Black people in Canada are overrepresented in the Canadian Criminal Justice System (CJS). According to a 2017 report by the John Howard Society, Black people are over represented in federal prisons by more than 300%, with similar statistics in provincial jails. This report also indicated this overrepresentation is increasing.
Recently, the Ontario Court of Appeal released its decision in R v Morris, a case considering whether judges can consider the impacts of systemic anti-Black racism in sentencing decisions. In Morris, the defence introduced two reports about anti-Black racism to the court as part of the accused’s sentencing.
In considering how this evidence can help the Court, the court held that social context evidence is a useful tool to help understand why a Black offender might have a different degree of responsibility for the crime they have committed. What these reports are really helpful at telling the court is how anti-Black racism has impacted the offender, and why it’s connected to the reason they are before the courts.
To their credit, the Court of Appeal acknowledged and named anti-Black racism in Canada’s CJS. They called this racism out, and acknowledged that it exists in Canada. They found that evidence of anti-Black racism and its impact on the offender being sentenced can be an important consideration in determining sentence with regard to the offender’s degree of responsibility, but there must be a connection between the systemic racism identified and the circumstances that are said to explain or mitigate the offender’s moral culpability.
Where the Court may have done a disservice to Black persons, though, is by finding that systemic racism does not mitigate the seriousness of the offence. It makes sense that the court would point out that some crime is very serious. But the way that Morris approaches this issue is almost to say that despite how much anti-Black racism an offender has faced, and no matter how connected that racism is to the crime, if the crime is too serious, we can’t discount the sentence too much to account for all of that racism. In other words, it allows for courts to continue to over-jail Black offenders. We say this because the decision seems to put a higher emphasis on what the crime is (i.e. how serious it is), as opposed to why the offender is committing this more serious crime. This reason won’t always be explained by race and racism, and where it can’t, a mitigated sentence won’t follow; but it could be. And the fear for defence counsel is that courts may interpret Morris in a way that says “okay, we acknowledge that you’ve faced anti-Black racism, and it’s even effected why you committed this really serious crime; but the crime is so serious that we can’t account for that racism when we sentence you.”
Naming and calling out racism is a great feat in and of itself. To that end, the Court of Appeal in Morris took a welcomed and overdue approach. We hope that in the future, though, the Court can realize that an acknowledgment of harms done isn’t always enough, and that redressing those harms through sentencing might be a just and appropriate way to truly be anti-racist. Even when we’re talking about serious crime.
Have you been charged with a criminal offence? Call DeMelo law to explore your options.
