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.

Ontario Court of Appeal Rules G20 Protester’s Rights Violated by Police

 

Ten years after Toronto hosted the G20 summit, a civil suit launched against the Toronto police has finally been resolved by the Ontario Court of Appeal. The decision—Stewart v. Toronto (Police Services Board)—represents a strong affirmation of the constitutional right to protest, especially in public spaces like parks.

The case arose out of the G20 summit held in Toronto in 2010. A group of activists had organized a public rally in Allan Gardens, a public park in downtown Toronto. Based on vague reports of potential violence by “Black Bloc” protesters, the police set up an indiscriminate perimeter around the park the day before the rally and required all those wishing to participate in the protest to submit to a search of their personal belongings. The police also seized items that they believed could be used to defeat the effects of tear gas and pepper spray, such as goggles, bandanas, and vinegar.

The police stopped the appellant, Luke Stewart, and told him they were searching all protesters under the authority of the Trespass to Property Act. Mr. Stewart refused to consent to the search, believing it to be unconstitutional. When he attempted to move past the police perimeter, he was forcibly detained. The police then searched his bag and confiscated a pair of swimming goggles.

Mr. Stewart brought a lawsuit against the police in 2011, seeking Charter damages for violation of his freedom of expression, right not to be arbitrarily detained, and right to be secure against unreasonable search or seizure. The Superior Court dismissed his claim in 2018, ruling that the police had the requisite search powers and did not infringe any of his constitutional rights.

The Canadian Civil Liberties Association (CCLA) intervened in this case at both the trial level and at the appeal, arguing for limits on the power of police to interfere with the rights of protesters.

Winston Gee headshot

Winston Gee

Winston Gee, an associate at Torys LLP and former Asper Centre Clinic student, presented the CCLA’s submissions at the hearing of the appeal.

In reasons written by Justice Brown, the Court of Appeal agreed with the CCLA that the police had no legal authority for their actions. It overturned each of the trial judge’s rulings and awarded Mr. Stewart $500 in Charter damages. The Court also affirmed the fundamental importance of free political expression, especially in public parks:

“Our civil liberties tradition recognizes that public parks, such as Allan Gardens, are civic spaces naturally compatible with the public expression of views, whether the content of those views support or dissent from the popular sentiments of the day… The freedom to engage in the peaceful public expression of political views is central to our conception of a free and democratic society. Freedom of expression requires zealous protection.”

Despite the low damages award, Gee was pleased that “the Court accepted one of our central submissions at the hearing—that the Trespass to Property Act does not create any substantive property rights but is merely a mechanism to enforce existing rights that come from other sources, such as the common law.” As a result, the Act could not be used by the police to impose “conditions of entry” of their choosing. That power properly belonged to the City as the common law owner and occupier of the park—and it is subject always to the Charter.

Gee said that his work on this case “benefitted immensely from my time at the Asper Centre. That’s where I first gained experience with appellate advocacy, including by learning from leading constitutional litigators like Mary Eberts and Marlys Edwardh. I also had the opportunity to assist with the Asper Centre’s intervention in Henry v. British Columbia (Attorney General), one of the Supreme Court’s leading cases on Charter damages. That experience was particularly relevant to this case.”

Gee also thanked his colleagues at Torys for providing excellent mentorship and for giving him the opportunity to argue such an important case.

by T. Schreier, with Winston Gee (JD/MPP UTLaw 2017)

Substantive equality in sentencing: Interventions in R v Morris and R v Sharma

By Teodora Pasca

This fall, the Asper Centre is intervening in two cases before the Ontario Court of Appeal (ONCA) whose outcomes could significantly impact the province’s approach to sentencing marginalized people.

In R v Morris, the ONCA will consider the appropriate manner in which systemic factors should shape the sentencing framework for Black Canadians. Morris was convicted of possession of illegal firearms and received a sentence of 12 months, reduced from 15 months for Charter breaches. Among other factors, the sentencing judge was mindful of the social context in which Morris committed the offence with reference to reports from psychologists and social scientists with expertise on Black racism in Canada.

