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The Case for Race-Based Sentencing

In a case that could change how judges punish Black people, Ontario's top court will soon decide how much systemic racism should be taken into account when sentencing.

by Lidia Abraha
Oct 28 2019, 4:47pm

Illustration by Hunter French

Kevin Morris grew up with a single mother in a Toronto neighbourhood rife with gang violence.

Morris, 26, who is from Scarborough, was stabbed twice in his youth and never finished high school. It was unsafe for him to work because he had to travel through gang-affiliated neighbourhoods. He was critically stabbed for the third time in 2013, and a year later, was diagnosed with post-traumatic stress disorder, dysphoria, paranoia, and anxiety.

So when Morris was convicted of possessing a loaded gun, his first offence, Ontario Superior Court Justice Shaun Nakatsuru decided to reduce his sentence from four years to 15 months, noting the systemic disadvantages Morris faced in his life as a Black man growing up in Toronto. Morris’s sentence was further reduced to one year because police interrogated him after he had requested a lawyer.

To help make his decision, Nakatsuru used a cultural assessment of Morris, written by a clinical social worker and consisting of interviews and data that gave insight on him.

In his judgment, Nakatsuru wrote, “You began to notice how many were dying in your neighbourhood. Dying of violence. You did not have a lot of options. You decided you would live with it. That you would survive. Yet at the same time, you felt hopelessness.”

But in the spring the Crown will challenge that decision in the Court of Appeal, arguing that the judge was too lenient in his decision. If Morris wins, it could set a precedent for the use of cultural assessments in sentencing.

The Crown will argue that this is not the time to show leniency for gun crimes, in light of the rising rate of gun violence in Toronto. It wrote to the Court of Appeal that racial discrimination shouldn’t surmount to a “discount” in sentencing or excuse criminal conduct.

“The need for public protection, and deterrence and denunciation, in this case, demanded far greater weight than that given by the sentencing judge,” the Crown said.

But the defence says that the Crown failed to consider that Black people are more likely to experience prolonged and worse jail conditions, which perpetuate disadvantage.

“Our current and our historical, social circumstances together create an environment in which African Canadians are more likely to end up behind bars,” said Toronto-based criminologist Akwasi Owusu-Bempah, an expert on the case.

Owusu-Bempah says that Canadian courts have grappled with how systemic anti-Black racism should influence sentencing in previous cases, but Nakatsuru moved courts a step closer to building a framework for how cultural assessments can be used in Canada.

Earlier in 2018, Nakatsuru sentenced a Black man to six years in prison for possessing a loaded gun in breach of a probation order. The Crown had asked for nine years. The assessment described a man who was incarcerated for most of his youth and had a Grade 8 education.

A report submitted to the court in Morris’s case says Black people are disproportionately disadvantaged in Canadian employment, education, and the criminal justice system. In Toronto, the report says, 19 percent of Black Canadians are living in poverty even though they make up 8.4 percent of the population.

"If people are committing these acts in order to survive, where does moral right or wrong come in?"

Black people also are more likely to live in neighbourhoods with poor access to community centres, public libraries, hospitals, and good schools, which are integral to creating strong communities that protect people from the allure of crime, the report says.

“When does society become accountable for criminogenic factors, rather than blaming it all on the individual?” said Camisha Sibblis, a social worker who co-authored the report.

Sibblis says that since the courts assume everyone is equal under the law, they often fail to recognize the complexity of systemic racism.

“If people are committing these acts in order to survive, where does moral right or wrong come in? How do you then say that it’s wrong of me to do what I need to survive?” Sibblis said.

Nana Yanful, a lawyer for the Black Legal Action Centre, one of the 14 interveners on Morris’s appeal case, says that Morris’s case gives courts a chance to address the circumstances of Black offenders. She says the courts should stop asking if race can be a reason for leniency, and start to ask, if the offender wasn’t Black, how likely is it that they would be involved with the criminal justice system?

Judges in Canada already consider personal circumstances such as mental health, age, and past criminal record when sentencing an offender. Since 1999 judges have been legally obliged to consider the systemic disadvantages Indigenous offenders experienced before sentencing.

This is called the Gladue principle, and came into effect after a Cree woman pleaded guilty to manslaughter and was handed a three-year prison sentence. The Crown requested a conditional sentence, due to the offender’s history of substance abuse and lack of education. The judge did not grant the request, since she was off reserve at the time of the murder.

Black offenders make up 9% of the federal prison population, even though Black people only represent 3.5% of the population

But after the case went to the Supreme Court, and the sentencing decision was upheld, the court clarified a section of the Criminal Code that would allow judges to recommend restorative justice measures for Indigenous offenders, such as reduced sentencing.

There is no similar principle for Black offenders, who make up 9 percent of the federal prison population, even though Black people only represent 3.5 percent of the population. The Office of Correctional Investigators reported a 69 percent increase of Black inmates between 2005 and 2015.

While lawyers and judges can request cultural assessments, it’s up to the presiding judge to decide if it’s appropriate based on the circumstances of the case.

In Nova Scotia there has been a growing trend of judges considering cultural assessments in sentencing Black offenders. In one notable Nova Scotia Supreme Court case, Honourable Justice Jamie Campbell reviewed the cultural assessment of an African Indigenous man convicted of second-degree murder, before sentencing him to life in prison in 2017. Although the cultural assessment did not lead to a lighter sentence, it prompted “a judge to struggle with difficult questions for which there may not really be entirely clear answers,” the decision stated.

“That is why the cultural assessment is both a fascinating and a challenging document,” Campbell wrote in his judgment. “It provides information that makes it harder, not easier, to reach a conclusion. That is a good thing. The challenge comes from acknowledging the role that race plays in the prevalence of violent crime among young African Nova Scotian men while not falling into racist traps.”

Nova Scotia has been collecting data for cultural assessments since 2016, with 20 total requests. And requests have been increasing: In 2018 there were five requests for cultural assessments, while 11 have been requested so far this year.

A defence win in Morris’s case would set the same standard in Ontario, and also affect the disproportionate rate of incarcerated Black people in Canada.

“What we’ve been doing so far isn’t working. The disproportionate impact is leading to a disproportionate outcome,” Yanful said. “So let’s take a step back and see what the sentencing court, and what the criminal justice system can do to be able to address this issue meaningfully.”

Follow Lidia Abraha on Twitter.

Correction, October 29, 2019: A previous version of this story erroneously said Nova Scotia was legally obliged to consider cultural assessments. Counsel can request one but there is no obligation. Also, in the case of Justice Campbell’s decision, the cultural assessment did not lead to a reduction in parole eligibility. VICE regrets the errors.

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