Canadian Courts Consider Race When Sentencing Convicts

By Joanna Button

The issue: In recent years, Canadian courts have begun explicitly considering race as a factor when sentencing felons. Black or “racialized” Canadians charged with crimes can file an “Impact of Race and Culture Assessment,” or IRCA, explaining how systemic racism made them more susceptible to committing crimes. Critics argue such sentencing practices violate the principle that justice should be blind.

History of race-based sentencing: In the ‘90s, Canadian lawmakers seeking to curb Aboriginal overrepresentation in prisons updated the Criminal Code, requiring judges to consider how Canada’s colonial history had affected Aboriginal offenders. IRCAs were introduced for similar reasons and based on the premise that systemic discrimination limits black and Aboriginal people’s opportunities and ability to lead law-abiding lives. The first IRCA was filed in 2014.

Examples: One man charged with armed robbery submitted an IRCA and was released after just six months in prison. “I didn’t face racism. It was my only way out of this situation. I took full advantage,” he admitted to The Free Press. Another black man received a reduced sentence for a hit-and-run, as the judge believed he was afraid to turn himself in to the police due to his experiences with racism.

Becoming the standard: In 2021, Nova Scotia’s top court ruled that judges in the province must consider systemic racism when sentencing black offenders. “Even where the offence is very serious, consideration must be given to the impact of systemic racism […] on the offender.” Canada’s liberal government has pushed the same narrative and subsidized IRCAs since 2021.

Comparison: The U.S. has had a similar push for racial justice, especially since the 2020 Black Lives Matter protests. No race-based policies exist in the U.S. as of now, but Canada’s advancements could serve as a template for U.S. progressives looking to reform the criminal justice system.

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