R v Morris: Systemic Racism and the Sentencing of Black Offenders
The Ontario Court of Appeal [“ONCA”] opens the case of R v Morris, 2021 ONCA 680 [“Morris”] with a revolutionary admission that “it is beyond doubt that anti-Black racism […] continues to be, a reality in Canadian society, and in particular the Greater Toronto Area” (Morris, para 1). The appellate court’s powerful declaration is announced with the aim of anti-Black racism being “acknowledged, confronted, mitigated and, ultimately, erased” (Morris, para 1). The vital question answered in the case at hand is – how should trial judges take into consideration evidence of anti-Black racism at the sentencing stage of a criminal prosecution.
Facts & Procedural History
This case is appealed from the Ontario Superior Court of Justice to the ONCA and for a detailed account of the trial arguments please read my colleague, Priyanka Sharma’s thoughtful and detailed account here.
The Police’s Version of Events
On December 13, 2014, police were contacted by a man who claimed that he had been the victim of a home invasion and described the robbers as four Black men (Morris, para 14). In response, two plain clothes officers in unmarked vehicles located four Black men walking in a parking lot that happened to be in the vicinity of the robbery (Morris, para 15). One of the men was Mr. Morris who, when approached, attempted to flee and subsequently ran into an officer’s vehicle (Morris, para 16). Mr. Morris then scaled a fence and ran into the parking lot of a No-Frills grocery store, where officers continued their pursuit (Morris, para 17). Mr. Morris then ducked into a stairwell and removed his jacket, whereupon he, the accused, was apprehended. Police later recovered from the stairwell a jacket, which contained a loaded .38 Smith & Wesson handgun (Morris, para 20).
The Accused Version of Events
Mr. Morris at trial told a different story, in which he was finding a place to urinate and was knocked over by a police vehicle (Morris, para 21). Due to this interaction, he ran in fear thinking he was about to be attacked (Mr. Morris had been stabbed 22 months earlier) (Morris, para 21). The accused claimed the occupant of the vehicle did not identify themselves as a police officer, nor did he have any reason to believe it was law enforcement (Morris, para 21). Later, he claimed that as he was fleeing, Mr. Morris realized it was a police officer and stopped, to which the police officer tackled him and struck him several times (Morris, para 22). Mr. Morris denied throwing a jacket into a stairwell, hiding in the stairwell of the No Frills parking lot and possessing a gun (Morris, para 24).
The Ultimate Factual Determination at Trial
The Trial judge made a finding of fact on the following points (Morris, para 27-32):
- Two plainclothes officers lawfully investigating the robbery approached Mr. Morris.
- The plainclothes officers identified themselves as police officers and Mr. Morris understood this.
- Mr. Morris then was chased until he was arrested by the police.
- Mr. Morris threw his jacket into a stairwell of the No-Frills parking lot.
- A vehicle did strike Mr. Morris purposefully and run over his foot. This was not caused by the accused running into it.
- Claims of excessive force were rejected.
The Social Context Evidence
Two reports were tendered for the sentencing of Mr. Morris: (1) “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario” and (2) “Social History of Kevin Morris” (Morris, paras 39-44). The former report provides “an historical and social account of the Black experience in Canada” (Morris, para 39). This means the report exposed the racist attitudes and practices in institutions and larger society that continue to marginalize Black Canadians. It further explored how criminogenic factors, such as poverty, lack of employment opportunity and strong police presence contribute to the over-incarceration of Black Canadians (Morris, para 40-41). The latter report, which is authored by Camisha Sibblis, a social worker and PhD candidate, set out Mr. Morris’ social history and life trajectory whilst being faced with systemic racism. For example, Mr. Morris was stabbed in 2013 and thereby finds the community he grew up in as dangerous and threatening (Morris, para 48). To add to this, systemic racism and institutional bias against black individuals has left Mr. Morris with distrust of the police and fear (Morris, paras 49-50).
The sentencing process requires a judge to undertake a highly specific and focused task, wherein a sentence is tailored to individual offenders and their offence (Morris, para 56). A fit sentence is governed by “the fundamental tenets of criminal responsibility, including free will, and the purposes, principles and objectives of sentencing laid down in Part XXIII of the Criminal Code, RSC 1985, C C-46 [“Criminal Code”] (Morris, para 56). In particular, section 718 establishes that “just sanctions” will have one of the following objectives defined in the provision (Morris, para 58):
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Furthermore, a judge must be guided by the principle of proportionality, which is laid down in section 718.1 (Morris, para 59):
“A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
Additionally, the Criminal Code sets forth in 718.2(b)-(e) guiding principles to be used in conjunction with the aforementioned sections:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances [the parity principle];
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh [the totality principle];
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances [the restraint principle]; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders [the restraint principle as applied to incarceration].
