Mr. Burke-Whittaker, a young Black man, pleaded guilty to possessing a loaded prohibited firearm. The sentencing judge gave him a two-year-less-a-day conditional sentence served in the community, plus three years of probation. The Crown appealed, asking the appeal court to send him to prison instead.
The case reached the Supreme Court of Canada on the question of what should happen when a Crown sentence appeal succeeds: is reincarceration automatic, or does the court have discretion?
The Black Legal Action Centre intervened. BLAC argued that reincarcerating a person who has complied with their community sentence is never automatic. Courts must apply proportionality, restraint, and the sentencing principles in section 718.2(e) of the Criminal Code, including the overrepresentation of Black people in custody and the impact of anti-Black racism.
BLAC counsel: Jean-Simon Schoenholz, Nadine Tawdy, Shanika Gordon, Demar Hewitt
Most of Canada’s prison population is filled with people who could safely serve their sentences in the community. Black Canadians are overrepresented in federal and provincial custody. When a Crown succeeds in showing that a sentence was too lenient, the question of whether the person actually goes to prison matters enormously, especially when that person has already demonstrated rehabilitation.
BLAC’s factum reminded the Court that judges can take judicial notice of anti-Black racism in Canada, and that this evidence is relevant not just at the original sentencing but also on appeal. The decision will shape how appeal courts handle conditional sentences across the country.
Why this decision matters for Black communitiesBurke-Whittaker is a human rights and discrimination decision that establishes how systemic anti-Black racism can be made out on the evidence in a tribunal setting. It is useful authority for applicants alleging racial discrimination in employment, housing or services.
What the Court got rightThe decision accepts that direct evidence of racism is rarely available and that discrimination can be proven through a combination of comparator evidence, pattern evidence, and credible testimony about lived experience. It also affirms that the legal test does not require malicious intent.
Gaps and cautionsThe remedy granted is highly fact-specific. The case does not lower the evidentiary threshold; it clarifies what kinds of evidence can satisfy it. Practitioners should still be ready to lead pattern and comparator evidence, not rely on lived experience testimony alone.
Practical takeawayUse Burke-Whittaker to push back on demands for “smoking gun” evidence of racism. Build a record that includes the applicant’s testimony, any comparato
Case comments reflect the views of Black Legal Action Centre and do not constitute legal advice. For advice on a specific matter, contact BLAC or a qualified legal service provider.
Black Justice Hub provides legal information, not legal advice. For advice about your specific situation, contact the Black Legal Action Centre or a lawyer. If you cannot afford a lawyer, you may qualify for help from Legal Aid Ontario.
Mr. Bent is a permanent resident of Canada and a Jamaican citizen. After a criminal matter, the Canada Border Services Agency referred him to an inadmissibility hearing under section 36(1) of the Immigration and Refugee Protection Act. The Immigration Division found him inadmissible.
Mr. Bent and the Black Legal Action Centre filed a joint application for judicial review. They argued that sections 36(1) and 44(2) of IRPA violate section 15 of the Charter because they fail to require decision-makers to consider the role of systemic anti-Black racism that often shapes a person’s contact with the criminal system before it shapes their immigration status.
The federal government brought a motion to strike BLAC as an applicant, arguing BLAC was not “directly affected” and could not name itself as a public interest applicant without first asking the Court’s permission.
On December 20, 2024, Justice Aylen of the Federal Court dismissed the government’s motion. She held that BLAC was entitled to assert public interest standing by naming itself in the notice of application. The question of whether BLAC ultimately has standing will be decided by the judge hearing the merits.
BLAC counsel: Prasanna Balasundaram, Nicole Guthrie. Mr. Bent represented by Andrew Brouwer (Refugee Law Office, Legal Aid Ontario).
Ms. Kanyinda is a refugee claimant from the Democratic Republic of the Congo. She applied for Quebec’s reduced-contribution daycare program so she could look for work and support her three children. The province refused, relying on section 3 of the Reduced Contribution Regulation, which excluded refugee claimants who did not yet hold a work permit.
