Moving Towards Substantive Equality in Sentencing: R v Morris Reading

What is the title of the Asper Centre article?

Moving Towards Substantive Equality in Sentencing: R v Morris.

Who wrote the article?

Bailey Fox.

When was the article published?

December 9, 2021.

What categories was the article listed under?

News; Criminal Justice.

What case is discussed in the article?

R v Morris, 2021 ONCA 680.

Which court decided R v Morris, 2021 ONCA 680?

The Ontario Court of Appeal (OCA).

What did the Ontario Court of Appeal consider in R v Morris?

The impact and role of anti-Black racism in sentencing.

On what issue did the Asper Centre intervene in the appeal?

The issue of whether an offender is required to prove a causal link between systemic racism and the offence.

How does the article characterize the decision in R v Morris?

The Court’s decision is both ground-breaking, in recognizing the impact of systemic racism in sentencing, but aspects of the decision also limit the impact it may have in realizing substantive equality.

What offences was Mr. Morris found guilty of?

Gun-related offences, including possession of a loaded handgun.

What did the pre-trial sentencing reports detail?

The impact of anti-Black racism on Mr. Morris’ life and actions.

What sentence did the sentencing judge impose on Mr. Morris?

A mitigated 15-month sentence.

Why did the Crown appeal Mr. Morris’ sentence?

The Crown argued that it was unfit and not commensurate with the seriousness of the offence.

What did the Ontario Court of Appeal decide after the Crown appealed?

The Court of Appeal agreed with the Crown and increased Mr. Morris’ sentence to two years but stayed the sentence.

What issues did the Court clarify in its lengthy reasons?

The role of anti-Black racism in assessing the offender’s blameworthiness, how to prove the impact of systemic racism, and the interaction between the fact of racism and sentencing principles.

What is the main tension introduced by the article?

The decision recognizes the impact of systemic racism in sentencing but also contains limitations that may restrict its contribution to substantive equality.

Why are aspects of R v Morris important for defence lawyers?

They are important for defence lawyers hoping to advance substantive equality in the criminal law.

What did the Ontario Court of Appeal acknowledge about anti-Black racism?

The existence and negative effects of anti-Black racism in society and in the criminal justice system.

How should anti-Black racism be considered in the sentencing process, according to the Court?

It should be considered in the sentencing process, specifically in assessing the offender’s moral blameworthiness.

What did the OCA hold about judges taking judicial notice of anti-Black racism?

Judges may take judicial notice of anti-Black racism.

What did the OCA hold about Black individuals having to tender expert reports?

Black individuals should not be required to tender expert reports detailing the existence of anti-Black racism and its impact on them.

Why is the Court's position on judicial notice important from an access to justice perspective?

It avoids requiring Black individuals to tender expert reports detailing the existence of anti-Black racism and its impact on them.

What did the Court hold about the need to prove a causal link between systemic racism and the relevant offence?

An offender need not demonstrate a causal link between systemic racism and the relevant offence.

How did the Court's holding on causation relate to the Asper Centre's submissions?

It was in line with the Asper Centre’s submissions and the objectives of substantive equality.

What did the Asper Centre submit about a causal link between systemic anti-Black racism and offending conduct?

An offender should not be required to prove a causal link between systemic anti-Black racism and the offending conduct.

Which other circumstances did the Asper Centre refer to when arguing that proof of a causal link is not required?

The case of youthful offenders and offenders with mental illness.

Why did the Asper Centre argue that requiring proof of a causal link is incompatible with substantive equality?

The requirement to prove a causal link is not compatible with the objectives of substantive equality.

What evidentiary burden would proving a causal link place on offenders?

While an offender may show evidence of how systemic factors affected them, a requirement to demonstrate a causal link would place an undue evidentiary burden on offenders.

How did the Court's reasons compare with the Asper Centre's submissions on causation?

In holding that a causal link is not required, the Ontario Court of Appeal’s reasons largely mirror the Asper Centre’s submissions on this point.

What did the Court state about the connection between systemic racism and criminal conduct in paragraphs 96–97?

While there must be some connection between systemic racism and the criminal conduct, causation “plays no role when considering the impact of an offender’s background or circumstances on sentencing” (para 96–97).

According to paragraph 99, what can social context evidence do?

Social context evidence can be useful in explaining the offence and mitigating the offender’s moral culpability.

What is social context evidence in the context of this article?

Evidence about an offender’s background or circumstances and relevant systemic factors that can help explain the offence and mitigate the offender’s moral culpability.

