TORONTO — An Ontario Superior Court judge said systemic racism was a relevant mitigating factor in sentencing a Toronto mother for manslaughter in the bathtub drowning death of her 15-month-old son, finding “some connection” between anti-black racism in the community and the circumstances that helped explain her conduct.Justice Kelly made the finding in reasons for sentence released Jan. 8 in R. v. Henry, 2026 ONSC 83, a case involvingTajah Henry, who pleaded guilty to manslaughter after her son Mashiach drowned on Nov. 5, 2022, when he was left unattended in a bathtub..Defence counsel asked the court to consider principles outlined in the Ontario Court of Appeal’s decision in R. v. Morris, which held that social context evidence about anti-black racism may reduce an offender’s moral culpability where there is a meaningful connection to the offence. Justice Kelly agreed that racism exists in Toronto and accepted that Henry had been affected by it, but emphasized that Morris requires more than general recognition of racism.The judge cited Morris’ warning that, without a link between systemic racism and the offence, mitigation risks becoming “a discount based on the offender’s colour,” which Canadian law does not permit.In Henry’s case, Justice Kelly concluded the evidence met the threshold..“Based on the documentation provided, and the agreement of both counsel, I accept that there is some connection between the systemic racism identified in the community and the circumstances that explain Ms. Henry’s conduct in this case,” the judge wrote, adding that the link “need not be causal” but must be sufficient to help assess the offender’s degree of responsibility.The decision does not treat racism as determinative, however. Justice Kelly ultimately imposed a three-year prison sentence, rejecting the defence request for a conditional sentence served in the community and holding that denunciation and deterrence required incarceration in a case involving the death of a young child.Crown counsel had sought four years’ imprisonment.
