Sentencing

Appeal Court Declines to Set Guidelines for Judges in Ontario Regarding Sentencing Black Offenders

Written on behalf of Affleck & Barrison LLP
Iron fence with padlock at sunset

In a recent decision, the Ontario Court of Appeal was asked to consider how systemic and background factors ought to be considered in sentencing Black offenders in the case of R. v. Kevin Morris.

The Crown argued before the appeal court that the trial judge’s sentence was “manifestly unfit” and that he erred in his consideration of the impact of systemic racism when determining the offender’s sentence.

The Ontario Court of Appeal acknowledged the existence of anti-Black racism, however, it concluded that Black offenders are not entitled to the unique considerations regarding sentencing that are afforded to Indigenous offenders.

The five-member appeal panel, which included one Black judge, emphasized the significance of “free will” when considering sentencing for any offender that commits a crime.

R v. Morris: Judge Considers Systemic and Social Circumstances in Determining Sentence

This recent ruling came down in the appeal case of Kevin Morris (“Morris”), a 22-year-old first time offender who was convicted on charges, including possession of an unauthorized firearm, possession of a prohibited firearm with ammunition and carrying a concealed weapon.

Justice Shaun Nakatsuru sentenced Morris to one year in jail and remarked that an individual’s systemic and social circumstances must be taken into consideration in determining a fit and proportionate sentence.

Furthermore, Justice Nakatsuru emphasized that the social history of Black Canadians should also be considered in the context of sentencing. It is important to note that the judge’s sentencing decision was in part influenced by an enhanced pre-sentencing report submitted by Morris’ lawyers on his behalf (please see our previous blog Requesting Enhanced Pre-Sentencing Reports: R. V. Morris Appeal for information about the reports).

Crown Appealed, Arguing the Sentence Failed to Reflect the Seriousness of the Offences

The Crown prosecutor sought leave to appeal Morris’ sentence and argued that the sentence failed to reflect the seriousness of the offences and that the judge “allowed his consideration of the impact of overt and institutional racism on Mr. Morris to overwhelm all other considerations relevant to fashioning a fit sentence”. The Crown submitted that a more appropriate sentence would be three years for the crimes committed.

Intervenors Suggest Implementing a Framework for Sentencing Black Offenders

Organizations from the Black, Muslim, South Asian and Indigenous communities, as well as criminal defence lawyers and civil libertarians, participated as intervenors in this appeal. These organizations, for the most part, were proposing that the Court implement a framework for sentencing Black offenders.

Too Much Emphasis on Racism and Not Enough on Free Will

The Ontario Court of Appeal concluded that Morris should be sentenced to two years less a day and probation, and commented that up to three years would also have been an appropriate sentence.

The appeal court found that Justice Nakatsuru had too strongly emphasized racism and Morris’ circumstances and had not put enough consideration into his “free will” and his ability to choose whether or not to arm himself when considering his sentence.

On behalf of a unanimous appeal court, the judges wrote:

“We strongly doubt that more lenient sentences for the perpetrators of gun crimes will be seen by the law-abiding members of the community as a positive step towards social equality.”

Modifying Sentencing Laws to Liken Black Offenders with Indigenous Offenders Not Within the Court’s Authority

The appeal court held that it is not up to judges to modify sentencing laws by likening Black offenders with Indigenous offenders. The government chose to single out Indigenous offenders as their circumstances are unique and materially different from non-Indigenous offenders, and Indigenous offenders have a fundamentally different view of justice.

Court of Appeal Identifies Sentencing Considerations Unique to Black Offenders

The judges on the panel of the Court of Appeal did state that although Black offenders should not be treated the same as Indigenous offenders upon sentencing, there are some considerations that are unique to Black offenders. They are as follows:

  • Courts should take judicial notice of the existence of anti-Black racism in Canada and its potential impact on individual offenders;
  • Courts should admit evidence of anti-Black racism in the offender’s community when considering sentencing;
  • Courts should consider the impact of anti-Black racism on the offender’s background and circumstances when considering sentencing;
  • Courts should consider the over-incarceration of Black offenders, particularly young male offenders when taking into consideration a first-time offender and the principle that requires judges to consider all sanctions apart from incarceration; and
  • Courts should consider how the discrimination suffered by Black offenders and its effect on their background, character and circumstances may play a role in establishing the offender’s moral responsibility for the crime.

Response to the Court of Appeal Decision

Black Legal Action Centre

The Black Legal Action Centre (“BLAC”) was, in their words, disappointed by the appeal decision in the case of R. v. Morris because it failed to ensure that sentencing judges in Ontario considered anti-Black racism when sentencing a Black offender.

Nana Yanful, BLAC’s Legal Director, responded to the appeal court decision:

“…Canada’s courts have long recognized the pervasive role of anti-Black racism in the criminal justice system. And yet, Black people in Canada continue to be disproportionately represented in the system. The decision today falls short. Without a new or different sentencing framework, we are concerned that the recognition of anti-Black racism and consideration of historical, social and background factors of Black people will be of no consequence.”

David Asper Centre for Constitutional Rights

Nader Hasan, who represented the David Asper Centre for Constitutional Rights, was also an intervenor on the appeal. According to Hasan, the appeal decision was encouraging in its recognition of racism, however, the decision was frustrating in its limited benefit in future sentencing decisions.

Other Intervenors

The various intervenors were hoping the court would implement a standardized framework for sentencing Black offenders given the history of anti-Black racism in Canada.

Highest Courts in Ontario and Nova Scotia Render Vastly Different Decisions

This decision is vastly different from the decision we recently blogged about by the Nova Scotia Court of Appeal. In the case of Rakeem Rayshon Anderson, who was convicted of five firearms offences, the highest court in Nova Scotia provided guidelines for judges to use in sentencing African Nova Scotians. The Court of Appeal concluded that sentencing judges must consider evidence of historic and racism throughout the sentencing process to determine a just sentence.

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