How did the Court limit the utility and scope of recognizing anti-Black racism in sentencing?

The Court held that sentencing judges may only take the role of anti-Black racism into account when considering the offender’s moral culpability but not in considering the seriousness of the offence (para 75).

What sentencing principles become more important as the seriousness of an offence increases?

The more serious the offence—and gun-related offences are generally considered more serious—the more a sentence should emphasize the principles of denunciation and deterrence.

What did the OCA hold about anti-Black racism and the evaluation of an offence's seriousness?

Anti-Black racism cannot reduce an evaluation of the seriousness of the offence.

What sentencing objectives remain important when sentencing Black individuals under the Court's reasoning?

Deterrence and denunciation remain important objectives when sentencing Black individuals.

What is denunciation in sentencing?

The sentencing objective of expressing society’s disapproval of criminal conduct.

What is deterrence in sentencing?

The sentencing objective of discouraging future criminal conduct.

What cognitive dissonance does the article identify in the Court's reasoning?

The decision maintains a cognitive dissonance between society’s collective responsibility for systemic racism and the individual’s conduct.

Why does the article criticize the view that anti-Black racism does not affect denunciation?

That anti-Black racism does not affect the principle of denunciation impedes both recognizing the impact of racism and addressing it.

What did the Court of Appeal signal by finding that the sentencing judge erred in considering anti-Black racism when assessing the seriousness of the offence?

The Court of Appeal signals that systemic racism can affect sentencing, but only to a point.

Did R v Morris explicitly invoke section 15 of the Charter?

No. The case did not explicitly invoke the Charter’s s.15 equality guarantee.

What does the article say about the Court's analysis of section 15, substantive equality, and sentencing?

The Court’s analysis is very thin on the interaction between s.15, and the goal of substantive equality, and sentencing.

What did the Court hold about whether judges may or must take systemic racism into account?

The Court held that a judge may take systemic racism into account and not that they must.

How does the article distinguish R v Anderson from R v Morris?

Unlike the Nova Scotia Court of Appeal’s decision in R v Anderson, 2021 NSCA 62, the Court in R v Morris did not go so far as to say that it is an error of law if a sentencing judge fails to consider the impact of systemic anti-Black racism.

What did the Nova Scotia Court of Appeal say in R v Anderson, as described in the article?

The importance of Impact of Race and Culture Assessments (IRCA) in crafting a sentence fit for the offender was upheld, and ignoring or failing to inquire about systemic and background factors would amount to error of law.

What responsibility remains with defence lawyers under R v Morris?

It remains the defence lawyer’s responsibility to raise the issue.

How much discretion does the sentencing judge retain under R v Morris?

It is within the sentencing judge’s discretion as to how to apply such considerations.

What potential consequence does the article identify from leaving the issue to defence lawyers and judicial discretion?

This could lead to uneven application of the Court’s findings in R v Morris.

What conventional narratives does the article say the Court's decision continues to rely on?

While recognizing the fact of systemic anti-Black racism, the Court’s decision also clings to some conventional individual responsibility and tough on crime narratives in sentencing, therefore limiting the impact of the decision.

What factual finding did the Court overturn regarding why Mr. Morris fled from the police?

The sentencing judge’s finding of fact on why Mr. Morris fled from the police.

What had the sentencing judge found about why Mr. Morris fled?

The sentencing judge had found that Mr. Morris fled at least in part because of an ‘impulsive reaction’ based on his fear of the police and that he would not be treated fairly.

What did the OCA decide about why Mr. Morris fled from police?

The OCA held that the ‘only reasonable inference’ is that Mr. Morris fled to avoid being caught (para 171).

What criticism does the article make of the OCA's conclusion about Mr. Morris fleeing?

The Court does not explain why this is the only reasonable inference, or why it was an error to consider the systemic racism often reflected in policing of Black communities in this finding of fact.

What did the Court say about the community's view of “more lenient” sentences for gun crimes?

The Court noted that members of the community would not consider “more lenient” sentences for gun crimes as advancing social equality (para 85).

What is the first criticism of the Court's statement about “more lenient” sentences?

This finding reflects and embeds an understanding of conditional sentences as lenient, as opposed to commensurate with the offender’s circumstances.

What is the second criticism of the Court's statement about community views?

It assigns a ‘tough on crime’ perspective to the community without considering the impact of incarceration on community well-being.

