Asper Centre interventions

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

Posted on by Tal Schreier

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.

Remembering Joseph Arvay

Posted on by Tal Schreier

The David Asper Centre for Constitutional Rights joins the constitutional law community in mourning the death of Joseph Arvay, O.C., O.B.C., Q.C. Joe Arvay offered his time to the Centre as our first constitutional litigator in residence. Indeed he was the inspiration for the continuing role that has been incorporated into our teaching and advocacy. He gave generously of his time to the students and was an important supporter of our advocacy. Of his time with us, Joe said, “I really enjoyed my experience as the first constitutional litigator in residence at the Asper Centre. It was a joy to work with students again.”

Marcus McCann (JD 2014) was one of the students who worked with Joe on the Asper Centre’s intervention in Bedford v Canada on the role of stare decisis in constitutional litigation: “It was a great pleasure to see Joe’s mind at work. He was very tactical, always five steps ahead in the conversation. That should be obvious from his career. But at the same time, he never lost sight of the goal, of the people who would be helped by litigation. He litigated with heart, even when he was litigating a seemingly bloodless topic like stare decisis.”

At the Centre’s 10th Anniversary Event, Joe joined Mary Eberts, another constitutional litigator in residence, on stage in a discussion with the Hon. Thomas Cromwell on significant issues in constitutional litigation in Canada. The topics were wide ranging with two formidable leaders of the constitutional bar and the former Supreme Court of Canada Justice, from the seminal cases in which they both participated in Andrews v British Columbia, to significant aboriginal rights cases, to the more recent Carter v Canada. Executive Director, Cheryl Milne, noted, “There is no other lawyer in Canada who has litigated as many significant constitutional cases at all levels of Court as Joe. His stamp on constitutional law in this country is monumental. While many lawyers have regularly taken on interventions at the Supreme Court, Joe made it a point to litigate these cases at the trial level.” As he himself noted in reference to his cases involving advanced costs, “We can all do pro bono work as interveners, but try starting a case like Little Sisters, try starting a case like Carter, try starting any of these cases, which involve thousands of hours of work. It would be so much more encouraging for lawyers if they could get costs in advance.”

Professor Kent Roach, the chair of the Asper Centre’s advisory board worked with Joe on number of cases, some focusing on aboriginal rights. He says, with sadness, “Joe was fearless and his intellectual curiosity knew no bounds. His advocacy shaped the Charter of Rights and Freedoms and always in the direction of helping the disadvantaged. He also knew how to have fun and never took himself too seriously. He will be sorely missed.”

Asper Centre Intervention Influences SCC on Suspended Declarations

Posted on by Tal Schreier

by Jeffrey Wang

The Supreme Court of Canada (SCC) recently released the decision of ON (Attorney General) v G. This case challenged the constitutionality of Christopher’s Law, an Ontario law that allowed some offenders who were convicted of sexual offences to be removed from the federal and provincial sex offender registries after 10 years. Christopher’s Law did not extend to any offenders who had been found not criminally responsible due to mental disorder even if they had been absolutely discharged of the crime. The respondent fell within this latter group and challenged this law under s. 15 of the Charter for discrimination on the basis of mental disability.

At the Ontario Court of Appeal, Justice Doherty found that Christopher’s Law violated s. 15 and thus struck down the law. However, he suspended the declaration of invalidity for twelve months in order to allow the legislature to amend the impugned law. Justice Doherty also exempted the applicant G from this suspension, which meant that Christopher’s Law immediately stopped applying to him personally. This exemption was very controversial since it went against the SCC’s jurisprudence in R v Demers that individual remedies under s. 24(1) should not be combined with general remedies under s. 52.

The Asper Centre intervened in ON v G on the issue of remedies. Assisted by Professor Kent Roach, the Centre argued that courts have increasingly used suspended declarations of invalidity without proper justification. The Centre urged the SCC to adopt a more principled approach to applying this constitutional remedy. Additionally, the Centre argued that individual exemptions can be applied in conjunction with suspended declarations of invalidity in order to allow applicants to benefit from their successful Charter challenge.

