The Ontario Court of Appeal has recently released its decision on the Morris appeal. This decision leaves the legal landscape largely unchanged in terms of how Black Canadians are to be sentenced but provides some clarity that legal professionals and anti-racism advocates had been awaiting.
Ultimately, the Court of Appeal held that courts should consider the effect of anti-Black racism on an offender during sentencing if it has a connection with the specific offender (though such considerations will not work to mitigate the seriousness of the offence when considering sentencing). The Court, unfortunately, did not go far enough to implement a framework for sentencing Black Canadians that will ensure anti-Black racism is consistently and meaningfully considered in sentencing in Ontario; if a judge fails to consider background and systemic factors for Black Canadians during sentencing, it will not amount to a ground for appeal, and so, there is no obligation for Ontario judges to make such considerations.
This is a decision from the appeal in R v. Morris, heard by the Ontario Court of Appeal on October 8th 2021. For information on the factual background of the case as well as the arguments put forth by the parties and the interveners, please see Peacebuilders’ earlier Blog Post from March 30, 2021, titled R. v Morris, Case Summary and Future Considerations.
In the sentencing decision, Justice Nakatsuru of the Ontario Court of Justice, considered evidence about Mr. Morris’ social context. Justice Nakatsuru received reports of Mr. Morris’ experiences and history of anti-Black racism within various institutions, his relationship with police, the danger he felt in his neighbourhood, as well as his mental illness and trauma to determine a fit and proportionate sentence. These reports were presented to assist Justice Nakatsuru in understanding the conditions and context that preceded and related to Mr. Morris’ current criminal involvement. After considering this information, Justice Nakatsuru concluded that 15 months of imprisonment and 18 months of probation was appropriate.
This appeal, launched by the Crown, involved concerns over what information the Judge considered in deciding the sentence of Mr. Morris and the extent to which that information was considered.
Decisions & Reasoning
The Ontario Court of Appeal left the law relatively unchanged in Ontario, disappointingly diverging from the recent decision by the Nova Scotia Court of Appeal in R. v. Anderson, 2021 NSCA 62 (explained further below).
“Receiving Evidence – Judicial Notice, Reports, and a Connection”
The Court held that societal knowledge of anti-Black racism may be received by judicial notice (knowledge known to the court) or by reports detailing anti-Black racism as it pertains to an individual.[i] The Court reasoned that “there can be no doubt that…describing the existence and effect of anti-Black racism in the offender’s community and the impact of that racism on the offender’s circumstances and life choices is part of the offender’s background and circumstances.”[ii] However, the Court cautioned that reports detailing social context must be objective and distinguish between an offender’s perception and objective facts.[iii]
The Court also held that there must be a connection between the experiences of anti-Black racism relied on by the Court and the individual’s current involvement in crime, but this connection does not have to be causal.[iv] This means, for example, that experiences shaping someone’s life opportunities, like their experience in the education system, are relevant to life choices they may make, even though those experiences did not directly cause the current criminal act. In Mr. Morris’ case, the connection between continuous police mistreatment since childhood, being stabbed multiple times in his neighbourhood, anxiety, and other factors were enough to be connected to the crime of, and his moral responsibility for, possessing a firearm.[v]
The Court held that sentencing Judges may consider anti-Black racism in sentencing as it relates to the moral blameworthiness of the offender.[vi] This includes considering the impact of anti-Black racism when determining what sentence might best serve the rehabilitation needs and individual deterrence for that person.[vii] The Court of Appeal reasoned that social context and anti-Black racism are “…essential to the obtaining of an accurate picture of the offender as a person and a part of society”[viii] [because] “… an offender’s life experiences can certainly influence the choices made by the offender, and can explain, to some degree at least, why an offender made a choice to commit a particular crime in the specified circumstances”.[ix] Considering anti-Black racism in this way is consistent with the way that Judges have considered other background factors, such as abuse.[x]