What does “commensurate with the offender’s circumstances” mean in the context of the article?

A sentence that appropriately reflects the offender’s circumstances, rather than automatically treating a less severe sentence as lenient.

How does the article argue that conventional individual-responsibility and “tough on crime” perspectives limit the decision?

In embedding these perspectives in a decision while also recognizing that anti-Black systemic racism may be considered in sentencing, the Court limits the reach of the latter finding.

What conventional narratives does the article say the Court's decision continues to rely on?

While recognizing the fact of systemic anti-Black racism, the Court’s decision also clings to some conventional individual responsibility and tough on crime narratives in sentencing, therefore limiting the impact of the decision.

What factual finding did the Court overturn regarding why Mr. Morris fled from the police?

The sentencing judge’s finding of fact on why Mr. Morris fled from the police.

What had the sentencing judge found about why Mr. Morris fled?

The sentencing judge had found that Mr. Morris fled at least in part because of an ‘impulsive reaction’ based on his fear of the police and that he would not be treated fairly.

What did the OCA decide about why Mr. Morris fled from police?

The OCA held that the ‘only reasonable inference’ is that Mr. Morris fled to avoid being caught (para 171).

What criticism does the article make of the OCA's conclusion about Mr. Morris fleeing?

The Court does not explain why this is the only reasonable inference, or why it was an error to consider the systemic racism often reflected in policing of Black communities in this finding of fact.

What did the Court say about the community's view of “more lenient” sentences for gun crimes?

The Court noted that members of the community would not consider “more lenient” sentences for gun crimes as advancing social equality (para 85).

What is the first criticism of the Court's statement about “more lenient” sentences?

This finding reflects and embeds an understanding of conditional sentences as lenient, as opposed to commensurate with the offender’s circumstances.

What is the second criticism of the Court's statement about community views?

It assigns a ‘tough on crime’ perspective to the community without considering the impact of incarceration on community well-being.

What does “commensurate with the offender’s circumstances” mean in the context of the article?

A sentence that appropriately reflects the offender’s circumstances, rather than automatically treating a less severe sentence as lenient.

How does the article argue that conventional individual-responsibility and “tough on crime” perspectives limit the decision?

In embedding these perspectives in a decision while also recognizing that anti-Black systemic racism may be considered in sentencing, the Court limits the reach of the latter finding.

How does the article characterize R v Morris overall?

R v Morris is a promising step in the direction of promoting substantive equality in sentencing.

Which two findings does the article identify as promoting consideration of racism in sentencing?

The Court recognized that judges may take judicial notice of anti-Black racism and that offenders need not prove a causal link.

What does the article say the Court's recognition of systemic racism may promote?

Consideration of racism in sentencing.

How did the Court limit the impact of its findings, according to the conclusion?

In limiting the role of systemic racism in the sentencing process while clinging to a tough on crime perspective, the Court limited the impact of its finding.

What did the article conclude about the potential for achieving substantive equality in sentencing?

The Court limited the impact of its finding therefore inhibiting the potential for achieving substantive equality in the sentencing process.

What is the article's overall assessment of the relationship between R v Morris and substantive equality?

The decision is a promising step toward substantive equality, but its limits on the role of systemic racism and its retention of a tough on crime perspective restrict its potential impact.

What was Bailey Fox's role at the time of writing?

Bailey Fox was a Research Assistant with the Asper Centre and was currently an LLM student at the University of Toronto, Faculty of Law.

What is the difference between moral culpability and seriousness of the offence in the Court's reasoning?

The Court held that anti-Black racism may be considered when assessing the offender’s moral culpability, but not when evaluating the seriousness of the offence.

What is the difference between saying judges “may” and “must” consider systemic racism?

“May” leaves consideration to judicial discretion; “must” would require judges to consider systemic racism. The article criticizes R v Morris for holding that judges may consider it rather than requiring them to do so.

What is the difference between considering systemic racism and requiring proof that it caused the offence?

The Court held that systemic racism can be considered in sentencing without requiring the offender to demonstrate a causal link between systemic racism and the offence.

What is the difference between judicial notice and requiring expert reports?

Judicial notice allows judges to recognize anti-Black racism without requiring Black individuals to tender expert reports detailing its existence and impact on them.

Why does the article view the decision as both promising and limited?

It recognizes the impact of systemic anti-Black racism in sentencing and removes the requirement to prove a causal link, but limits the role of racism in sentencing and retains conventional individual-responsibility and tough on crime narratives.