There is a conventional notion that justice should be blind. But Canada’s Constitution says the opposite: it should not be blind, and it should not be colour blind. Canadians are exceptionally proud of the Canadian Charter of Rights and Freedoms; it is considered a national symbol. But too few of us realize that section 27 of the Charter states: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”

What are the implications for this constitutional call for a colour-bold interpretation of the Charter? Given the racial disparities within Canada’s criminal justice system, it means policy professionals are expected and required to apply an interpretation of the rights of Canadians that protects and promotes the cultural traditions of Canada’s diverse populations.

It requires a new kind of policy approach, one that takes into account the overrepresentation of African Canadians in the criminal justice system. It requires an approach that is consistent with the African heritage of Canada’s Black populations. Enter Sankofa, as a restorative principle of justice policy-making concerning Black Canadians.

What is Sankofa?

Sankofa is a principle derived from the Akan people of Ghana. It translates as “To reach back  and get it.” The principle of Sankofa is expressed visually as a mythical bird looking backward, holding an egg in its mouth. The bird represents society progressing toward a positive future by being guided by its past. The egg represents the nurturing of new generations that will benefit from and be protected by an advance shaped by lessons from history.

Recognizing Sankofa as a policy framework through which Canada’s criminal justice agents and institutions can plan and execute policies, practices and service delivery creates possibilities for meaningfully remedying long-standing disparities impacting Canada’s Black populations. Sankofa offers a culturally responsive policy approach that is a restorative alternative to the dominant colour-blind approach to justice policy-making in Canada. Decades of data demonstrate that the colour-blind approach to justice policy has not significantly reduced disadvantageous disparities experienced by Black Canadians at all junctures of the justice system, from policing to prisons.

Applying Sankofa within Canada’s criminal justice system

Sankofa is a principle of restorative justice decision-making meant to remedy historic and persistent systemic disparities faced by Black Canadians. As such, it should be understood as an African-inspired principle of policy equity. In other words, Sankofa recognizes that while we are all equal, we are not all the same. It therefore calls on actors within the justice system to treat people differently to arrive at substantively equal outcomes. The focus, then, is on achieving equitable results in areas such as street checks or carding, pre- and post-charge diversion, charges, bail conditions, convictions, incarceration rates and recidivism.

In questions of charges being laid or judicial sentencing, the Africentric principle of justice asks police, Crown prosecutors and judges who have an African Canadian suspect, accused or convicted individual before them to apply a Sankofa analysis. The focus is on conducting a careful assessment of the degree(s) to which socio-systemic expressions of anti-Black racism have affected the life chances and choices of the person. Specifically trained social service professionals should be engaged to conduct these assessments to support these justice professionals.

This can be done through the formalized adoption, application and analysis of Sankofa questions, which cover a range of criminal justice circumstances.

For instance, a general Sankofa question is: “At what point(s) in this person’s life were there major decisions made or systemic disparities operating that affected the person’s life because of negative/discriminatory treatment, ideas, stereotypes, prejudice, attitudes, beliefs, values about Black people and/or this individual as a Black person?”

For African Canadians who have become involved in the criminal justice system, Sankofa questions could include:

  • Did the individual live in or was he or she arrested in a highly policed community?
  • Was he or she streamed in school toward less academically rigorous programs?
  • Was he or she ever suspended or expelled from school, or did he or she ultimately decide to drop out?
  • Has the individual or any of his or her primary caregivers experienced serious mental health challenges?
  • Did he or she experience child poverty or come from a family reliant on social assistance?
  • Was he or she ever a Crown ward within the child welfare system?
  • Did the individual grow up in or does he or she still live in a low-income household?
  • Does the individual have an incarcerated or absentee parent?
  • Did the individual or his or her family arrive in Canada as refugees or through some form of forced displacement?

These questions show how Sankofa can be applied in a restorative manner. The aim is criminal accountability with cultural considerations for fairness that help to enhance trust in the criminal justice system and the actors within it.

Sankofa seeks to rebalance a traditional overemphasis on a decontextualized analysis and assessment of individuals that is too removed from their social context. Instead, it urges actors within the justice system to be comprehensive in deliberately considering and accounting for any socio-systemic factors that have exposed the individual to conditions that create a climate where crime can thrive.

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Sankofa, Canadian courts and institutional precedents

Ultimately, the adoption of a policy and practice of asking these Sankofa assessment questions and conducting a thorough assessment could empower a judge to craft orders and sentences that are fairer and fit the accused’s circumstances.

For instance, instead of automatically or reflexively ordering jail time, judges could use Sankofa assessments to recognize that a more just option for an African Canadian accused could be to help facilitate greater access to social and economic well-being supports that the individual and his or her community have been deprived of. These supports could include programs that

  • enhance job readiness and employability skills;
  • secure enrolment in trades programs;
  • facilitate higher education attainment;
  • increase access to counselling for mental health and addictions; or
  • teach parenting and financial literacy skills.

This approach to increasing culturally responsive sentencing for African Canadians has been on the rise in the last few years. Recent court decisions such as R. v. “X”, R. v. Reid, R. v. Jackson and R. v. Morris have all endorsed this approach for the purpose of recognizing the impact of systemic anti-Black racism in Canada and reducing the overrepresentation of African Canadians in Canada’s criminal justice system.

These cases do not use the specific language or full logic of Sankofa, but the principle, purpose and impact are consistent with it. Sankofa pushes the analysis further to provide what these court cases have missed: namely, the enunciation of a framework of justice policy and judicial decision-making that uses Africentric principles to interpret the rights of African Canadians in a way that preserves and enhances the multicultural heritage of Canadians as prescribed by the Charter.

Furthermore, while these court decisions support the use of culturally reflective decision-making within the criminal justice system, this approach has not yet been elevated to the realm of public policy so as to ensure consistency and accessibility for all African Canadians. Sankofa would enhance the approach and help to reach culturally reflective justice outcomes for Canada’s Black population.

Legal and policy practices grounded in Sankofa are not entirely new to Canada. The Nova Scotia Home for Colored Children Restorative Inquiry recently used Sankofa with promising results in the child welfare context. But Sankofa should extend to the criminal justice system.

Addressing the legacy of slavery and its afterlife

Canada has a centuries-long record of systemic anti-Black racism, as I’ve argued in contributions to Policy Options and other outlets. That legacy continues to manifest today. The overrepresentation of African Canadians within the criminal justice system is inextricably linked to Canada’s more than 200 years of history of enslaving Africans.

Slavery facilitated the embedding within Canadians’ collective social consciousness of negative stereotypes and prejudices toward Black people in Canada. This embedding impacts the way policing and the criminal justice system interact with Canada’s Black populations today. In other words, slavery’s afterlife reverberates into the present.

The principle of Sankofa has the potential to help Canada undo the legacy of slavery so future generations can enjoy a more equitable and racially just Canada that lives up to the highest ideals of its Constitution.

Photo: Shutterstock byTata Donets

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Anthony N. Morgan

Anthony N. Morgan is a Toronto-based human-rights lawyer, policy consultant and community educator.

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