Courts wrong place to deal with prison and parole racism, judge says Manitoba killer sentenced after consideration of systemic biases affecting Indigenous, Black offenders in Canada’s correctional system By: Dean Pritchard Posted: 7:00 PM CDT Thursday, Nov. 3, 2022

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Indigenous offenders face greater hurdles winning parole from prison than any other group, but that doesn’t mean the courts can fix the problem with more lenient sentences, a judge ruled this week.

“Any attempt to address systemic issues plaguing the Correctional Services of Canada and (National) Parole Board at the sentencing stage is fraught with difficulty, bound to fail and can perhaps create other serious problems,” Manitoba Court of King’s Bench Justice Ken Champagne said.

“A sentencing judge does not possess the information necessary to make meaningful decisions about systemic issues affecting these justice system stakeholders.”

Champagne’s comments were included in a written sentencing decision for Michael Fox, 33, who was found guilty of second-degree murder in the October 2019 stabbing death of 30-year-old Darcy Rose.

Champagne adjourned sentencing last spring for further submissions to address the issue of systemic racism within Correctional Service Canada and whether it was relevant in determining an appropriate period of parole ineligibility for Fox. A report by the federal auditor general last May found that Indigenous and Black offenders faced poorer outcomes in custody, less timely access to rehabilitative programming and greater barriers to earning early release on parole.

The report found that Indigenous and Black offenders tend to receive higher risk assessments, placing them in higher security classifications upon their admission into prison.

The minimum sentence for second-degree murder is life in prison with no chance of parole for at least 10 years.

Prosecutors recommended Fox serve 16 years in custody before being allowed to apply for parole. Prosecutors argued the court should give the auditor general’s report “little weight” and must instead focus on Fox’s personal circumstances and those of the murder in determining the appropriate period of parole ineligibility.

Fox’s lawyers urged Champagne not to increase his period of parole ineligibility, arguing he is likely to serve a longer period of time in prison before obtaining parole because he is Indigenous.

Fox’s lawyers urged Champagne not to increase his period of parole ineligibility, arguing he is likely to serve a longer period of time in prison before obtaining parole because he is Indigenous.

Systemic racism, as identified by the report, “is a serious problem and must be addressed,” but a sentencing judge is “poorly placed” to tackle those concerns, said Champagne, who set Fox’s period of parole ineligibility at 15 years.

“When sentencing an Indigenous offender, the judge must consider the unique systemic or background factors that may have played a part in bringing the individual before the court,” he said. “It is difficult, if not impossible, to know at the time of sentencing if the individual before the court will be subject to systemic issues that affect the serving of their sentence.”

The work of corrections and the parole board “is distinct and separate from the court,” Champagne said, noting there are administrative mechanisms in place to appeal their decisions.

“The Corrections Service of Canada and (National) Parole Board have rules, regulations, and policies that guide their decision-making,” he said. “There are many opportunities to review decisions made by (them) built into their administrative structure.”

“When sentencing an Indigenous offender, the judge must consider the unique systemic or background factors that may have played a part in bringing the individual before the court.”–Justice Ken Champagne

Court heard evidence at trial Fox was collecting drug debts in the Elmwood area when, during a dispute with another man, Rose aimed a sawed-off shotgun at him. Fox challenged Rose, who ran away. Fox caught up to Rose and stabbed him in the back.

Rose managed to stumble to a nearby apartment block where he collapsed in his sister’s arms and died.

Champagne rejected Fox’s claim he was acting in self-defence.

Court heard Fox has been entrenched in gang life since he was a teenager and has spent much of his adult life in custody.

dean.pritchard@freepress.mb.ca

Dean Pritchard
Courts reporter

Someone once said a journalist is just a reporter in a good suit. Dean Pritchard doesn’t own a good suit. But he knows a good lawsuit.

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