How should judges consider anti-Black racism in sentencing? Asper Centre intervenes in R v Morris

by Teodora Pasca

On February 11, 2021, the Court of Appeal for Ontario heard oral arguments in R v Morris, the long-anticipated appeal that is expected to determine how systemic anti-Black racism should factor into sentencing determinations.

The Asper Centre intervened in R v Morris with the assistance of counsel Nader Hasan of Stockwoods LLP and Geetha Philipupillai of Goldblatt Partners LLP. The Asper Centre argued that the principle of substantive equality — which requires courts to actively consider the potentially discriminatory impact of criminal laws and procedures on marginalized people — must play a central role in developing a framework for sentencing Black offenders.

The Respondent, Kevin Morris, was a young Black man living in Toronto who had experienced substantial disadvantage and discrimination prior to coming before the court. Having lost his father to cancer at the age of 7, Mr. Morris was raised by a single mother. Though she worked multiple jobs to make ends meet, the family experienced significant financial disadvantage that limited his opportunities. Mr. Morris has lived with a learning disability and mental illness throughout much of his life. Living in inner-city public housing, he repeatedly witnessed violence and was himself a victim of violence, within an environment where his community distrusted the police’s ability to protect them from harm.

Experiences like these made life very challenging for Mr. Morris, and ultimately culminated in criminal proceedings. At the age of 22, he was charged and convicted of possessing an illegal firearm.

The principle of substantive equality is key to understanding the life experiences that brought Mr. Morris before the court and contributed to his offence. As counsel for Mr. Morris Faisal Mirza and Gail Smith argued, the substantial documentation introduced at the sentencing hearing demonstrated that Mr. Morris’s experiences — including poverty, difficulties in school, mental health issues, and violent victimization — were manifestations of anti-Black racism. This is because Black communities experience systemic discrimination and barriers to access in all of these areas of life.

Black people are also more likely to experience discrimination within the criminal justice system and be victimized by police use of force. When Mr. Morris was arrested, for example, police breached his right to counsel under s 10(b) of the Charter and ran over his foot with their squad car.

All parties before the Court of Appeal agreed that systemic anti-Black racism is directly relevant to an offender’s moral blameworthiness and is properly considered in sentencing. The primary dispute was how such factors ought to be considered, as well as whether the specific sentence Mr. Morris received was fit.

Acknowledging the impact of anti-Black racism on the circumstances that brought Mr. Morris before the court, Nakatsuru J sentenced him to a mitigated yet still substantial term of 15 months’ imprisonment, reduced to 12 months to account for the Charter breaches. On appeal, the Crown argued that 15 months was a manifestly unfit sentence in light of the seriousness of the offence and the need for denunciation and deterrence. Conversely, Mr. Morris’s counsel argued that there were no errors in Nakatsuru J’s sentencing determination and that the ultimate sentence imposed — which still put Mr. Morris in jail for a year — sufficiently addressed public safety concerns while being appropriately sensitive to the lived experiences that reduced Mr. Morris’s moral blameworthiness.

The Asper Centre did not take a position on Mr. Morris’s sentence. Its submissions on appeal instead focused on the broader question of how systemic and background factors should inform the sentencing framework for Black offenders.

Drawing on guidance provided by the Supreme Court of Canada’s decision in R v Gladue, the Asper Centre argued that a similar framework — which incorporates systemic and background factors into sentencing and prioritizes non-custodial options — should be adopted for Black offenders. In the Asper Centre’s view, promoting substantive equality in sentencing requires implementing a “Gladue­-like framework” for Black offenders. Although their historical circumstances differ, Black people in Canada experience many of the same circumstances that called for a new approach in the Indigenous context in Gladue, including persistent experiences of discrimination when dealing with the criminal justice system and pronounced over-representation in the prison population.

In its factum, the Asper Centre also took issue with the Crown’s position that something akin to a “causal link” to the offence and the offender is required in order to consider factors linked to anti-Black racism in sentencing. (The Crown ultimately stepped back from this position in oral argument.)

Ultimately, the Asper Centre proposed that a new sentencing framework for Black offenders, in order to be consistent with the principle of substantive equality, should include the following four features:

  • Judges should always turn their minds to systemic factors, even in cases that typically prioritize deterrence and denunciation.
  • The offender should not have an evidentiary onus to show a causal link between their offence and the systemic factors they raise.
  • Judges should request a particularized pre-sentence report that speaks to systemic and background factors if they believe such information will assist in their decision-making.
  • Judges should apply all the purposes and principles of sentencing in light of the reality of anti-Black racism, with maximum attention paid to restorative justice and the principle of restraint.

Morris provides the Court of Appeal with a valuable opportunity to address and clarify how anti-Black racism can be considered in sentencing Black offenders. It remains to be seen what framework or approach the Court will adopt, but its ultimate decision is one to watch — this case could shape how sentencing judges approach issues of racial discrimination and equality for years to come.

The Asper Centre’s intervener factum in R v Morris can be found at this link.

Teodora Pasca is a 3L JD/MA Criminology Student at the Faculty of Law.