by: Bailey Fox
Introduction
In R v Morris, 2021 ONCA 680, the Ontario Court of Appeal (OCA) considered the impact and role of anti-Black racism in sentencing. The Asper Centre intervened in the appeal, specifically on the issue of whether an offender is required to prove a causal link between systemic racism and the offence. The Court’s decision is both ground-breaking, in recognizing the impact of systemic racism in sentencing, but aspects of the decision also limit the impact it may have in realizing substantive equality.
Mr. Morris was found guilty of gun-related offences, including possession of a loaded handgun. The sentencing judge, having accepted pre-trial sentencing reports detailing the impact of anti-black racism on Mr. Morris’ life and actions, sentenced him to a mitigated 15-month sentence. The Crown appealed the sentence, arguing that it is unfit and not commensurate with the seriousness of the offence. The Court of Appeal agreed with the Crown and increased Mr. Morris’ sentence to two years but stayed the sentence. In lengthy reasons, the Court clarified the role of anti-Black racism in assessing the offender’s blameworthiness, how to prove the impact of systemic racism, and the interaction between the fact of racism and sentencing principles.
Taking Steps…
Aspects of the decision are important for defence lawyers hoping to advance substantive equality in the criminal law. Specifically, the Ontario Court of Appeal acknowledged the existence and negative effects of anti-Black racism in society and in the criminal justice system. The Court held that anti-Black racism should be considered in the sentencing process, specifically in assessing the offender’s moral blameworthiness. Importantly from an access to justice perspective, the OCA held that judges may take judicial notice of anti-Black racism and Black individuals should not be required to tender expert reports detailing the existence of anti-Black racism and its impact on them.
The Court also held that an offender need not demonstrate a causal link between systemic racism and the relevant offence, a holding in line with the Asper Centre’s submissions and the objectives of substantive equality. As an intervenor, the Asper Centre submitted that an offender should not be required to prove a causal link between systemic anti-black racism and the offending conduct. The Asper Centre highlighted that proving such a causal link is not required in other circumstances, such as in the case of youthful offenders or offenders with mental illness. The Asper Centre also submitted that the requirement to prove a causal link is not compatible with the objectives of substantive equality. While an offender may show evidence of how systemic factors affected them, a requirement to demonstrate a causal link would place an undue evidentiary burden on offenders. In holding that a causal link is not required, the Ontario Court of Appeal’s reasons largely mirror the Asper Centre’s submissions on this point. The Court held that while there must be some connection between systemic racism and the criminal conduct, causation “plays no role when considering the impact of an offender’s background or circumstances on sentencing” (para 96 – 97) The court concluded that social context evidence can be useful in explaining the offence and mitigating the offender’s moral culpability (para 99).
…Cautiously…
However, the Court also limited the utility and scope of recognizing anti-Black racism in sentencing. First, the Court held that sentencing judges may only take the role of anti-Black racism into account when considering the offender’s moral culpability but not in considering the seriousness of the offence (para 75). According to sentencing principles, the more serious the offence – and gun-related offences are generally considered more serious – the more a sentence should emphasize the principles of denunciation and deterrence. The OCA held that anti-Black racism cannot reduce an evaluation of the seriousness of the offence and therefore deterrence and denunciation remain important objectives when sentencing Black individuals. This holding however, maintains a cognitive dissonance between society’s collective responsibility for systemic racism and the individual’s conduct – that anti-Black racism does not affect the principle of denunciation impedes both recognizing the impact of racism and addressing it. In concluding that the sentencing judge erred in taking anti-Black racism into account in the context of assessing the seriousness of the offence, the Court of Appeal signals that systemic racism can affect sentencing, but only to a point.
While the case did not explicitly invoke the Charter’s s.15 equality guarantee, the Court’s analysis is very thin on the interaction between s.15, and the goal of substantive equality, and sentencing. Specifically, while recognizing that an offender need not demonstrate a causal connection between the offence and racism, the Court held that a judge may take systemic racism into account and not that they must. Unlike the Nova Scotia Court of Appeal’s decision in R v Anderson, 2021 NSCA 62, the Court did not go so far as to say that it is an error of law if a sentencing judge fails to consider the impact of systemic anti-Black racism. This is unfortunate because under R v Morris, it remains the defence lawyer’s responsibility to raise the issue, and it is within the sentencing judge’s discretion as to how to apply such considerations. This could lead to uneven application of the Court’s findings in R v Morris.
While recognizing the fact of systemic anti-Black racism, the Court’s decision also clings to some conventional individual responsibility and tough on crime narratives in sentencing, therefore limiting the impact of the decision. Notably, the Court overturned the sentencing judge’s finding of fact on why Mr. Morris fled from the police. The sentencing judge had found that Mr. Morris fled at least in part because of an ‘impulsive reaction’ based on his fear of the police and that he would not be treated fairly. However, the OCA held that the ‘only reasonable inference’ is that Mr. Morris fled to avoid being caught (para 171). The Court does not explain why this is the only reasonable inference, or why it was an error to consider the systemic racism often reflected in policing of Black communities in this finding of fact. Similarly, the Court noted that members of the community would not consider “more lenient” sentences for gun crimes as advancing social equality (para 85). This finding, first, reflects and embeds an understanding of conditional sentences as lenient, as opposed to commensurate with the offender’s circumstances. Second, it assigns a ‘tough on crime’ perspective to the community without considering the impact of incarceration on community well-being. In embedding these perspectives in a decision while also recognizing that anti-Black systemic racism may be considered in sentencing, the Court limits the reach of the latter finding.
Conclusion
R v Morris is a promising step in the direction of promoting substantive equality in sentencing. The Court recognized that judges may take judicial notice of anti-Black racism and that offenders need not prove a causal link, holdings that will promote consideration of racism in sentencing. However, in limiting the role of systemic racism in the sentencing process while clinging to a tough on crime perspective, the Court limited the impact of its finding therefore inhibiting the potential for achieving substantive equality in the sentencing process.
Bailey Fox is a Research Assistant with the Asper Centre and is currently an LLM student at the University of Toronto, Faculty of Law.