Race, Sentencing and the 'War on Drugs'
(2004) 22 Criminal Reports (6th) 45-56
9 Pages Posted: 4 Mar 2016 Last revised: 5 Mar 2016
In R v Borde (2003), 8 Criminal Reports (6th) 203 (Ont CA), the Ontario Court of Appeal recognized that anti-Black racism could be taken into account in sentencing in applying section 718.2(e) of the Criminal Code, otherwise known as the Gladue provision for sentencing Aboriginal offenders.In R v Hamilton (2004) 22 Criminal Reports (6th) 1 (Ont CA), the same court restricted Borde to cases where there is evidence of a casual link between racism and the commission of the offence.This comment is critical of the decision and its failure to recognize the relevance of anti-Black racism in the "war on drugs" and the relevance of race and general deterrence in thinking about sentencing. These are arguments that are relevant today and could be used to distinguish Hamilton if an appropriate case ever got to the Supreme Court of Canada. In this case, the trial judge raised the issue of gender and racial bias and gave the parties an opportunity to address their relevance to the sentencing of the two Black female accused. The Court of Appeal was critical of the trial judge's intervention. This too was unfortunate given the general reluctance of lawyers to raise these issues.
Keywords: Sentencing, Systemic Racism, War on Drugs, Canada, Judicial Notice, Section 718.2(e)
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