However, the Court also held that sentencing Judges cannot consider the impact of experiences of anti-Black racism when thinking about the seriousness of the offence.[xi] This means that anti-Black racism is not considered relevant to general deterrence or denunciation, principles stemming from the seriousness of the offence.[xii] Consequently, the impact that a person’s experience of anti-Black racism will have on their sentence will be limited where offences are considered serious and where the Criminal Code has specifically stated a focus on deterrence and denunciation is required. In this case, possession of a loaded handgun, a charge Mr. Morris was convicted of, is a serious offence usually requiring imprisonment; experiences of anti-Black racism cannot negate this.[xiii]
Finally, it appears from this decision that the principle of restraint, which means using the least restrictive means possible when sentencing an individual, does not apply equally to Indigenous and Black individuals.[xiv] While there is to be a presumption made by the Courts that incarceration is less appropriate for Indigenous offenders than it is for other offenders due to their unique relationship with Canada and their conception of justice, the same is not true for Black offenders. The Court held that Black offenders still have the benefit of restraint which judges will consider; namely, conditional (community-based) sentences can be considered instead of serving sentences in a penitentiary, and the length of sentences should still be restrained where possible, but this same presumption does not apply.[xv]
Mr. Morris’ Sentence
Mr. Morris’ sentence was increased to 2 years less a day as well as probation.[xvi]
Peacebuilders agrees with and applauds certain elements of this decision; namely, that anti-Black racism should be considered when thinking about rehabilitation and specific deterrence, that a causal connection is not required, that social context reports are admissible (and that the Court-provided guidance on their preparation), and that Judges may take judicial notice of anti-Black racism. Furthermore, the Ontario Court of Appeal made some important recognitions; for example, in their statement that “[a]cknowledging the reality of anti-Black racism and its impact on offenders… during the sentencing process enhances the legitimacy of the criminal justice system…and, in particular, those… who have good reason to see the criminal justice system as racist and unjust”.[xvii]
However, overall Peacebuilders is disappointed with three aspects of the decision.
First, the decision provides little certainty regarding the importance experiences of anti-Black racism will play in each decision, as sentencing judges are to employ their discretion. As a result, anti-Black racism may sometimes be considered heavily, while not considered meaningfully in other cases. This effect may be worsened if defence lawyers fail to raise the issue of anti-Black racism in sentencing. Moreover, the failure of judges in Ontario to truly appreciate and factor in the impact of anti-Black racism on an offender does not appear to be a ground for appeal in Ontario, as it may be in Nova Scotia with the recent Anderson decision there. Therefore, it seems judges in Ontario are not required to consider the impact of anti-Black racism on an offender when deciding sentencing. We support the Nova Scotia Court of Appeal’s decision in Anderson that holds that failure to consider the impact of anti-Black racism on a Black offender during sentencing may amount to an error in law and a ground for appeal.
Second, the Court of Appeal does not go beyond hoping that reports like those relied on by Mr. Morris become more commonplace in criminal proceedings.[xviii] This is not to suggest that the Court has the power to compel funding for these reports, but it could have implored courts to order them and recognized that many Black individuals may not be given fit and proportionate sentences without the level of detail contained in these reports. Courts should, at the very minimum, request details and/or reports on an offender’s experiences of anti-Black racism.
Lastly, the Court’s decision that anti-Black racism does not factor into an assessment of the seriousness of the offence (and does not impact the sentencing principles of general deterrence or denunciation) does little to address the issue of the over-incarceration of Black individuals (again, this is contrary to the Anderson decision in Nova Scotia, which decided that a history of anti-Black racism can be considered when contemplating the seriousness of the offence). The Black Legal Action Centre importantly points out that incarceration, a more likely consequence with the Court’s interpretation, has devastating impacts on Black communities, including exacerbating community criminality; anti-Black racism should be recognized within the general deterrence and denunciation principles to consider more lenient sentences where possible.[xix]
It is Peacebuilders’ hope that future cases will build upon the Ontario Court of Appeal’s decision, and that sentencing will better respond to anti-Black racism in Canada and the over- incarceration of Black Cana