Commentary on the recent appellate case of anti-Black racism considerations in sentencing
On February 11, 2021, the Ontario Court of Appeal (ONCA) heard the long-awaited decision of R v Morris, 2021 ONCA 680. Originally decided by Justice Nakatsuru at the Ontario Superior Court, this case was praised for its potential to reshape sentencing jurisprudence for racialized offenders. Justice Nakatsuru held that sentencing decisions must account for the intergenerational and systemic realities of anti-Black racism when relevant to questions about criminal responsibility and sentencing objectives. The issue that confronted Justices Doherty, Juriansz, Tulloch, and Paciocco at ONCA was the extent to which these considerations must be incorporated.
Facts:
In 2018, Morris was sentenced following a conviction for firearms possession. The firearm was seized by chance during Morris’ arrest on unrelated charges, for which Morris was later cleared.
The Trial Decision:
After his conviction, Morris was sentenced to one year imprisonment.
Justice Nakatsuru’s decision in Morris—as well as the way he arrived at this decision—reflected a continuity of the increasing jurisprudential attention towards the circumstances of racialized offenders in the decision-making of a criminal trial. We can recall the case of R v Le, where the courts considered how the experience of racialized individuals can be relevant to determinations of whether a detention has occurred. Justice Nakatsuru’s decision-making in the Morris trial similarly reflects this increased attention towards the value of social science evidence in illustrating the predicament of racialized offenders, in a manner that translated into the potential reshaping of our sentencing jurisprudence. This was evident through his admission of two reports which are relevant to the circumstances of Mr. Morris.
The first report, entitled “Expert Report on Crime, Criminal Justice, and the Experience of Black Canadians in Toronto, Ontario,” highlighted the historical and social factors that influence the predicament of Black Canadians. Citing the continuity from the historical roots of anti-Black racism in slavery and colonialism towards the current forces of systemic racism, the report maintained that “poverty, diminished economic and employment opportunities, and a strong and aggressive police presence,” are all part of the ordinary fabric of the Black experience.
The second report, “A Social History of Kevin Morris,” was prepared by a clinical social worker, Camisha Sibblis, and provided evidence of Morris’ socioeconomic and personal circumstances. It revealed how Morris’ life experiences were characterized by trauma and marginality, and how Morris’ upbringing in a tumultuous neighbourhood translated into mistrust in every direction. It revealed how he was a victim of violence, notably citing an instance where he was stabbed by an acquaintance, leading to ongoing medical problems and a heightened sense of fear.
Taken together, these reports reflect a story beyond the mere elements of a firearms offence. Justice Nakatsuru admitted these reports to illustrate the relevance of systemic racism in evaluations of Morris’ personal circumstances. In particular, Justice Nakatsuru held that these circumstances were mitigating factors, since they had significant bearing on Mr. Morris’ personal circumstances as per s 718.2(e) of the Criminal Code.
It is well recognized that s 718.2(e) is used by courts to consider all relevant sanctions other than imprisonment for an offender when available, with a particular attention to the circumstances of Indigenous offenders. The addition of the specific requirement for Indigenous offenders reflects the recognition of the intergenerational nature of trauma, the fact that incarceration may not be a culturally appropriate sentence, and the reality that Indigenous offenders remain overrepresented in our correctional system. For Indigenous offenders, alternative sanctions are evaluated through the approach as established by R v Gladue. However, Justice Nakatsuru noted that the reports admitted as evidence should be applied in a similar way to Morris in order to mitigate the disproportionate incarceration of Black offenders and recognize its connections to intergenerational colonialism, slavery, trauma, and systemic racism.
Decision at the Court of Appeal:
The Crown appealed this decision. While the Crown agreed that courts must acknowledge the reality of anti-Black racism and take it into account in sentencing considerations, they maintained that these considerations must not overwhelm the proportionality analysis in sentencing. Although the Crown submitted that the appropriate sentence must be three years, they conceded that incarceration of Morris would be inappropriate in light of passage of time. As such, the requested sentence of three years was symbolic in nature. It symbolizes the extent to which trial judges can—and should—consider evidence of systemic racism in sentencing.
The Court of Appeal acknowledged the value of admitting the two reports in the trial. Taken together, the Court maintained that this evidence was useful when determining the personal circumstances of Morris. Sentencing is an individualized process, and the role of a sentencing judge is to “impose a sentence tailored to the individual offender and the specific offence” (para 56). As such, the Court agreed that evidence relating to the impact of anti-Black racism on an offender will sometimes be relevant to sentencing.