The SCC’s ON v G decision “accept[ed] the Asper Centre’s invitation to articulate a principled approach to remedies for legislation that violates the Charter.”[1] The majority decision asserted that constitutional remedies should guided by four remedial principles: Charter rights should be safeguarded; the public has an interest in the constitutional compliance of legislation; the public is entitled to the benefit of legislation; and the courts and legislatures play different institutional roles.[2] Constitutional remedies must balance the fact that the public does not want to be governed by unconstitutional legislation but also cannot function under an absence of legislation. To reach this balance, the Court once again urged the judiciary to carefully identify the unconstitutional aspects of legislation and use reading down, reading in, and severance to preserve its constitutional aspects.

In its discussion of suspended declarations, the Court recognizes that there may be times where “giving immediate and retroactive effect to the fundamental rights and freedoms guaranteed by the Charter must…yield to other imperatives.”[3] However, agreeing with the Asper Centre, the Court is clear that suspended declarations should only be granted where the government can demonstrate “that the importance of another compelling interest grounded in the Constitution outweighs the continued breach of constitutional rights.”[4] For example, the government can rely on the distinct roles of the courts and legislatures, but must show that “an immediately effective declaration would significantly impair the ability to legislate.”[5] Courts must also balance the benefits of a suspended declaration against the significance of the Charter right in question. For example, it will be difficult to balance a suspended declaration against potential criminal jeopardy.[6] Moving forward, the Court is clear that suspended declarations will be rare, and the government will also have to justify its length if it were to be granted.

This principled balancing approach expands the previous categorical Schachter framework where suspended declarations were only granted in three specific scenarios. As noted by the Asper Centre and other commentators, many cases after Schachter continued to grant suspensions beyond these categories often without explanation. This more flexible approach in ON v G addresses this concern and allows justified uses of this remedy in more unique circumstances.

The ON v G Court also departed from precedent and allowed the simultaneous application of s. 24(1) and s. 52 remedies. This means that individual claimants can be exempt from suspended declarations. While some have argued that only allowing the claimant to be exempt is unfair to all others in their position, the Court reasoned that the claimant is the one who brought a successful Charter challenge and should reap its rewards.[7] Additionally, since Charter challenges can be difficult to bring forward, individual exemptions to suspended declarations may temper the disincentives of litigation.[8] The Court also noted that the government may show that there is a compelling reason to deny an exemption, such as if the exemption would undermine the purposes of the suspension, or if judicial economy would not be served by exempting a large class of claimants.[9]

Applying these principles to the case at hand, the Court noted that a suspended declaration of invalidity for Christopher’s Law is justified for public safety reasons[10]. Immediately declaring the law to be invalid could potentially irreversibly exempt many dangerous individuals from being listed on the sex offender registry, greatly restricting the effectiveness of new legislation.[11] However, an individual exemption is warranted for the claimant, since they have long had a spotless criminal record and do not pose a threat.

The Asper Center reached out to Professor Kent Roach to get his thoughts on the ON v G ruling. He comments that:

“The case will be a landmark one for the use of suspended declarations of invalidity and the Asper Centre appears to have made a real impact. The majority embraces the Centre’s arguments for a principled approach that does not depend on the three categories outlined in Schachter. They also accept the need for allowing exemptions in appropriate cases when the government has justified the use of a suspension. Even the dissenting judges also acknowledged that the Asper Centre had been helpful in arguing for the need for exemptions from suspensions to prevent irreparable harm. The judgment cites both my own scholarship but also remedial scholarship from Grant Hoole my former LLM student and Carolyn Moulard my current doctorate student.”

Indeed, the ON v G case will undoubtedly be solidified as a significant development in constitutional law. The dissenting justices criticized the majority’s broad and vague remedial principles, but it will be up to the lower courts to further build on the majority’s foundations. There is no denying that ON v G has pushed the law on constitutional remedies to be more fair and rational, ushering in a new era of remedies from the courts.

