively new feature of the Canadian legal system known as Effects of racial and cultural assessments (IRCAs), which are pre-sentence reports that educate judges about the systemic racism and other disadvantages faced by offenders who are Black or from other racial minorities.

“The moral culpability of an African Nova Scotian offender must be assessed in the context of historical factors and systemic racism, as was done in this case,” the sentencing judge wrote in a ruling upheld by the majority of the Court of Appeal.

“Sentencing judges should consider the impact that social and economic disadvantage, historical disadvantage, reduced and non-existent opportunities and limited options may have had on the offender’s moral responsibility.”

Appeals Judge Derrick quoted this passage agreed in her August 23 statement confirming the house arrest and adding her own analysis of the role that systemic racism should play in sentencing decisions.

Judge Derrick (left) is seen at a swearing-in ceremony in 2017. “The limited circumstances of African Nova Scotian offenders may reduce moral culpability,” she wrote in a statement

On the three-judge appeals panel, Judge Joel E. Fichaud (left) agreed with Derrick, but Judge David P.S. Farrar (right) dissented and said he would send RBW to prison

“A causal connection need not be established between the systemic and background factors and the commission of the offense before a sentencing judge may consider it,” Derrick wrote.

“The limited circumstances of African Nova Scotian offenders can reduce moral culpability, and the information in an IRCA can be used as a basis for building alternatives to incarceration for Black offenders and reducing over-reliance on incarceration.”

On the three-judge appeals panel, Judge Joel E. Fichaud agreed with Derrick.

However, Judge David PS Farrar disagreed, writing that he believed house arrest was not a legally possible option for the crime of incest, which carries a maximum penalty of 14 years in prison.

“I cannot rule out a prison sentence.” “Incest is a very serious offense and RBW’s moral culpability is high,” Farrar wrote in his dissent, saying he would sentence RBW to two years in prison.

“The IRCA lays out the difficulties he endured. However, there are cases where the seriousness of the crime requires serving a prison sentence. This is one such case.’