However, the Court of Appeal also stated that the priority of a sentencing judge is not “aimed at holding the criminal justice system accountable for systemic failures.” Prioritizing the philosophies of free will, the principles of proportionality, and the objectives of sentencing, the Court stated that the severity of the offence—a weapons offence that poses an immediate and real danger to the public—requires a correspondingly severe sentence.
While evidence of systemic racism was held not to have relevance in evaluations of the severity of the offence, the Court of Appeal conceded that it could be relevant in considerations of the degree of the offender’s responsibility. The Court also maintained that a trial judge could give “added weight to the objective of rehabilitation and less weight to the objective of specific deterrence.” If admitted for these purposes, the Court stated, social context evidence would continue to acknowledge the severity of the crime while also individualizing the sentence.
However, the Court rejected the analogy made at trial that the circumstances of anti-Black racism should be treated in a similar way to the predicament of Indigenous offenders through operation of s 718.2(e) of the Criminal Code. This submission, argued by interveners such as Black Legal Action Centre (“BLAC”), was rejected on the grounds that it would create inconsistencies in sentencing decisions. The Court voiced concerns that “the objectives of denunciation and deterrence, always viewed as paramount objectives when sentencing for serious gun crimes, would be tempered in cases involving Black offenders by a countervailing objective requiring that the sentence imposed acknowledge the offender’s status as a victim of society’s racism” (para 82). While the Court acknowledged that the experiences of Black people in Canada share with Indigenous peoples many of the same disadvantages flowing from systemic discrimination, it maintained that mitigating a sentence based on systemic racism may create a “discount based on the offender’s colour” (para 97).
Commentary:
The Ontario Court of Appeal’s judgment has been subject to critique and discussion, particularly from BLAC, the Canadian Association of Black Lawyers, and Aboriginal Legal Services (“ALS”). On one hand, BLAC disagreed with the Court’s ruling, stating that anti-Black racism must be considered as a legal condition of sentencing, whenever a Black person is brought before a sentencing judge. This would be facilitated by inquiring into social context evidence, much like the case here. Nana Yanful, Legal Director of BLAC, hypothesized that “a Morris-style report” can be used to provide evidence of the extent to which anti-Black racism impacts an offender’s opportunities, support and social networks, employment history, and life more broadly. This would be similar to the content of a Gladue report and its relevance to sentencing considerations.
Conversely, the Court of Appeal’s refusal to read in considerations of anti-Black racism into its interpretation of s 718.2(e) was supported by other interveners such as ALS. In their factum, ALS stated that the Gladue jurisprudence that is used to interpret the restraint principle of s 718.2(e) cannot be applied to non-Indigenous offenders (at para 10 of Morris ONCA).
This appeal decision sheds light on some important considerations in the development of s 718 jurisprudence as it relates to Black offenders. That this case—and others—has acknowledged the pressing need for considering social context evidence to illustrate the impact of systemic racism on the individual offender is important.
Parallels between anti-Black racism and the colonial impact on Indigenous peoples are found in some cases and elusive in others. Both Black and Indigenous peoples share in common intergenerational marginalization arising from colonialism: a lineage from slavery and the Residential Schools system, to ghettoization and the pass system, to the current reality characterized by diminished opportunities in employment, finance, and family support, and the current climate of overpolicing and overincarceration. As such, it is not unfeasible to consider how s 718.2(e) can be interpreted in a manner that underscores the need to address systemic racism.
The Court’s strict reading of s 718.2(e) reflects an underlying problem of infrastructure. While the jurisprudence for considering systemic racism in sentencing decisions exists, the wording of s 718.2(e) is presently restricted to the circumstances of Indigenous offenders. By this strict reading, the Court sent a more inviting message: if changes in sentencing considerations are to occur, they must be done so formally by Parliament.
Editor’s Note: This is an abridged version, read the full article on Crimes, Courts, and Commentary (CCC).
This series by the Criminal Law Students’ Association introduces the law student body to the wild, wild world of criminal law and criminal justice. Articles will be published in print in Ultra Vires as well as on the CLSA’s website. To pitch an article to CCC, please contact the Blog Editors, Nicholas Buhite or Anna Zhang at [email protected] and [email protected], respectively.
