CRIMES, COURTS, AND COMMENTARY
Interviews, current events, recommendations, and more --
all geared to the criminal law student community.
all geared to the criminal law student community.
6/13/2022 0 Comments Lessons from the R v Morris decision about Systemic Racism and Judicial DiscretionMarisa Benjamin
Background on the R v Morris decision and Section 718.2(e)
The 2018 Ontario Court of Appeal (ONCA) decision for R v Morris highlights a glaring gap in our law about how judges consider systemic racism when sentencing racialized offenders. This case provided a lens through which our panelists addressed the interplay between systemic racism and moments of judicial discretion throughout the criminal trial process. The Facts In 2014, Police detained and searched Kevin Morris, a 22-year-old Black man, in a parking lot, in connection with a nearby home invasion. Morris was not involved with the home invasion, but when the Police searched him, they found he was in possession of an unauthorized firearm. At the Ontario Superior Court, Justice Nakatsuru sentenced him to 15 months in prison, which was later reduced to a year, because the Police violated Morris’ Charter rights during the altercation. The Crown appealed and sought a new sentence of 3 years on the grounds that the trial judge’s decision was below what is typical for being in possession of unauthorized firearms - generally a 3 – 5-year custodial sentence. The Crown argued that Justice Nakatsuru erred by considering how systemic racism impacted Kevin Morris to give a more lenient sentence since there was no causal link between the systemic racism and Morris’ charges. Defence counsel responded by analogizing the situation to that in the 2012 Supreme Court decision, R v Ipeelee - which concerned sentencing Indigenous offenders - established that there did not need to be a causal connection between the criminal charges and systemic racism experienced by Indigenous offenders. Section 718.2(e) The Ontario Court of Appeal dealt primarily with the question of how to interpret section 718.2(e) of the Criminal Code in the context of Black offenders. Section 718.2 stipulates sentence considerations for courts, and part (e), specifically, requires courts to consider non-custodial alternatives (non-prison sentences) for all offenders, and particularly for Indigenous people. Courts can think about this provision in conjunction with Gladue principles, which explain how courts can go about finding alternatives to custodial sentences for Indigenous people, but we do not currently have a separate, similar framework for Black Canadians. Legal observers were anxious to see how the ONCA would decide R v Morris, thinking this could give us a step forward in developing principles for considering systemic oppression more broadly in sentencing. Holding and Impact of R v Morris Ultimately, the ONCA substituted the original sentence and sentenced Mr. Morris to two years less a day, plus probation. They recognized the role of anti-Black racism and came to several conclusions, including that judges can apply s. 718.2(e) by considering how the social context of the offender impacts their moral blameworthiness; however, their experience of systemic racism has no bearing on the seriousness or gravity of the crime. The ONCA also decided that Gladue only applies to Indigenous offenders, though courts can look to its principles to inform their approach to take anti-Black racism into account when sentencing. Takeaways from the Panel Discussion1. Have cautious optimism. Milestone cases like R v Morris are a part of the journey toward the progress we want to see.No case happens in isolation. Rather, they build on the work of the cases that came before, just as every lawyer takes inspiration from their predecessors. The R v Morris decision did not fundamentally correct the systemic racism issues we know are pervasive in criminal sentencing, but it did contribute an essential piece of what will be the foundation for better principles moving forward. There’s reason to be cautiously optimistic that the court’s language in recognizing anti-Black racism will be used to establish better reforms in the future. Seeing an acknowledgement of the impact of anti-Black racism in the Morris case is a monumental signal to new generations of lawyers that we can improve. We should not be satisfied or think that this is where the conversation ends. In fact, we should never really be thinking that way. In racial justice and equity work, we are never really done. Ultimately, every case is just about a single set of facts, so there is reason to believe that when another case comes up with different facts, courts may be ready to move forward and further in the right direction. 2. Courts need to treat evidence about experiences with systemic racism as essential when sentencing. Courts struggle with understanding how lived experience with systemic racism speaks to an offender’s moral blameworthiness. This kind of evidence is not easy to obtain or demonstrate, and it’s an uphill battle especially when judges start from the approach of considering the seriousness of the offence. The Crown should also not ask for a specific sentence without the benefit of information about the offender’s background and life circumstances. Evidence about the impact of systemic racism should be considered essential for understanding the circumstances surrounding an offence and, therefore, the sentence given. Lawyers have tried to figure out how to tell the court about what they see on the ground in terms of the impact of systemic oppression on their clients. Many people believe the courts are not the place to deal with social issues, but lawyers who work directly with people on a day-to-day basis know these problems need to be addressed in courtrooms. Work by Black scholars and social workers has been a game changer in putting this knowledge on court records. It will remain very important for communities to tell their stories about how systemic racism and oppression has brought them into contact with the justice system as we continue to push back against the idea that the seriousness of the offence must be treated as separate from the offender’s degree of responsibility. 