New social context reports explaining the “pernicious and widespread” impact of anti-Black racism in an offender’s life can be essential for imposing a fair sentence, but judges must not make sentences too lenient in order to deter serious gun crimes, the Ontario Court of Appeal said in a decision released Friday.
The reports, which the court hopes will be publicly funded and become a “common feature” when appropriate, can help judges understand mitigating reasons why an offence was committed and show that an offender has good potential for rehabilitation — both factors that can reduce a sentence.
But the final punishment must still reflect the danger gun crimes pose to the community, particularly the Black community, the special five-judge panel ruled.
“Any failure to unequivocally and firmly denounce serious gun crimes, like those committed by (the offender), through the punishment imposed, implies tolerance of those crimes when committed by certain offenders in certain communities,” the court wrote.
The case was about a 22-year-old Black man convicted of possessing a loaded handgun and sentenced to a year in jail and 18 months’ probation after the judge considered the impact of anti-Black racism on his path to committing the offence, including his constant fear of being attacked after growing up in a violence-plagued neighbourhood. The Crown appealed the sentence as being far too lenient for a serious gun crime.
Friday’s landmark decision centres on how judges can use the recently introduced social context reports, which are intended to provide the court with in-depth information about anti-Black racism in a specific place, like Toronto; how it manifests across sectors including child welfare, education, social housing, employment and the justice system; and how anti-Black racism specifically impacted an offender’s life and why they committed the offence.
The report on the experiences of Black Canadians in Toronto “bears reading and rereading by those called upon to prosecute, defend and sentence Black offenders, particularly young Black offenders,” the court said.
During the appeal some had argued the court should go further and devise a new sentencing framework for Black offenders, similar to one established by Parliament for Indigenous offenders, in recognition of parallels in overrepresentation in the justice system, ongoing discrimination, and “negative experiences with and a profound distrust of the criminal justice system.”
The court, however, decided a new sentencing approach was not needed for Black offenders and that anti-Black racism and the specific circumstances of an offender can be taken into account through the current, individualized sentencing process.
“What is new is the kind of information provided in reports like the two filed in this case and a judicial willingness to receive, understand, and act on that evidence,” the court said.
“There is no basis to conclude that Black offenders, or Black communities, share a fundamentally different view of justice or what constitutes a ‘just’ sentence in any given situation. The Indigenous offender’s culture and historical relationship with non-Indigenous Canada is truly unique,” the court wrote.
For some involved in the case, the decision is a sign of progress.
The ruling is a “significant step forward” for a justice system that has moved far too slowly to understand and address systemic anti-Black racism, said defence lawyer Faisal Mirza, who, along with Gail Smith, represented the accused, Kevin Morris, and who co-founded the Sentencing and Parole Project, which helps provide social context reports.
And while the decision doesn’t explicitly say it, he sees it as an acknowledgment of the judiciary’s long-standing failure to understand the experiences of Black people who become involved in the justice system.
“Judges, Crowns and defence counsel have to be responsible and educate themselves about this,” he said.
Smith agrees the decision sends an important message about the need for judges to have these reports and the context they provide at sentencing hearings — and that such reports should be funded and accessible.
But, she said, she disagrees with the court’s finding that the gravity of the offence is not diminished by evidence that sheds light on why a person chooses to commit a crime.
“To what extent do we hold an individual responsible for the negative experiences they have had, over which they had no control whatsoever?” she said. “In this particular instance, one gets the impression they weren’t fully convinced that the factors illuminated in the report had sufficient negative impact on Mr. Morris to have mitigated … I have trouble with that.”
In a statement, the Black Legal Action Centre (BLAC) said it was disappointed by the decision’s failure to set out a standardized framework for sentencing Black people.
“Canada’s courts have long recognized the pervasive role of anti-Black racism in the criminal justice system. And yet, Black people in Canada continue to be disproportionately represented in the system,” said Nana Yanful, BLAC’s legal director.
“The decision today falls short. Without a new or different sentencing framework, we are concerned that the recognition of anti-Black racism and consideration of historical, social and background factors of Black people will be of no consequence.”
“Under the weight of anti-Black racism, Mr. Morris had little option than to live his life as best he could having been influenced by the streets. His overall social circumstances, while not excusing his behaviour, have undeniably contributed to Mr. Morris being involved with the justice system today,” social worker Camisha Sibblis concluded in her report.
“Mr. Morris’s imagination for what he could become was significantly limited by fear, anxiety, and actual threats … early intervention might well have changed Mr. Morris’s trajectory and it appears as through anti-Black racism was a contributing factor in this omission.”
Morris, a 22-year-old Black man with no criminal record, was convicted of possessing a loaded handgun, which he had tried to throw away in a stairwell while fleeing police.
In 2018, Superior Court Justice Shaun Nakatsuru sentenced Morris to a period of 15 months in jail and 18 months of probation — reduced to a year in jail due to Charter breaches — after considering two expert social context reports, one about systemic anti-Black racism in Toronto and one specifically about the impact of such racism on Morris throughout his life, including his experience in the education system and being stabbed in 2013.
The Crown appealed the sentence as too lenient, arguing that the judge gave too much consideration of the impact of overt and institutional racism on Morris, and failed to reflect the seriousness of the offence.
The Ontario Court of Appeal agreed that the sentence was too short and increased it to two years, finding the judge was wrong to conclude Morris’s explanation for possessing the loaded gun — that he had a strong and constant fear of many people in his community, including the police, that was shaped in part by systemic anti-Black racism — made his conduct less dangerous or harmful and in less need of a sentence that sends a message of denunciation.
However, the court found the reports did provide valuable insight into why Morris made the choices he did, how those choices were influenced by anti-Black racism, and his ability to be rehabilitated.
“Considered without the social context evidence, Mr. Morris’s educational and employment achievements are meagre and his future prospects seem bleak,” the decision said.
“However, when Mr. Morris’s educational and employment background is considered in the context of the information provided by the Sibblis Report, a sentencing judge could determine that Mr. Morris’s trajectory, as it relates to education and employment, is more reflective of the institutional biases and systemic inadequacies faced by Mr. Morris than any lack of potential or interest on Mr. Morris’s part.”
The court said it hopes such reports can be “adequately funded” and a common feature of sentencing in appropriate cases, as long as they are objective, balanced and based on facts.
The panel noted that the federal government had previously indicated it would fund such reports in proposed legislation. The Liberals have said they would reintroduce that bill within the first 100 days of their new government.
“Hopefully, that commitment will be renewed and acted upon in the immediate future,” the decision said.
