Racial Identity in Sentencing

From Criminal Law Notebook
This page was last substantively updated or reviewed December 2021. (Rev. # 88849)

General Principles

See also: Aboriginal Sentencing Principles and Factors

"Social context" evidence relating to racism experienced by the offender is relevant for mitigation of sentence.[1]

Persons of African descent may be entitled to request an "Impact of Race and Culture Assessment" (IRCA) report to assist the sentencing judge.[2] The IRCA report is able to provide relevant systemic and background factors to the court.[3]

Moral culpability must be assessed in the context of "historic factors and systemic racism," which may provide a mitigating effect on moral blameworthiness.[4]

A sentencing judge should consider 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." [5] They can also use that background to "better understand how to view" the index offence.[6]

Failure to inquire into race-related factors may be an error of law.[7]

  1. R v Morris, 2021 ONCA 680 (CanLII), per curiam, at para 13
  2. R v Anderson, 2021 NSCA 62 (CanLII), 405 CCC (3d) 1, per Derrick JA
  3. Anderson, ibid., at para 114
  4. Anderson, ibid., at para 146
  5. Anderson, ibid., at para 146
  6. Anderson, ibid., at para 146
  7. Anderson, ibid., at para 118