Ontario’s Top Court to Hear Case That Deals with Sentencing Black Offenders

Ontario’s top court is set to grapple this month with just how much weight should be given to systemic racism when it comes to sentencing black offenders.

In a case that could change how judges punish black people, the Court of Appeal is scheduled to hear the Crown’s challenge to what it calls a manifestly unfit 15-month sentence handed to a black Toronto man for carrying a loaded firearm.

Last year, Superior Court Justice Shaun Nakatsuru handed Kevin Morris, a 26-year-old first-time offender, a sentence of 15 months in custody — further reduced by three months for charter breaches related to his arrest — on account of the disadvantages and systemic anti-black racism he had faced growing up in Toronto.

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The prosecutor had asked for a four-year sentence, arguing illegal gun possession is an urban scourge resulting in the “often immeasurable” human cost of gun crimes. The defence wanted 12 months.

Nakatsuru, after taking into account two expert reports commissioned by the defence, said he could not give into the community’s fear.

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Currently, the courts are required to take into account the backgrounds of Indigenous offenders before sentencing. A defence win in Morris’ appeal could lead to a similar requirement to assess the impact of race and culture on black offenders.

Such assessments — written by qualified experts — attempt to explain an offender’s experience with systemic racism and how that should factor into sentencing. {snip}

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According to a 2016 report by the Ontario Association of Children’s Aid Societies, black people make up 8.5 per cent of the Toronto population but represent 40 per cent of children in care. The expert report also stated black students are twice as likely to be suspended or expelled from school compared to white students.

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Still, the prosecution maintains there was no clear evidence of a link between systemic discrimination and Morris’s crime. The rise of gun violence in Toronto, the Crown argues in its factum, required the judge to have given an “exemplary sentence.”

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