Rationalization #22, in my view the worst of the over 100 rationalizations on the list, is called “The Comparative Virtue Excuse,” or “It’s not the worst thing.” I immediately thought of it when I read the head-exploding account of how a father escaped jail time in Canada for incest that resulted in the birth of a disabled child who has been placed in foster care. The father admitted that he had regularly had sexual relations with his daughter since she was 19 or 20. Incest is typically punishable with a jail sentence of at least two years and as high as 14 years, but a majority of the Nova Scotia Court of Appeal decided last month that the father shouldn’t have to spend any time in jail at all, just two years of house arrest, with a monitor. That’s nice. He can even continue his loving relationship with his daughter under those rules.
The trial court, and a majority of the appeal court, rejected the Crown’s argument that jail time was appropriate. Yes, the incestuous father was remorseful and all that; he also had been brought up in an abusive home environment and might have trouble changing a light bulb. But the courts really thought he deserved a break because he’s black.
“The moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism, as was done in this case,” wrote the trial judge, a perspective with which the majority of the appeal court agreed. “Sentencing judges should take into account the impact that social and economic deprivation, historical disadvantage, diminished and non-existent opportunities and restricted options may have had on the offender’s moral responsibility….historical deprivation, social and economic deprivation as well as diminished and virtually non-existent opportunities” had apparently made him lust after his own daughter, or something. Essentially what the Canadian courts are claiming is that the simple fact of being black makes one more likely to engage in illegal and anti-social activities.
The Canadian courts can’t see that this is an endorsement of racial stereotyping, low expectations, and the application of different standards for criminals of different races. Explicitly making race a mitigating factor in sentencing would be per se unconstitutional in the United States: even the current whacked and woke Democratic Party wouldn’t try it.
But O, Canada!
Forget it, Jack: it’s Nova Scotia.
Ethics Alarms 
Of important note, this is not judicial activism in Nova Scotia, but a decision in line with the direct intent of the legislature:
Ugh, the block quote are the last two paragraphs.
When I read…
“In mitigation, the father and daughter both have “intelligentual” disabilities.”
…I find myself confused about what the word “daughter” refers to: Is it the father’s older daughter with whom he had an incestuous relationship or is it THAT daughter’s daughter (also the father’s daughter).
In addition to all the other myriad reasons why incest is a such universal moral taboo (it’s something that spans cultures of all time and places), I suppose we can add linguistics to the list.
–Dwayne
“intelligentual” appears to be a typo. It’s ‘intellectual’ in the court document.
In the reference to “father and daughter”, the daughter is the woman who is the mother of the baby produced by the incestuous relationship.
A few things stand out for me, as a non-lawyer.
It appears the relationship was consensual and both were over the age of 18 (maybe 16 is the key age in Canada). But, could the daughter consent to an incestual relationship with her father? Could the father consent to an incestual relationship with his daughter? If the genders were reversed (i.e., a mother and her son) would the law be applied differently? It appears the father was charged, but not the daughter. Why is that? It does not appear that he was in loco-parentis at the time.
As to the main point, the use of the Impact of Race and Culture assessment — the idea of considering factors in mitigation and extenuation seems fine, but, to use them specifically for one race (and a similar process for members of First Nations) does seem to be racist in that it does not treat persons as individuals but as members of a race.
Well, Canada is different.
“If the genders were reversed (i.e., a mother and her son) would the law be applied differently?”
Great question!
“This” is all the things described above, but most significant, “this” is social justice.
As I’ve been saying for quite a while now, what used to be the Civil Rights Movement has morphed into a movement that believes if black people cannot measure up to various social norms, the norms need to be lowered. If you can’t play the game, change the rules so you can win, or at least be competitive, regardless. And I have to say, the movement is succeeding.
Well, love is love, right? So, . . .
jvb
Good one!