Ontario case could set special rules for sentencing black offenders

‘When it comes to black people, the sentencing seems to be consistently void of any consideration of that additional source of disadvantage that they face’

What was set to be a simple appeal of a sentence for possession of a loaded handgun has burgeoned into a major push for judges to acutely focus on systemic racism against visible minorities when passing sentence, similar to special rules in place for Aboriginal offenders.

Eleven prominent human rights, legal and ethnic organizations have been granted special status in the government’s appeal of a “lenient” sentence of a black man in Toronto last year.

“As a general rule, interventions in criminal proceedings should be granted sparingly,”

Ontario’s Chief Justice George Strathy wrote in a brief ruling on interveners released Tuesday.

“But the issues that arise in this appeal transcend the interests of the parties and are of significance to the administration of criminal justice. The proposed interveners are well-recognized organizations with experience and expertise in the issues raised in this appeal. They can offer perspectives that are different from those provided by the Crown and the respondent.”

The appeal stems from the sentencing of Kevin Morris, who was caught with a loaded handgun after fleeing police in 2014 in Toronto.

Last September, after a jury found him guilty, Ontario Superior Court Justice Shaun Nakatsuru specifically gave Morris, then 26, a self-declared “lenient” sentence of one year to address “one small step at a time, the problem of the disproportionate incarceration of black offenders.”

Nakatsuru’s lengthy sentencing decision was an impassioned declaration of the struggle to balance the public’s outcry over gun violence with systemic racism against young black males.

“I know that some may accuse me of being soft on crime. On gun crime. I do not believe that is so,” Nakatsuru began his decision that sparked the appeal.

“Recognizing, as the law must, that individuals are held responsible for the acts they commit that breach the criminal law, the reality is that this choice to act may be constrained by an offender’s life circumstances,” he wrote.

“These are systemic and case-specific factors that lessen your moral blameworthiness for this offence and soften the impact of general deterrence and denunciation.”

The Crown had sought a four to 41/2-year prison term for Morris and appealed the sentence. The Crown, however, did not object to the interveners.

Morris’s appeal, the Crown told Strathy, provides an opportunity “to develop a clear analytical framework that provides guidance to trial judges on how systemic and background factors may be properly applied to the sentencing.”

The reality is that this choice to act may be constrained by an offender’s life circumstances

Strathy noted that the Crown’s position “suggests that recent cases in this province and elsewhere in Canada have been inconsistent in their treatment of the issue.”

Faisal Mirza, lawyer for Morris, said in an interview that he hopes the outcome of the appeal will fix an obvious “flaw” in the judicial system.

“All it means is giving the people who have to decide someone’s fate the full information. It doesn’t mean the person is not going to face stiff consequences.

“People are still going to get punished and separated if they do something violent, that’s not going to change, but it is going to make our system better because it would mean we are sentencing people on the right information.”

Aboriginal and black people are disproportionately before the courts and in jails, courts have long noted.

Ever since a Supreme Court of Canada decision called R. v. Gladue, when sentencing Aboriginal offenders, judges across Canada must pay particular attention to individual circumstances as well as systemic or historical factors such as colonialism, residential schools and systemic racism.

“The sad part is our system hasn’t really figured out a way to deal with that when it comes to black people,” said Mirza.

“When it comes to black people, the sentencing seems to be consistently void of any consideration of that additional source of disadvantage that they face.”

He expects arguments at the appeal to deal specifically with anti-black racism in the judicial system despite some interveners representing other minority groups.

It doesn’t mean the person is not going to face stiff consequences

Jonathan Shime, Nana Yanful and Lori Anne Thomas are representing a joint submission at the appeal from the Black Legal Action Centre and the Canadian Association of Black Lawyers.

“This case represents an opportunity for the Ontario Court of Appeal to consider what role race and, more particularly, anti-black racism should play in the sentencing of offenders,” Shime said in an interview.

His team supports having something similar to Gladue reports for black people who have been found guilty of crimes, where judges have “some analysis that will properly take into account the history of the black experience in Canada, including slavery and other features of the black historical experience in Canada.”

The Ministry of the Attorney General declined to discuss the appeal.

“As this matter is before the court, it would be inappropriate to comment,” said Brian Gray, a ministry spokesman.

Because the intervener applications were made after the appeal was scheduled, each group will be restricted to five minutes of oral submissions and up up to 15 pages of written submissions.

The organizations accepted as interveners are: The David Asper Centre for Constitutional Rights, Criminal Lawyers’ Association, Aboriginal Legal Services, South Asian Legal Clinic of Ontario, Chinese and Southeast Asian Legal Clinic, Colour of Poverty/Colour of Change Network, The Black Legal Action Centre, Canadian Civil Liberties Association, Canadian Muslim Lawyers Association, Urban Alliance on Race Relations and Canadian Association of Black Lawyers.

The appeal is scheduled for Sept. 24 in Toronto.

Written by: Adrian Humphreys

First published 20.06.19: https://www.lacombeglobe.com/news/ontario-case-could-set-special-rules-for-sentencing-black-offenders-similar-to-gladue-for-indigenous-people/wcm/d876a872-8d08-4b89-9f6d-fdccef06151c

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