Conditional sentence for man who killed 'racist' sets model for dealing with systemic racism: lawyer

Black man given 538 days outside jail, including 12 months house arrest, plus community service

Conditional sentence for man who killed 'racist' sets model for dealing with systemic racism: lawyer

An Ontario superior court ruling gave a conditional sentence to a young Black man who pleaded guilty to firearms charge after killing an “avowed racist” white man in Kingston. It’s the type of decision that is an example of how the court system should deal with certain crimes related to systemic racism, his lawyer says.

“Given the unique factors of this case, “it is historic and precedent-setting for how issues of anti-Black racism were assessed to determine the fit sentence,” says Selwyn Pieters, who defended 21-year-old Vaughan Oscar Roberts.

“We’ve never had a case where the accused was a victim of overt, anti-black racism and took racism into account as an attenuating factor.” 

Pieters added that while other decisions have touched on the role of systemic racism in crimes committed by Black people, “this is a most comprehensive elucidation of sentencing principles where overt, anti-black and systemic racism are collateral factors that must be considered in fashioning the appropriate sentence.”

Initial charges included second-degree murder

Roberts had initially faced a second-degree murder charge following an incident where he shot 43-year-old Jason Wagar in self-defence after a failed conspiracy to rob him.

While the “racist” attack on Roberts didn’t absolve him from the charge of possessing an illegal gun, Ontario Superior Court of Justice judge Alison Wheeler noted that “Black Canadians face discrimination in every important sphere of life, including the justice system.” And having a supportive family and stable home life was insufficient to insulate him from that systemic racism.

The racist nature of the attack inflicted a “significant moral harm” on Roberts, wrote Justice Wheeler, “compounded by the laying of the murder charge when in fact, Roberts was the victim in those events.”

In an oral decision read in court in early March, Justice Wheeler ordered that Roberts serve 538 days outside of jail, including 12 months of house arrest and GPS monitoring, followed by curfew, counselling, 200 hours of community service work and weapons and illegal drug restrictions.

Pieters says Roberts went to Kingston in August 2021 to sell Percocet, bringing a handgun. While in Kingston, Roberts stayed at an apartment occupied by several white people, including Jason Wagar, who had a lengthy and serious criminal record. A friend of Wagar’s told police Wagar was “pissed because he didn’t want n------s selling dope in his house,” the court heard.

Roberts carried $7,000 in cash. His family said this was because he had no bank account to store his earnings from working in construction. He also had 76 Percocet tablets and four tablets of OxyNEO.

Attack by “avowed racist” was planned

Unknown to Roberts was a plan by Wagar and his associates to “ambush” and rob him while he was sleeping. The group had machetes and a pellet gun “that looked real.” In text messages before they attempted to rob Roberts, Wagar and his associates did not refer to him by his name, “but by the n-word.” Pieters says.

When Roberts realized what was happening, he shot and killed Wagar, striking four times. In a panic, he ran from the scene and discarded the gun.

Kingston police arrested Roberts and later found a loaded 9mm Glock near the apartment in a fanny pack Roberts had brought with him. Police also found a machete and a pellet gun in the apartment.

Roberts was granted bail in December 2021 when a different judge ruled Roberts “appeared to be the target of a crime, possibly a hate crime.” Justice Marc Smith said, “the evidence before me demonstrates that Mr. Roberts was the victim of a racist conspiracy and attacked immediately preceding the incident.”

At an arraignment hearing last May, Roberts pleaded guilty to possessing a loaded restricted handgun. He remained free on bail pending a contested sentencing hearing.

At the hearing, the Crown argued that despite the violent attack against him, Roberts should still serve two years in custody. Pieters countered that position by asserting his client should receive a conditional sentence to account for the racist attack and systemic anti-Black racism that Roberts had faced throughout his life.

Pieters says Justice Wheeler’s decision is “truly historic” because she incorporated the attack against his client into her sentence.

Systemic racism should be part of the sentencing process, judge says

Justice Wheeler held that the attack against Roberts was relevant to the sentencing process in two ways. First, it diminished the weight she ascribed to his actions in running from the police and discarding the gun. The attack had understandably caused Roberts to fear for his life and run in a panic, she wrote.

Secondly, Justice Wheeler held that the racist attack was relevant in that the moral harm inflicted on Roberts “was compounded by the laying of the murder charge” when in fact, he “was the victim in those events.”

As Roberts was ambushed by the very people who had invited him to stay in their home—unaware that they held racist attitudes— Justice Wheeler said the attack was relevant. “If before this incident Roberts might have seen the world as an unfair place where life would be harder because he is a young Black man, the race-based attack must have left him with an acute sense of distrust.”

Justice Wheeler added that the race-based assault on Roberts “makes it much harder to apply the principle of parity and to determine a fit sentence by reference to other cases.”

An appropriate sentence for Roberts “must take account of this complexity when it comes to blending the sentencing objectives of deterrence, denunciation and rehabilitation.” Furthermore, “the weight ascribed to the racist attack has to be evaluated in light of the evidence of systemic racism.”

Justice Wheeler wrote, “it is my view that the racist attack is more properly analyzed as an attenuating circumstance …. Jason Wagar did not attack Roberts for idiosyncratic reasons. Jason Wagar’s actions were a “horrific, frightening and overt manifestation of racism.”

The judge then concluded that the appropriate way to “blend the objectives” sentencing was to make it conditional. She also noted previous judgements, such as R. v. Morris, acknowledged “the principle of restraint” concerning the over-incarceration of young Black men.

Developing the jurisprudence on sentencing given the reality of racism

At Roberts’ sentencing hearing, which began Jan. 19, a report by Barrington Walker, a Wilfrid Laurier University professor with expertise in the history and impacts of anti-Black racism, was tabled to support a more lenient sentence. Walker wrote in the “impact of race and culture assessment” report that Roberts’ actions “cannot be properly understood outside of the broader context of violence that is a feature of Black life in Canada.”

Pieters says he has not heard whether the Crown plans to appeal the sentence. He added that while the decision may not carry the same weight as higher-court judgements, Justice Wheeler’s analysis in her conclusion “develops the jurisprudence” on how courts should deal with the reality of racism.

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