The Big Chill?: Contextual Judgment after R. v Hamilton
The tone and thrust of the Ontario Court ofAppeal's decision in R. v. Hamilton will serve to chill efforts by sentencing judges to tailor their responsibilities to accord with the recognized realities of systemic and intersectional inequality in Canadian society The decision presents an unduly conservative response to the judicial function question, and an understandable, if excessively cautious, answer with regard to the application of systemic, intersectional inequality issues in practice. Specifically, the decision underplays the overall remedial goal of section 718 of the Criminal Code by overemphasizing the particularity of Aboriginal peoples, and ignoring the specificity of especially vulnerable communities who suffer from intersecting forms of inequality However, the Court of Appeal was correct to insist on the production of evidence by which to assess the particulars of each case, and in Hamilton the evidentiary link was insufficient. Social contextualism must be continually integrated into the common law in accordance with Charter values, but this is not solely the responsibility ofjudges. It must be perceived as a systems value applicable to all participants in the criminal justice system.