In R v Sharma, the Asper Centre and the Women’s Legal Education and Action Fund (LEAF) are jointly intervening on a constitutional challenge to ss. 742.1(c) and (e)(ii) of the Criminal Code, which eliminate conditional sentences for certain offences. Sharma is an Indigenous biracial woman convicted of a drug importation offence who, but for these provisions, would have been a suitable candidate for a conditional sentence.

Despite the Supreme Court’s aspirations in Gladue, Indigenous people in Canada continue to be criminalized and incarcerated at alarming rates. In particular, the overrepresentation of Indigenous women in prisons has increased substantially over the past 10 years. The criminal justice system in Canada is designed in a manner incompatible with Indigenous laws and conceptions of justice, which can be deeply alienating.

Though their historical circumstances are different, Black Canadians also experience significant systemic discrimination and bias when dealing with police, in the courts, and in corrections. Nationally, the rate of incarceration for Black Canadians is three times greater than their representation in the overall population, and the overrepresentation is even more pronounced for Black women.

Morris and Sharma illustrate how the overarching principle of substantive equality can illuminate sentencing decisions in cases involving marginalized people. Substantive equality is a constitutional imperative that requires courts to analyze the potentially discriminatory impact of laws with regard to their social, political, and legal context. Substantive equality plays a vital role in the criminal justice system, including at the sentencing stage. These cases suggest that sentencing judges should be mindful of systemic discrimination at all stages of the process and the ways in which that discrimination might have impacted the individual or their circumstances.

Since the Gladue decision came down in 1999, courts have been constitutionally mandated to consider the role that historical disadvantage, discrimination, and alienation play in cases involving Indigenous offenders. More broadly, the principle of restraint in s 718.2(e) of the Criminal Code requires courts to consider all sanctions other than imprisonment that are reasonable in the circumstances; though it is particularly vital for Indigenous people, this provision applies to all offenders in all cases.

It is settled that systemic factors such as historical disadvantage can be considered in sentencing cases involving Black Canadians. The question is how. The Crown’s position in Morris is that contextual factors should be considered only if the offender can establish a causal link between those factors and the offence. The Supreme Court in R v Ipeelee previously rejected the “causal link” requirement in the context of Indigenous sentencing. The Asper Centre argues it is unfair to ask marginalized people to demonstrate their life circumstances “caused” their crime — a burden even experts struggle to meet — and has put forward more robust guidelines for considering these factors that is informed by substantive equality principles.

In Sharma, conversely, the ONCA will consider whether eliminating conditional sentences for certain offences is incompatible with the Gladue framework. The potentially discriminatory effect of ss 742.1(c) and (e)(ii) is to deprive Indigenous people of a reasonable alternative to jail, despite the firm conclusions in Gladue and Ipeelee that alternatives to imprisonment must be prioritized. Asper and LEAF argue that the constitutionality of the provisions must be assessed in light of systemic discrimination against Indigenous people — especially Indigenous women, who are alarmingly over-represented both as offenders and as victims. Alternatives to incarceration are particularly essential when the system criminalizes acts that Indigenous women often turn to for survival, due to factors such as high levels of poverty, food insecurity, and overcrowded housing, as well as extremely high rates of physical and sexual abuse.

Collectively, Morris and Sharma acknowledge that consideration of historical and social context can be invaluable to the sentencing process for marginalized people. Requiring sentencing judges to at least turn their mind to these factors allows them to make a more informed decision about what is best for the individual and for society looking forward. While imposing a “fit” sentence is already the goal of sentencing, requiring that substantive equality shapes the analysis can make that goal a reality.

The Asper Centre’s intervener facta can be found at this linkSharma will be argued on November 20 and Morris will be argued TBD.

Teodora Pasca is a 2L JD Student at the Faculty of Law