Published Mar 22, 2026<\/p>\n\n\n\n In December 2021, Everton Downey stabbed his girlfriend<\/a> Melissa Blimkie 15 times in a stairwell at a shopping mall in Burnaby. She died. Downey was convicted<\/a> of second-degree murder. In February, the British Columbia Supreme Court sentenced<\/a> 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 \u201cmitigating circumstances of his background,\u201d as described in his Impact of Race and Culture Assessment<\/a> (IRCA). The time to parole was reduced because of Downey\u2019s experience of being Black.<\/p>\n\n\n\n Race-based sentencing has become commonplace in Canada. The sentence doesn\u2019t fit the crime but the identity of the criminal. \u201cRacialized\u201d offenders, especially Indigenous and Black, may have their sentences reduced because of \u201covert and systemic discrimination.\u201d So the Supreme Court of Canada said<\/a> last July. The Criminal Code<\/a> directs judges to consider \u201cthe circumstances of Aboriginal offenders\u201d in setting sentences. The Supreme Court has suggested that \u201cinquiring into social context\u201d of other racial groups can provide guidance \u201cto understand the particular experience of an offender and their moral culpability.\u201d It doesn\u2019t matter if you\u2019re black or white, Michael Jackson sang. He wasn\u2019t referring to Canadian courts.<\/p>\n\n\n\n It\u2019s 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 \u201chistorically disadvantaged groups.\u201d Which are all of them. Except straight white men, of course.<\/p>\n\n\n\n How can this be? Doesn\u2019t the law prohibit discrimination? In Canada, the answer is no. Americans have a constitutional right<\/a> to equal protection of the law. Canadians don\u2019t.<\/p>\n\n\n\n The text of the Canadian Charter of Rights and Freedoms suggests that they do. Section 15(1)<\/a> says that every individual \u201cis equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.\u201d 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.<\/p>\n\n\n\n In 1984, the federal government established the \u201cRoyal Commission on Equality in Employment,\u201d also known as the Abella Commission after its commissioner Rosalie Abella, later a judge of the Supreme Court (now retired). The commission\u2019s mandate was to enquire into employment discrimination in Canada, particularly against women and visible minorities. Its report<\/a>, 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<\/a> in 1986. It required federal employers to \u201censure that persons in designated groups achieve a degree of representation in each occupational group in the employer\u2019s workforce\u201d 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.<\/p>\n\n\n\n As a mere statute, not part of the Constitution, the Employment Equity Act did not bind the Supreme Court\u2019s interpretation of the Charter\u2019s equality provision. But the Act was newly in place when the Supreme Court heard its first case under section 15. The Court decided<\/a> that section 15(1) required \u201csubstantive equality.\u201d 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.<\/p>\n\n\n\n Section 15 also includes an exception. Section 15(2) allows for laws and programs that aim to ameliorate \u201cconditions of disadvantaged individuals or groups.\u201d The Supreme Court of Canada has since made the exception into the general rule. Sections 15(1) and (2), it declared<\/a> in 2008, \u201cwork together to confirm s. 15\u2019s purpose of furthering substantive equality.\u201d Which means equity.<\/p>\n\n\n\n Race-based criminal sentencing is not an automatic discount. It\u2019s not a coupon or a \u201cget-out-of-jail-free\u201d card. The court takes the background and circumstances of \u201cracialized\u201d 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\u2019t get Gladue Reports<\/a> or Impact of Race and Culture Assessments.<\/p>\n\n\n\n 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\u2019s justice system is broken. To fix it, equity must go. (National Post, March 21, 2026)<\/p>\n\n\n\n![\"Melissa](\"https:\/\/smartcdn.gprod.postmedia.digital\/nationalpost\/wp-content\/uploads\/2026\/03\/Melissa-Blimkie.jpg?quality=90&strip=all&w=288&h=216&sig=O1LmGsmQIpnwfid4Y7RR1g\")
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