Lisa Kerr is an assistant professor at Queen’s University’s Faculty of Law.
The most surprising thing about the Ontario Court of Appeal’s landmark decision in R. v Morris isn’t that the legal system has confirmed that the corrosive effects of anti-Black racism may be important for judges to consider when sentencing Black defendants. It’s that it took so long to make explicit that sentencing courts must receive, understand and act on evidence of this kind, when that had already long been settled by law.
The case involved Kevin Morris, a young Black man who was found guilty at the Ontario Superior Court of Justice for offenses arising out of the possession of a concealed loaded handgun. In a busy urban area of Toronto, Mr. Morris – who had no prior criminal record – tossed the gun and briefly fled from police. It all added up to clearly dangerous conduct. At his trial in 2018, the Crown prosecutor asked for a sentence of four to four-and-a-half years in prison.
Mr. Morris’s lawyers, Faisal Mirza and Gail Smith, defended their client by pointing to evidence about how racism affects the key institutions of education, child welfare, employment opportunities, living conditions, interactions with police and experiences in prison. They carefully tied that general evidence about the collective experiences of Black Canadians to the specific case. They showed that Mr. Morris’s decision to carry the gun was born from strong fears of, among other things, the police. He had little hope for the future and was in a precarious mental state at the time after being seriously injured in a stabbing.
Mr. Morris’s parents came to Canada from modest backgrounds in Jamaica, and his father died when Mr. Morris was just seven years old. While his mother worked long hours, he faced extraordinary struggles in school that were never addressed. Still, Superior Court Justice Shaun Nakatsuru found reason to hope, imposing a sentence of one year, reasoning that Mr. Morris’s background reduced his moral blameworthiness.
He told Mr. Morris – in an unusual manner, addressing the defendant directly and respectfully rather than abstractly in the third person – that he was “far from a hardened criminal.” One senses that the judge knew that four years in a federal penitentiary would change that.
The Crown appealed Justice Nakatsuru’s decision, but in the hearing that followed, the opposing lawyers actually agreed on a great deal. Crown prosecutor Roger Shallow acknowledged that anti-Black racism is real and that it has destructive effects on people’s lives. Defense counsel urged the court to uphold an approach to sentencing that would account for Mr. Morris’s “life of profound hardship.”
Ultimately, in its Friday decision, the Ontario Court of Appeal disagreed with Justice Nakatsuru on some key issues, increasing Mr. Morris’s sentence to two years less a day (but also staying the sentence). The court agreed that societal factors were relevant to Mr. Morris’s moral responsibility, but held that the severity of an offense is a separate matter.
But it also affirmed that “an offender’s life experiences can certainly influence the choices made by the offender...” and that ”those life experiences can include societal disadvantages flowing from systemic anti-Black racism in society and the criminal justice system.”
The appeal court’s commitment to the tenets of individualized treatment in the legal system continues a trend around considering broader circumstances. In the 1999 R. v Gladue decision, the Supreme Court of Canada effectively instructed sentencing judges to pay attention to how state programs of colonialism, displacement and residential school have affected generations of Indigenous people, including many defendants in criminal court. The idea behind the decision was simple but transformative: make sure that sentencing judges have the information they need to impose a fair sentence on the person standing before them. And last year, the federal government committed $6.6-million to funding enhanced sentencing reports, to produce “better-informed sentencing decisions based on an understanding of the adversities and systemic inequalities that some Black Canadians and members of other racialized groups face.”
The official rules of sentencing have not changed. Canadian sentencing courts have long been willing to consider factors like family disorder and limited life opportunities at sentencing, but until Gladue and now Morris, the “circumstances of offenders” did not include analysis of the multi-faceted, life-altering effects of colonialism and structural racism. For too long, the legal system was only willing to scratch the surface of the forces shaping the lives and choices of defendants. It was due time for the law to dig deeper and change, and R. v Morris begins that work.
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