Requesting Enhanced Pre-Sentencing Reports: R. v. Morris Appeal

Written on Behalf of Affleck & Barrison LLP

The long awaited appeal in the 2018 case of R. v. Morris is expected to be argued before the Ontario Court of Appeal sometime this fall.  The case, which was to be heard last September 2019 (which we previously blogged about), was delayed due to the death of a key lawyer and COVID-19.

The case includes numerous prominent human rights, legal and ethnic organizations that have been granted special status to act as interveners on the appeal.  The interveners will speak to the court about the value in admitting evidence included in enhanced pre-sentencing reports during the sentencing hearing that address unique historical and systemic factors.  The organizations include the Criminal Lawyers’ Association, the Canadian Civil Liberties Association, the Canadian Association of Black Lawyers, Urban Alliance on Race Relations and the David Asper Centre for Constitutional Rights. 

Other interveners, which include the South Asian Legal Clinic of Ontario, Chinese and Southeast Asian Legal Clinic, Colour of Poverty/Colour of Change Network, Aboriginal Legal Services, the Canadian Muslim Lawyers’ Association, will also be asking the court for these “cultural assessments” to apply to all minority groups, not just Black offenders.

MORRIS’ TRIAL AND SENTENCING

Following a jury trial, Kevin Morris (“Morris”) was convicted of possession of an unauthorized firearm, possession of a prohibited firearm with ammunition and carrying a concealed weapon. 

In July 2018, Ontario Superior Court Justice Shaun Nakatsuru sentenced Morris to one year in jail.  The Crown prosecutor had requested that the court put Morris in jail for 4 to 4 ½ years.  Morris’ lawyers asked for a one year sentence, minus credit for various Charter breaches that were found.

Justice Nakatsuru applied the same analysis to Morris’ case as he did to one of his earlier decisions in the case of R. v. JacksonHe stated:

The criminal law has recognized that there are cases where, in order to determine a fit and proportionate sentence, consideration must be given to an individual’s systemic and social circumstances.  These circumstances may extend beyond a person who is being sentenced to include factors such as systemic discrimination and historical injustice. 

Justice Nakatsuru acknowledged that criminal courts have recognized systemic discrimination and historical injustice in the case of Indigenous offenders.  He stated that the consideration of social context in a sentencing decision is allowed further to section 718.2(e) of the Criminal Code.  Thus, consideration of the social history of Black Canadians is also allowed in the context of sentencing. 

Justice Nakastsuru’s sentencing decision was in part influenced by an enhanced pre-sentencing report submitted by Morris’ lawyers on his behalf.

During the sentencing hearing, Justice Nakatsuru was presented with two reports on Morris’ behalf.  One report dealt with anti-Black racism in Canada and the other one dealt with Morris’ social history.  Although the Crown prosecutor objected to the admission of the first report, Justice Nakatsuru found the report to be useful.  The report concluded that young Black Canadian men in particular feel discrimination in the criminal justice system and are overrepresented in the practices by local police and in the jails.

Justice Nakatsuru also admitted the second report submitted by the defence into evidence, which described the impact that systemic racism had on Morris’ experiences inside and outside of the justice system.  He stated that judges can take a broader view of the materials that should be admissible.

THE UPCOMING APPEAL

The Crown is challenging what they believe was a lenient sentence given to Morris by taking this case before the Ontario Court of Appeal.  The issue before the court is how much weight should be given to systemic racism when faced with sentencing Black offenders. 

It is the Crown prosecutor’s position that there was no clear evidence of a link between systemic discrimination and the crimes Morris committed.  Furthermore, given the rise in gun violence in Toronto this is not the time to show leniency for this type of behaviour.

Although the courts consider the systemic disadvantages Indigenous offenders experience when sentencing (called the Gladue principle), there is no such principle available to Black offenders.  This may change in Ontario depending upon the result of this appeal. 

THE SENTENCING AND PAROLE PROJECT

A new organization, the Sentencing and Parole Project (“SPP”), is dedicated to encouraging Ontario courts to consider the impact of systemic racism when sentencing Black offenders.  The organization is focused on the creation of “enhanced pre-sentencing reports”, similar to Gladue reports for Indigenous offenders.  These reports will explore an offender’s background and use established research to analyze how experiences shaped by systemic racism should weigh in the context of sentencing. 

These cultural assessment reports would be prepared by experienced social workers following extensive interviews with the offender, family members and close friends, and will include recommendations on programs and other supports that could help the offender’s rehabilitation.

The organization officially launched in May and has been involved in 10 sentencing decisions dating back to 2018.  Due to lack of funding, SPP is selective in deciding on appropriate clients to provide their services to.  SPP would like to see the practice of the “cultural assessments” or enhanced pre-sentencing reports instituted across Canada and funded by the justice system.

SPP maintains that an enhanced pre-sentencing report is an important element for sentencing judges and parole boards to consider the influence of anti-Black racism as a mitigating factor when considering a fair sentence.

We will continue to follow this case and will report the results of this appeal decision in this blog when it becomes available.

In the meantime, if you have been charged with weapons offences or have questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.