Dr. Lisa Kerr JD (UBC), LLM, JSD (New York University) is Assistant Professor at Queen’s University, where she is the Director of the Criminal Law Group and teaches courses on criminal law, sentencing and prison law. Professor Kerr was previously staff lawyer at Prisoners’ Legal Services in British Columbia. She completed her doctorate at New York University as a Trudeau Scholar. She has worked on public interest litigation with Pivot Legal Society and serves on the board of the BC Civil Liberties Association.
Scholars have long lamented the limited impact that section 15’s equality protection has had on criminal law – especially since the administration of criminal law starkly shows how factors like race, class, sex, national origin and gender can both amplify the risk of exposure to criminal prosecution and intensify the experience and effects of criminal punishment. These are the kinds of burdens that section 15 is meant to prohibit, but even the leading cases about constitutional limits on sentencing policy are sourced in section 12 rather than section 15, and judicial analysis has centred on fault rather than protected grounds of disadvantage. This paper explores the recent arrival of a more explicit equality lens to the sentencing field. While Gladue jurisprudence has been largely told as a story about state responsibility for the harms of colonization, as a practical matter Gladue is grounded in individual analysis of culpability informed by a concern with various forms of inequality. Calls to extend Gladue to other racialized defendants have helped to expose that important branch of Gladue. Beyond Gladue, many lower courts in recent years have struck down mandatory minimum penalties with a “circumstances of the offender” framework that is unmistakably appreciative of how various forms of disadvantage affects the question of a fit sentence. This paper considers these and other examples to argue that equality has, somewhat covertly, arrived to Canadian criminal law.