Ms. Kanyinda challenged the rule under section 15 of the Charter. The Supreme Court of Canada agreed with her. On March 6, 2026, the Court found the regulation discriminated against refugee-claimant women on the combined grounds of sex and immigration status.
The Court applied an intersectional analysis: the rule did not affect all refugee claimants equally. It hit women hardest because women carry most of the unpaid childcare. The remedy expanded eligibility to include refugee claimants.
Mr. Morris, a young Black man from Toronto, was convicted of possessing a loaded firearm. At sentencing, his lawyer filed a cultural assessment and expert evidence on anti-Black racism, poverty, and over-policing in his community.
The trial judge took these factors into account and imposed a 12-month sentence. The Crown appealed, arguing the sentence was too low.
The Ontario Court of Appeal upheld the approach but adjusted the sentence to 15 months. More importantly, the Court set out three holdings that have shaped sentencing across the country.
First, judges may take judicial notice of anti-Black racism in Canada without requiring proof in every case. Second, an offender does not have to prove a direct causal link between systemic racism and the offence. Third, evidence of systemic racism goes to the offender’s moral culpability, not to the seriousness of the offence itself.
Ms. Kanyinda is a refugee claimant from the Democratic Republic of the Congo. She applied for Quebec’s reduced-contribution daycare program so she could look for work and support her three children. The province refused, relying on section 3 of the Reduced Contribution Regulation, which excluded refugee claimants who did not yet hold a work permit.
Ms. Kanyinda challenged the rule under section 15 of the Charter. The Supreme Court of Canada agreed with her. On March 6, 2026, the Court found the regulation discriminated against refugee-claimant women on the combined grounds of sex and immigration status.
The Court applied an intersectional analysis: the rule did not affect all refugee claimants equally. It hit women hardest because women carry most of the unpaid childcare. The remedy expanded eligibility to include refugee claimants.
Mr. Morris, a young Black man from Toronto, was convicted of possessing a loaded firearm. At sentencing, his lawyer filed a cultural assessment and expert evidence on anti-Black racism, poverty, and over-policing in his community.
The trial judge took these factors into account and imposed a 12-month sentence. The Crown appealed, arguing the sentence was too low.
The Ontario Court of Appeal upheld the approach but adjusted the sentence to 15 months. More importantly, the Court set out three holdings that have shaped sentencing across the country.
First, judges may take judicial notice of anti-Black racism in Canada without requiring proof in every case. Second, an offender does not have to prove a direct causal link between systemic racism and the offence. Third, evidence of systemic racism goes to the offender’s moral culpability, not to the seriousness of the offence itself.
A legal resource for counsel representing Black people who are incarcerated. It covers anti-Black racism in Canadian prisons, the failures of the prison grievance system, and concrete strategies including Charter challenges, human rights complaints, and post-sentencing advocacy.
A fill-in-the-blank legal template for bringing a Charter motion challenging unconstitutional prison conditions, including segregation, denial of care, and racial discrimination in custody. The document also includes a sample Canadian Human Rights Tribunal application and a directory of prison advocacy organizations across Canada.
A guide for defence counsel on addressing anti-Black racism at sentencing. It explains why Canada has no Gladue-equivalent for Black accused persons, how to use Impact of Race and Culture Assessments (IRCAs), and includes a factum template and sample sentencing submissions.
A fill-in-the-blank legal template for bringing a Charter motion challenging unconstitutional prison conditions, including segregation, denial of care, and racial discrimination in custody. The document also includes a sample Canadian Human Rights Tribunal application and a directory of prison advocacy organizations across Canada.
A legal resource for counsel representing Black people who are incarcerated. It covers anti-Black racism in Canadian prisons, the failures of the prison grievance system, and concrete strategies including Charter challenges, human rights complaints, and post-sentencing advocacy.