3. Slowing down and discussing individual circumstances can help counteract the impacts of systemic racism. Most sentences, like many judicial decisions, are made in a ridiculously short amount of time and are based on very little information. Often, judges are provided with brief synopses of the case, and then the Crown makes a proposal and Defence counsel has an opportunity to respond. In that environment, thereis little time or space to develop arguments about how systemic racism has impacted the individual in front of the court. Judges and Crown counsel might not know anything about the lives that offenders have experienced, which has detrimental consequences for both the accused and the cause of racial justice generally. When judges learn something about the person, their perspective changes. Gladue reports are an example of how slowing down and showing courts individual circumstances of the offender can have successful results at mitigating the impacts of systemic racism in judicial discretion and sentencing. The purposes of Gladue reports are to present the offender’s individual circumstances to the court and propose viable alternatives to custodial sentences, like community-based programs and conditional sentences. They effectively intervene in the methodical, impersonal approaches to sentencing by providing judges with a basis on which they can make more equitable, informed decisions. There is a lot of inspiration courts can draw from Gladue reports. In fact, other jurisdictions like Australia have begun to adopt similar practices. 4. We need to remove general deterrence as a sentencing goal. The point was raised in the panel that the goal of general deterrence in sentencing should amount to an infringement of s. 7 of the Charter right not to be deprived of life, liberty, and security of the person, except in accordance with the principles of fundamental justice. Reasons include general deterrence being arbitrary, because criminological research has continually failed to support the notion that other offenders are dissuaded by a defendant’s harsh sentence or that they reduce crime rates, and it is overbroad because in many cases its application may actively subvert parliament’s intention to prevent crime by undermining individual rehabilitation. General deterrence is listed in the Criminal Code as one of the statutory goals to keep in mind when judges are issuing criminal sentences, and for many offences, courts of appeal have said it will be the primary objective. Judges often apply general deterrence as a reason to impose a harsher sentence even when the offender has brought evidence to show the other sentencing principles support a more lenient sentence. There is a straight line from the goal of general deterrence to why there is an overincarceration problem. Legislatively, general deterrence is the driving goal at the root of many minimum sentence provisions. Minimum sentence provisions prevent judges from using information about an individual’s circumstances, like their experience with systemic racism, to issue a more lenient sentence. Thus, when judges can exercise their discretion in sentencing, they can invoke the goal of general deterrence to impose a sentence they may believe is proportional to the gravity of the crime, without needing to give due weight to considering the offender’s individual circumstances that brought them before the court. If general deterrence remains an objective for sentencing, empowered and bolstered by the Criminal Code, judges will continue to be able to justify giving out harsher sentences. Furthermore, the unpredictability and inconsistency in defending against arguments in favour of general deterrence disproportionately impacts racialized people. 5.Our prison system needs to be reformed and judges must recognize the dire conditions in prisons when using their discretion.The conditions in prisons and pre-trial custody cause significant harm to offenders. Systemic racism is rampant in prisons and pre-trial custody, yet these issues are not discussed in courtrooms. In their careers, the panelists have come to understand how custodial conditions can be life-ruining. Lawyers who work with offenders consistently see how Black people talk about the racism inside, including how they are treated and demeaned by the guards and staff. By treating the conditions in the correctional system as if they are not the responsibility of the court and turning away from the problem, any sentence a judge imposes is disconnected from the goals of fostering rehabilitation and reducing recidivism. We need to start putting the realities of these conditions into court records and acknowledging how Black and Indigenous people are disproportionately impacted. Bonus! Some career advice…After the substantive law discussion ended, the panelists provided advice to the audience:
0 Comments
Your comment will be posted after it is approved.
Leave a Reply. |
Want to contribute? Pitch an idea to CLSA Blog Editors Ben Elhav & Nik Khakhar at [email protected] & [email protected].
|