Ontario Court to decide how systemic factors should impact the sentencing of Black people.

 

Kevin Morris, a then 22-year-old Black male, was arrested by Toronto Police in 2014 after incorrectly being connected to a nearby home invasion. Mr. Morris was eventually found guilty of possession of an unauthorized firearm and sentenced to 12 months in jail by Justice Shaun Nakatsuru of the Ontario Superior Court in July 2018. In deciding Mr. Morris’ sentence, Justice Nakatsuru considered the impact of anti-Black racism on Mr. Morris’ life and his social history. It was this consideration that the Crown would later appeal, arguing that Justice Nakatsuru’s sentence was lenient and that a causal link must have existed between Mr. Morris’ experience of racism and his offence if it was to have any bearing on his sentence.

On February 11, 2021, the Crown, Mr. Morris’ defense counsel and ten (10) intervenors[1] appeared before the Ontario Court of Appeal to determine how systemic and background factors should be treated when sentencing a Black person. Mr. Morris’ defense counsel and the intervenors refuted the Crown’s arguments and advocated for the consideration of such factors whenever a Black individual is sentenced.[2] Specifically, both the Black Legal Action Centre (BLAC) and the David Asper Centre for Constitutional Rights reminded the court that the Crown’s proposed causal link requirement was explicitly rejected by the Court in the case of R. v. Ipeelee, a case involving the sentencing of an Indigenous person.[3] The David Asper Centre also noted that requiring a party to demonstrate a causal link would impose an unfair evidentiary burden on Black individuals.[4]

After hearing all the submissions, the Court reserved judgement to a later date. We are currently still awaiting a decision in this matter.

 

Future Considerations.

It is well established that racial bias and discrimination are embedded within the administration of criminal justice in Canada.[5] Such discrimination is evident in the statistics which demonstrate that Black people are disproportionally targeted by police and overrepresented in prisons.[6] It is this embedded bias that R. v. Morris has the potential to challenge by altering how Ontario courts sentence marginalized people.

Indeed, R. v. Morris is an important case as it may establish a framework for the consideration of systemic factors whenever a Black person is sentenced. According to BLAC and the Canadian Association of Black Lawyers (CABL), this framework will allow sentencing judges to properly, meaningfully, and consistently assess the impact of anti-Black racism on offenders.[7] Such assessments are critical to guaranteeing an equitable, fair justice system that engages in meaningful sentencing. By focusing on racism and not race, the R. v. Morris framework will highlight the policies and practices that allow anti-Black racism to thrive and encourage their dismantlement.[8]

Peacebuilders recognizes the significance of this type of sentencing framework and the monumental impact it could have.  At the same time, we recognize that more work still needs to be done to secure equity for Black and racialized Canadians. Peacebuilders believes that the impact of systemic factors should be considered anytime a Black individual engages with the justice system. This would mean that the impact of anti-Black racism would be factored into police interactions, throughout bail proceedings and the trial process. In fact, until this time, the impacts of discrimination and prejudice will remain widely unchecked. As eloquently noted by Osgoode Hall Law student Priyanka Sharma, “if the histories of colonialism, slavery, segregation, intergenerational trauma, and overt and systemic racism are to be truly understood and accounted for, then [the] process should at least begin at first contact with the criminal justice system, the police, and at every stage thereafter.”

 

References.

[1] The intervenors included the Black Legal Action Centre (BLAC), Canadian Association of Black Lawyers (CABL), Aboriginal Legal Services, The David Asper Centre for Constitutional Rights, Criminal Lawyers’ Association, South Asian Legal Clinic of Ontario, Chinese and Southeast Asian Legal Clinic and Colour of Poverty/Colour of Change Network, Canadian Civil Liberties Association, Canadian Muslim Lawyers Association, and Urban Alliance on Race Relations.

[2] Priyanka Sharma. (February 9, 2021). Systemic Oppression in Sentencing: ONCA to Rule on Anti-Black Racism Reports in R v Morris,’ online: https://www.thecourt.ca/systemic-oppression-in-sentencing-onca-to-rule-on-anti-black-racism-reports-in-r-v-morris/.

[3] David Asper Centre of Constitutional Rights. “Intervenor Factum,” online: https://aspercentre.ca/wp-content/uploads/2019/07/Morris-factum.pdf.

[4] Ibid.

[5] Christine Conrad, Candace Vena & Angela Yip. (2018). “Racialized Populations and Mental Health Court Diversion: Background Paper,” online: http://eenet.ca/sites/default/files/2018/Racialized%20Populations%20and%20Mental%20Health%20Court%20Diversion%20Background%20Paper_0.pdf.

[6] Black Legal Action Centre and Canadian Association of Black Lawyers. “Intervenors Factum,” online: https://www.blacklegalactioncentre.ca/wp-content/uploads/2021/03/C65766.FOI-BLACCABL.pdf.

[7]Supra note 6.

[8] Ibid.