The appeal will determine what role systemic anti-Black racism should play in criminal sentencing
On February 11, the Ontario Court of Appeal heard oral arguments in R v Morris — the long-anticipated case that is expected to clarify how factors linked to systemic racism against Black offenders should be considered in sentencing.
The complex appeal took place over a full day and featured arguments from the parties, as well as brief submissions from a number of intervenors, including the Black Legal Action Centre and the Canadian Association of Black Lawyers, the Criminal Lawyers’ Association, Aboriginal Legal Services, and U of T’s David Asper Centre for Constitutional Rights. Five judges presided over the appeal: Associate Chief Justice Fairburn as well as Justices Paciocco, Tulloch, Juriansz, and Doherty.
All parties — including the Crown — substantially agreed that systemic and background factors ought to be considered in sentencing Black offenders. This alone makes Morris a highly significant case: it plainly acknowledges that systemic racism plays a role in bringing Black and other racialized people before the court, intersects with a number of common mitigating factors, and bears on an offender’s moral blameworthiness so as to potentially warrant a reduction in sentence.
Much of the dispute before the Court of Appeal will turn on how such factors should be incorporated into sentencing determinations, as well as the particular sentence imposed in Kevin Morris’s case. Whatever the outcome, this case has the potential to revolutionize how racialized people are treated in sentencing, and its impact cannot be understated, especially in light of the significant overrepresentation of Black people at all stages of the criminal justice system.
Kevin Morris’s case
Kevin Morris, a Black man living in Toronto, was charged and convicted of possessing a loaded illegal handgun. Prior to coming before the court, Morris — who had no criminal record and was younger than most students at the law school at the time of the offence — had endured numerous hardships that were directly connected to systemic racism and discrimination against Black people in Canada.
Morris lost his father to cancer at the age of 7 and was subsequently raised by a single mother, who had to work multiple precarious jobs to make ends meet. He has a learning disability and therefore a history of difficult experiences in school. Later in life, he was diagnosed with PTSD and other mental health problems. As a resident in inner-city public housing, he often witnessed and was victimized by violence, within a community that did not trust the police to keep them safe. Even when Morris was arrested, the police violated his Charter right to counsel and brutalized him by running over his foot with their car.
Substantial documentary evidence introduced at the sentencing hearing showed that all of the factors present in Morris’s case were manifestations of systemic anti-Black racism. The evidence demonstrated, for example, that Black people are more likely to be precariously employed and housed, more likely to face inadequate support in school and be denied educational opportunities, more likely to be victims of or witnesses to violence, and much more likely to be victims of police use of force. The difficult experiences Morris had throughout his life occurred in significant part because he was Black — and those difficult experiences ultimately culminated in the criminal offence Morris committed.
In a moving sentencing judgment written and delivered directly to Morris himself, Nakatsuru J wholeheartedly recognized that anti-Black racism was ultimately what had brought Morris before the court. Nakatsuru J held that Morris’s experiences with systemic racism reduced his moral blameworthiness and therefore warranted a reduced sentence. He ordered a (still substantial) term of 15 months’ incarceration, reduced to 12 months for the Charter breaches Morris experienced.
Arguments on appeal
The Crown appealed Morris’s sentence. Counsel Roger Shallow of the Crown Law Office – Criminal argued that the sentence of 15 months was manifestly unfit given the seriousness of the crime of gun possession. The Crown recommended that the sentence be increased to at least three years.
Shallow argued that the systemic racism Morris experienced extended only to his moral blameworthiness and could not outweigh the need for denunciation and deterrence of gun crimes in light of the danger that firearms pose to Canadian society. Although Shallow acknowledged that social context evidence about systemic racism led at the sentencing hearing was valuable, he argued that it should not create a “race-based sentencing discount” or otherwise excuse or justify criminal conduct.
Defence counsel Faisal Mirza delivered oral arguments on behalf of Morris. Mirza argued that Morris had received a fair sentencing hearing and that, though the offence was serious, the sentence Nakatsuru J issued was not manifestly unfit and therefore should stand.
Mirza illustrated the impact of anti-Black racism throughout Morris’s life by systematically walking the court through all of the difficult experiences that brought him before the court. Mirza drew particular attention to the substantial body of pre-sentence materials the sentencing judge had considered in assessing his moral blameworthiness, and argued that the judge’s determination was consistent with the principle of individualization in sentencing.
Looking forward
The Court of Appeal’s decision in R v Morris will be released later this year. The hope is that the court will set out a clear framework for how to consider systemic anti-Black racism in future sentencing proceedings. Clarity in this area of the law is necessary to ensure that Black and other racialized individuals receive fair and proportionate sentences that appropriately account for their lifelong experiences of discrimination and inequality — both within the criminal justice system as well as in other areas such as education, employment, housing, and medicine.
One notable issue the court will have to decide on is whether to adopt a sentencing framework for Black offenders that is similar to the framework for Indigenous offenders set out in R v Gladue. In conjunction with s. 718.2(e) of the Criminal Code, Gladue emphasizes the need to consider systemic and background factors for Indigenous offenders and to avoid jail sentences wherever possible.
On behalf of intervener Aboriginal Legal Services, Caitlyn Kasper argued that due to important differences in historical and colonial contexts, the s 718.2(e) Gladue analysis cannot be duplicated for Black offenders, though the types of evidence raised in Gladue hearings will be relevant to sentencing Black offenders as well. At the same time, Nader Hasan, on behalf of the Asper Centre, noted that the court’s focus should not be on bifurcating the analysis between Black and Indigenous offenders, and rather, Gladue provides helpful guidance for achieving the overarching goal of substantive equality in sentencing.
The Morris appeal also demonstrated how COVID-19 and virtual hearings have revolutionized the appellate litigation process. Mirza in particular took advantage of the digital format by sharing slides that contained excerpts from the social context evidence and quotes from Nakatsuru J’s decision. This method of presentation made plain how Morris’s experiences with racism were clearly relevant to and reflected in the judge’s sentence.
From an access to justice perspective, the online format may be ideal for high-profile hearings, where more people can tune in virtually than could ever fit in a physical courtroom. A link to the Zoom webinar for the appeal was circulated on social media well before the hearing started. In fact, so many people wanted to hear the arguments that the Zoom meeting reached capacity within the first few minutes and had to be upgraded to allow for more attendees. The legal profession and the broader community are clearly following this case with close interest — and the Court of Appeal’s final decision will definitely be one to watch.
