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Bruce Pardy: Racial discounts for violent criminals was inevitable in equity-obsessed Canada

The Supreme Court ensured the Charter would never guarantee equality under the law

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In December 2021, Everton Downey stabbed his girlfriend Melissa Blimkie 15 times in a stairwell at a shopping mall in Burnaby. She died. Downey was convicted of second-degree murder. In February, the British Columbia Supreme Court sentenced him to life in prison, the minimum sentence set out in the Criminal Code. The Crown sought no chance for parole for at least 15 years. But Associate Chief Justice Heather Holmes decided on 12 years instead, in part because of “mitigating circumstances of his background,” as described in his Impact of Race and Culture Assessment (IRCA). The time to parole was reduced because of Downey’s experience of being Black.

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Race-based sentencing has become commonplace in Canada. The sentence doesn’t fit the crime but the identity of the criminal. “Racialized” offenders, especially Indigenous and Black, may have their sentences reduced because of “overt and systemic discrimination.” So the Supreme Court of Canada said last July. The Criminal Code directs judges to consider “the circumstances of Aboriginal offenders” in setting sentences. The Supreme Court has suggested that “inquiring into social context” of other racial groups can provide guidance “to understand the particular experience of an offender and their moral culpability.” It doesn’t matter if you’re black or white, Michael Jackson sang. He wasn’t referring to Canadian courts.

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It’s not just criminal sentencing. From employment opportunities, government programs and subsidies, seats in university programs, and myriad other ways, Canadian laws and institutions treat different races, sexes, and genders differently. They provide more favourable or lenient criteria to “historically disadvantaged groups.” Which are all of them. Except straight white men, of course.

How can this be? Doesn’t the law prohibit discrimination? In Canada, the answer is no. Americans have a constitutional right to equal protection of the law. Canadians don’t.

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The text of the Canadian Charter of Rights and Freedoms suggests that they do. Section 15(1) says that every individual “is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” The Charter was adopted in 1982, but section 15 did not come into force until April 1985. The Supreme Court of Canada did not decide its first case under section 15 until 1989. In the interim, another development would have a significant impact on the path of equality law in Canada.

In 1984, the federal government established the “Royal Commission on Equality in Employment,” also known as the Abella Commission after its commissioner Rosalie Abella, later a judge of the Supreme Court (now retired). The commission’s mandate was to enquire into employment discrimination in Canada, particularly against women and visible minorities. Its report, released in 1985, recommended employment equity policies in the federal government and in federally regulated companies. Those recommendations led to the passage of the federal Employment Equity Act in 1986. It required federal employers to “ensure that persons in designated groups achieve a degree of representation in each occupational group in the employer’s workforce” that reflected their representation in the Canadian workforce. In other words, it directed federally regulated employers to adopt affirmative action programs that gave preference to candidates from some groups over others. It mandated unequal treatment, or equity.

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As a mere statute, not part of the Constitution, the Employment Equity Act did not bind the Supreme Court’s interpretation of the Charter’s equality provision. But the Act was newly in place when the Supreme Court heard its first case under section 15. The Court decided that section 15(1) required “substantive equality.” Which means equal or comparative benefits and burdens. Which means equal or comparable outcomes between groups. Which may require different rules for different groups. Which means equity.

Section 15 also includes an exception. Section 15(2) allows for laws and programs that aim to ameliorate “conditions of disadvantaged individuals or groups.” The Supreme Court of Canada has since made the exception into the general rule. Sections 15(1) and (2), it declared in 2008, “work together to confirm s. 15’s purpose of furthering substantive equality.” Which means equity.

Race-based criminal sentencing is not an automatic discount. It’s not a coupon or a “get-out-of-jail-free” card. The court takes the background and circumstances of “racialized” individuals into account. But that is exactly the problem. Defenders of the practice would say that the court is merely ascertaining culpability of the individual accused. But if that were so, the same considerations and potential reductions would be available to the accused of any racial group. White guys don’t get Gladue Reports or Impact of Race and Culture Assessments.

In Canada, legal equality now means equity. Equity means unequal treatment. The same laws and standards do not apply to everyone. Instead, laws and institutions can treat different identity groups differently. In criminal sentencing, as in applications for jobs, schools, and programs, some Canadians are more equal than others. Canada’s justice system is broken. To fix it, equity must go.

Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University. 

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