Examining the Role of Courts to Redress Anti-Black Racism in the Criminal Legal System

• In Event: Social Unrest, Anti-Black Racism, and Bias in Sentencing

Abstract

Research suggests that systemic racism contributes to high rates of Black people who come in contact with the criminal legal system. Canadian courts have recently held that sentencing judges must consider societal factors such as systemic racism when issuing a sentence, however concurrently citing that it is not the role of sentencing judges to remedy systemic failures. This paper examines the self-imposed limits of the judiciary in considering anti-Black racism in sentencing in Canadian courts over a 25 year period (1996-2021). Findings suggest that although sentencing judges recognize the impact that anti-Black racism may have on an individual, they are reluctant to use their judicial discretion to account for this in sentencing and maintain that government is responsible for enacting legislation and policy to guide the principles of sentencing. Theoretical and policy implications are discussed. The paper concludes with a discussion of the existing framework available to courts to remedy Indigenous mass incarceration, which has not yielded the intended results. Thus, demonstrating that legislation cannot solely shoulder the weight of remedying systemic discrimination.

Author

• Vanessa N. Rhodes, University of Guelph