National Responsibility and Systemic Racism in Criminal Sentencing: The Case of R. v. Hamilton.

Source: (-0001) Workshop draft. University of Toronto – Department of Sociology and Equity Studies. Downloaded 19 October 2005.

On February 23, 2003, the Ontario (Canada) Superior Court of Justice ruled in the case of R. v. Hamilton. The court held that systemic racism against the black community in Canada influenced the sentencing hearing for two black women who had pled guilty to drug smuggling. Hence the court reduced the sentences of the two women on the basis of this finding of systemic racism in the lower court’s action. Part of the Superior Court’s reasoning stemmed from the legal precedent set by the Canadian Supreme Court’s ruling in R. v. Gladue (1999), based on the Canadian Criminal Code’s recognition of and remediation for historical and systemic disadvantage for Aboriginal offenders facing sentencing in courts. In this paper, Murdocca uses R. v. Hamilton to argue that the application of the relevant section of the Criminal Code constitutes a practice of nation-building where the negotiation of past injustice in criminal sentencing highlights how law produces legitimate citizens and legitimate national history. It does this through culturally and racially codifying non-white subjects before a court.