The ONCA’s Reasoning
In the ONCA’s judgement, the proportionality principle is emphasized and is comprised of two rationales – proportionality to(1) the gravity of the offence and (2) the degree of responsibility of the offender (Morris, para 61). Under the gravity of the offence prong, the more serious and harmful the prohibited act, the more censorship is required (Morris, para 67). In particular, gun crimes (possession of loaded firearm and concealed firearm) necessitates denouncement and deterrence due to their threat to public safety, thereby requiring imprisonment (Morris, paras 69-71). Social context evidence, on the other hand, impacts rehabilitation of an offender and does not lessen denunciation and deterrence (Morris, paras 79-82). The appellate court notes that accepting arguments that lessen denunciation and deterrence would result in Black offenders receiving shorter jail sentences in comparison to similarly situated non-Black offenders (Morris, para 84).
Although social context evidence is rejected in the gravity of offence prong, it is wholeheartedly accepted in the responsibility of the offender prong (Morris, para 87). Social context evidence operates to account for an individual’s characteristics (background, family, education, employment, mental health, etc.) and account for macro inequalities (e.g., systemic racism due to colonial discourses) (Morris, paras 88-92). The appellate court quotes Rosenberg J.A. in Borde stating “both systemic and background factors that may have played a role in the commission offence” are reviewed (Morris, para 92). There is no requirement that a direct causal link be established between the offence and the negative effects of anti-Black racism (Morris, para 96). However, an accused must establish “some connection” between overt and systemic racism and the circumstances surrounding the criminal conduct (Morris, para 97). Social context evidence therefore has bearing on an offender’s responsibility as it can mitigate an offender’s “personal responsibility and culpability for the offence” (Morris, para 99).
Moreover, the appellate court extends social context evidence as being “relevant on sentencing even if it does not tend to mitigate the offender’s moral culpability” (Morris, para 102). For instance, the accused’s lack of educational and employment background reflects that institutional biases and systemic racism continues to pervade Canadian society (Morris, para 104). By utilizing the social context evidence, a judge can be better situated to understand how anti-Black racism impacts an offender and how they found themselves committing a prohibited act.
Furthermore, some interveners argued that the similarity in circumstances between Indigenous offenders and Black offenders (e.g., over-incarceration, police abuse and pervasive racism) means that 718.2(e) should apply to Mr. Morris. The appellate court disagreed and found that Indigenous offenders are uniquely situated from Black offenders, even though both groups share similar oppression (Morris, paras 117-119). But the jurisprudence and laws surrounding the sentencing of Indigenous offenders can be used to inform the sentencing of Black offenders (Morris, para 123).
Another issue impacting the social context evidence is the admissibility of Ms. Sibblis’s report. The Crown argued that Ms. Sibblis was tendered as an expert witness but does not possess qualifications in the areas for which she gave opinions (Morris, para 132). The court found that laying out evidence about Mr. Morris’s life brought relaxed rules of evidence and did not require particular expertise (Morris, paras 133-135). One of the benefits of Ms. Sibblis’s reports was that it “enhances the sentencing judge’s understanding of Mr. Morris. A better understanding of the offender is always a good thing on sentence” (Morris, para 137). However, the ONCA did note that Ms. Sibblis’s opinion on Mr. Morris’s “mental state and his specific state of mind” required expertise beyond her credentials (Morris, para 140). A report must also maintain objectivity and cannot advocate on an offender’s behalf. The author must distinguish between offender’s perceptions and that from their own (Morris, para 145).
Finally, the court reviews the trial judge’s alleged errors in providing a 12-month sentence to Mr. Morris. First, systemic racism can impact the degree of responsibility of an offender and not the gravity of the offence (Morris, paras 149-153). The trial judge erred in depreciating the seriousness of the offence and thereby fell below the range described for similar cases like in Nur and Smickle (Morris, para 152). For example, the fear that caused the accused to possess a loaded firearm did not “render denunciation less important” (Morris, paras 164-165). At the same time, the trial judge overstated the lack of Mr. Morris’s ability to choose to arm himself or not (Morris, para 152). Second, the trial judge accepted that Mr. Morris was remorseful, but failed to have appreciated that remorse is only meaningful when it is accompanied by an acceptance of responsibility (Morris, para 157). The accused had falsely accused the police of planting a firearm and engaging in other serious misconduct (Morris, paras 158-159). Third, the trial judge refused to find Mr. Morris’s flight from the police and disposal of the gun as an aggravating factor (Morris, para 168). The fact that Mr. Morris fled from the police while in possession of a handgun increases the risk of confrontation and represents a threat to public safety (Morris, para 170).
In conclusion, the ONCA found that the “trial judge could have imposed a sentence ranging from a sentence at or near the maximum reformatory term, to a penitentiary sentence of three years” (Morris, para 180). To add to this, if the sentence is at or below two years then the sentencing judge can consider a conditional sentence and probation is necessary (Morris, paras 180-182). The decision by the appellate court represents a move towards accounting for racism against Black offenders in the Canadian criminal justice system. However, the court’s efforts to ameliorate disadvantage represents a band-aid solution as structural change will only be achieved when all of society eliminates racism.