Excerpted From: Andrea S. Anderson, Considering Social Context Evidence in the Sentencing of Black Canadian Offenders, 45 Manitoba Law Journal 152 (2022) (90 Footnotes) (Full Document)


OffenersBlackSince reforming 1996 sentencing provisions, the courts have grappled with how to address the role of sentencing objectives within Canada's legacy of colonialism, slavery, and segregation. Several studies and reports have documented a disturbing trend: an increasing over-representation of Black people among those who receive the harshest sentences. Current sentencing practices have contributed to concerns over the higher rates of imprisonment amongst Indigenous and racialized populations in Canada. The incarceration rate of Black Canadian men is five times higher, while Black women are three times more likely to be incarcerated than their counterparts. The 2013 report by the Office of the Correctional Investigator, entitled “The Black Inmate Experience in Federal Penitentiaries,” highlights this increase in the carceral population over the past decade: the Indigenous population increased by 46.4 percent, and the number of racialized groups (e.g. Black, Asian, Hispanic) increased by 75 percent. During this same period, the population of white inmates declined by 3 per cent. Further, the report found Black Canadians make up approximately 3 percent of the general population but accounted for 10 per cent of the federal prison population - an increase of 80 per cent since 2003. While these reports confirm that systemic racism and discrimination often manifest in corrections, it also suggests this is a broader societal problem. Empirical evidence and studies, including from Akwasi Owusu-Bempah and Scot Wortley, have shown a direct link between this disparity in the prison population and “Canada's ... historical treatment of racialized peoples and its involvement in both French and British colonialism,” which “continue[s] to haunt racial minorities in the country.” These studies have raised important questions concerning racial discrimination in the criminal justice system, particularly anti-Black racism, and disparities in the sentencing process. From Parksto Le, the courts have recognized the negative impact of anti-Black racism in the Canadian criminal justice system. Given the acute problem of Black Canadians' over-representation in correctional facilities, Canadian “courts can not presume to be colour blind in these situations.” The sentencing stage is one of the areas in the justice system that can directly address the over-representation of Black individuals. The need for sentencing judges to adequately position the social context of anti-Black racism as evidence is evident.

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Given the widely acknowledged problem of Black Canadian overrepresentation in Ontario prisons and jails, it is important that the courts collectively understand and consider the role anti-Black racism plays in contributing to Black Canadians' contact with the justice system. However, this understanding and consideration by the courts should not be approached by simply layering a Gladue template on top. A sentencing judge can find an appropriate sentence for the offender, one that accounts for all the contributing circumstances, including historical and systemic factors. The Borde decision left an invitation for sentencing judges to address the problems raised by proposing fresh evidence. The ONCA in Morris acknowledged that what is new is the information these reports provide and judicial “willingness to receive, understand, and act on that evidence.” The decision in Morris opened the door to more innovative sentencing approaches toward Black Canadian offenders.

Adjunct Professor, York University; Ph.D. Candidate at Osgoode Hall Law School, York University, Toronto, Ontario, and criminal defence lawyer.