Jeffrey Wang is a 3L JD Candidate at the Faculty of Law, and a former Asper Centre Clinic student. 

[1] Para 81.

[2] Para 94.

[3] Para 121.

[4] Para 133.

[5] Para 129.

[6] Para 131

[7] Para 148.

[8] Ibid.

[9] Paras 150-151.

[10] Para 175.

[11] Para 176.

Introducing our 2020 Summer Research Assistants

Posted on by Student

The Asper Centre welcomes four new research assistants for the summer of 2020. Despite these unusual times, everyone is busy with exciting projects, including two interventions at the Supreme Court of Canada.

Amy Jun Chen

Amy received her Bachelors of Arts and Science from McMaster University, where she developed her interests in constitutional law, public policy, and intersectional equity. Amy just completed her 1L year at U of T Law. On top of various research tasks and website duties for the Asper Centre, Amy is working on the Asper Centre’s upcoming intervention in R v. Chouhan. The case concerns the constitutionality of the abolition of peremptory challenges in jury selection, and whether this abolition infringes on ss. 7, 11(d), or 11(f) of the Charter. The abolition of peremptory challenges is a positive step towards creating more representative juries, as minority jurors can no longer be excluded from the jury panel without cause. Amy will also be working on the Asper Centre’s constitutional challenge to the voting age in Canada. Outside of law school, Amy enjoys listening to podcasts and playing Animal Crossing.

 

Adrienne Ralph

Adrienne just completed her 1L year, and is a graduate from McMaster University’s Arts and Science Program. This summer, she will be working on the Asper Centre’s intervention in the City of Toronto v. Attorney General Ontario case at the Supreme Court. This case is centred around the constitutionality of the Ontario Government’s 2018 decision to reduce the number of municipal ridings mid-election, particularly whether it infringes upon section 2b) of the Charter. Adrienne’s legal interests include constitutional, criminal, and labour law, especially their intersections with human rights and social justice. Beyond the law, she is an avid baker (don’t ask about her sourdough starter, though) and is passionate about public transit (definitely ask her about this). She is also the incoming Diversions Editor for Ultra Vires, the independent student newspaper of the Faculty of Law. Adrienne is very excited to be working with the Asper Centre this summer, especially on this case, as it has such potential to affect freedom of expression and election law in Canada.

Angela Gu

Angela completed her undergraduate studies at the University of Toronto, where she majored in Ethics, Society and Law and minored in French Studies and Environmental Biology. She has just completed her first year at U of T Law. This summer, she is working on a report summarizing the discussions from the Media Freedom Symposium held in March 2020 at the Faculty of Law. The report covers the current state of media freedom in Canada, as well as recommendations for moving forward. She is excited to delve into the nuances of media freedom, especially understanding the unique challenges posed by the online media ecosystem. Outside of the Asper Centre, she is volunteering at News Decoder, a non-profit that works towards promoting youth global citizenship education through media literacy and journalistic skills.  When not in front of her computer, Angela is perfecting her sourdough loaves and training to run a faster half-marathon. She’s ready to start delivering bread to friends within running distance.

Matthew Mohtadi

Matthew is a graduate from the University of Toronto, completing a double major in Criminology and Sociology. He has just completed his 2L year at U of T Law. This summer, Matthew is drafting a memo to consolidate the research of the Asper Centre’s Sex Workers’ Rights Student Working Group from the past academic year. The purpose of the memo is to provide potential public interest litigants with a constitutional analysis of the Protection of Communities and Exploited Persons Act (PCEPA). The PCEPA was created in response to the decision in Bedford v. Canada, and contains new provisions that criminalize the purchase of sexual services in Canada. The new provisions may still be unconstitutional as many of the harms identified in Bedford continue to be perpetuated. The memo will focus on how ss. 2(b), 7, and 15 of the Charter could be used to strike down these provisions of the PCEPA.