"Within the Limits of the Law": Examining Anti-Black Racism and Judicial Sentencing Discretion in Canada between 1990-2022


Vanessa Rhodes, University of Guelph

Anti-Black racism is often discussed within the American context; however, Canada also has deep-rooted racial tensions that present in the over-representation of Black and Indigenous peoples in the Canadian criminal legal system. Canadian courts have recently held that sentencing judges must consider systemic racism when issuing a sentence, while simultaneously citing the role of a sentencing judge is not to remedy systemic failures. Framed within Critical Race Theory, this study draws on Canadian court decisions over a 32-year period (1990-2022) to examine whether and how the judiciary considers anti-Black racism in sentencing decisions. Preliminary findings suggest that sentencing judges are reluctant to use judicial discretion and existing tools in the Criminal Code of Canada to address systemic discrimination in sentencing. The Canadian government expanded sentencing legislation in 1996 to reduce Indigenous incarceration, however it has not ameliorated the incarceration rates of Indigenous peoples. Therefore, findings demonstrate that legislation alone cannot remedy systemic racism in the Canadian criminal legal system.

Non-presenting author: Kanika Samuels-Wortley, Ontario Tech University

This paper will be presented at the following session: