Earlier this year, a Toronto jury found Kevin Morris (“Morris”), a 26 year old black man, guilty of several gun-related charges including possession of an unauthorized firearm, possession of a prohibited firearm with ammunition and carrying a concealed weapon. The jury acquitted Morris of assaulting a police officer with intent to resist arrest. Morris was sentenced to 15 months in jail. Predictably, there was an outcry in some media and corners of the criminal justice community that the sentence was too lenient and “soft on crime”. On September 11, 2018, several months after Morris’s conviction, Justice Shaun Nakatsuru, the trial judge, released his written reasons for the sentence, including why he spared Morris from serving time in a federal penitentiary. The reasons run twenty-one pages in length. At the end of the reasons, Justice Nakatsuru attached as an appendix a report entitled “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto,” written by three social scientists. The appended report, also runs 21 pages in length, excluding another 10 pages of footnotes.
The Crown objected to the admission of this report. The Crown also objected to the admission of a second report entitled “Social History of Kevin Morris”, written by one of the social scientists. The second report focussed on how systemic anti-black racism had affected Morris’s particular circumstances and led him to be where he is now. However, both reports were either admitted or considered by Justice Nakatsuru on the basis that sentencing judges should take a broader and more liberal view of materials that should be admissible at a sentencing hearing. The judge reasoned that the goal of a sentencing hearing is to arrive at a fit and proportionate sentence. Justice Nakatsuru concluded that the more he knew about Morris and his crimes, the better he could arrive at such a sentence. This was particularly important when it came to tackling the problem of the disproportionate imprisonment of black offenders.
Justice Nakatsuru described the facts of the case as being straight-forward. In December of 2014, four years earlier when Morris was 22 years old, the police received a call about a home invasion in Scarborough. As they were investigating the scene, the police came upon four black males walking in a parking lot. The police stopped the young men. Morris ran away. As he was running, Morris discarded his jacket, which police eventually recovered and found that the jacket contained a loaded revolver. Prior to trial, Morris brought a Charter application to stay the charges. Justice Nakatsuru did not stay the charges but did find some Charter violations that were relevant to the sentencing.
The Crown and the defence were far apart on the appropriate sentence. The Crown asked for 4 to 4.5 years in jail. The defence argued that the sentence should be 1 year before credit was given for the Charter breaches. At the sentencing hearing, the defence presented the two reports. The first report was written by Professor Akwasi Owusu-Bempah, Camisha Sibblis and Professor Carl James. They are all very qualified academics and experts in their field. Ms. Sibblis was the primary author of the second report. As to the first report which dealt with anti-black racism in Canadian society, Justice Nakatsuru agreed with the Crown that an expert report was not required at the sentencing hearing because the law has “now long taken notice of these sorts of things”. Justice Nakatsuru nevertheless found the report to be so useful that he attached it as an appendix to his reasons, noting “It is invaluable to have such a report available for every judge on every sentencing of a black offender.”. Justice Nakatsuru indicated that he agreed with the authors’ conclusions which he set out in his reasons in full. In part, the report concluded “that the social circumstances of Black Canadians in general, and of Black male Torontonians in particular, should be viewed as criminogenic…” and while “no one individual should be completely absolved of their own offending behaviour when it comes to offending behaviour, the social realities that have produced or contributed to such behaviour can be acknowledged, and serve to guide judicial decision making”.
The second report was intended to provide the judge with more information about Morris, the accused. The author provided her analysis as to the impact of systemic racism on Morris’s experience in and out of the justice system. Justice Nakatsuru admitted the second report, but with some qualifications. The judge indicated that he used his own independent evaluation of how systemic factors applied in Morris’s case and was free to disagree with what the author of the report had said. While Justice Nakatsuru found that the reports were helpful to him, he also held that we live in a real world of limited resources, and recognized that not every accused is going to be able to present such sentencing reports to the courts for their assistance.
Justice Nakatsuru held that in arriving at a fit sentence for Morris he was aware that the sentencing principles of general deterrence and denunciation was most important for offences such as these. In obiter he held that, “We have a serious problem with gun crime. Reducing gun crime and its associated violence, is a long game. Effective solutions take time, money and commitment. There is no one single solution in the short term.” He them commented on some of the issues that were responsible for gun crime including addressing social and economic inequalities and disadvantages, supporting smart and fair policing with adequate resources, dismantling gangs and getting at the reason why young people join them, and indicated that the problems are complex and the answers were not easy. The criminal justice system plays an important role not only to deter gun crime with fit sentences but to make sure the criminal justice system demands the respect of the people who look to is for solution.
Justice Nakatsuru ruled that when looking at the case in a principled manner, “broader systemic factors such as racism and the effects of colonialis must surely have some impact upon the application of general deterrence and denunciation". He recognized that criminal judges have limited tools available to them to meet the objectives of sentencing. But the law does not say that systemic and background factors should play no role in the assessment of the seriousness of the crime and the weight to be given to general deterrence and denunciation.
In arriving at the sentence for Morris, Justice Nakatsuru considered a number mitigating factors including the factors set out in the second report. In all of the circumstances he found that a sentence of 15 months was the fit and appropriate sentence in order to deter and denounce. After finding some Charter violations, Justice Nakatsuru reduced the jail sentence to 12 months accounting for the “dead” time that Morris had already spent in jail.
Justice Nakatsuru recognized that some would see the sentence as being too lenient. He responded, “In my opinion, we have to get past this idea of waiting for the perfect person to be lenient. Waiting for the most benevolent soul by the standards of the privileged and the few before we decide to extend consideration for leniency. For we may be waiting a long time.”
see R. v. Morris, 2018 ONSC 5186