An Ontario judge who is known for his heartfelt and eloquent written judgments has, for the second time, taken into account how racism may have factored into the actions of a black man found guilty of multiple gun offences, handing him a more lenient sentence.
“The tide of fear in our communities rises and falls with the tragedies that come with gun violence,” wrote Ontario Superior Court Justice Shaun Nakatsuru in a lengthy decision released on September 11.
“My role is to give expression to that fear. To condemn the crime and those who do it. But it is not my role to give in to that fear. No matter how strongly it seizes the community’s psyche,” he continued. “Reason must control emotion in sentencing. Because in our system, a sentence is not just about the crime. It must be also about the offender. It must be about the particular facts of the case.”
Kevin Morris was 22 at the time of his arrest in 2014 when he ran from police officers, who were responding to a call about a home invasion in Scarborough and tried to stop him and three other black men. He was eventually caught and cops found a jacket he’d tried to get rid of with a loaded gun inside it.
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Morris was sentenced to one year in jail after he was found guilty of a number of offences, including possession of a loaded and unauthorized firearm and carrying a concealed weapon.
Outlining the reasons for his sentence, Naskaratu wrote that Morris’s lawyers had asked him to take into account “the problem we have in the unfair and disproportionate jailing of Black offenders.” He considered two reports — one titled Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario and another called Social History of Kevin Morris — to determine the sentence.
After acknowledging that Morris struggled in school, Naskaratu took note of the issues raised in the first report, writing that he had no doubt that there were systemic failures in his education.
“I am not saying that your teachers were racist, uncaring, or that you do not share responsibility. Rather, I am recognizing the studies that show systemically this racism exists and have not served Black children well,” he wrote. “That failure in the education system makes a child vulnerable to becoming involved in the criminal justice system.”
He also took into account Morris’s father’s death when he was a child, his mother being absent because she had to work so much, as well as his upbringing in a poor neighbourhood with socioeconomic challenges that was affected by anti-black racism.
“Yours was affected by danger in the streets, both real and perceived.”
Because his father died and his mother was largely away from home, Morris became “vulnerable to the bad influences of others.”
“You are a follower and not a leader. Your feelings of frustration and powerlessness as you grew up in this environment made the possibility of possessing a gun real to you; something that given your life experiences, you decided that you wanted to do.”
Nakatsuru also addressed what the reports said about the negative relationship and distrust between black men in the community and police, as well as how Morris may have still been suffering from the after-effects of being stabbed in 2013, an incident in which he lost his spleen and part of his pancreas. He also took into account the way others described him.
“I have a fuller picture of you. These people speak of many good qualities. About the goodness of your heart,” wrote Naskaratu. “Your kindness. Your loyalty. Your selflessness. Your ability to connect with people. Your empathy.
“But you are also a worrier. You do have a temper. You isolate yourself.”
Based on the systemic issues raised in the reports, Nakatsuru said he understood that Morris didn’t feel he’d be treated fairly by police and reflexively ran from them. This distrust of the police may have also pushed him to ditch the gun.
“It was not a coldly calculated act to escape but one based upon emotion and a state of mind that has been shaped both generally and specifically by the historical racism suffered by Blacks and by you,” he wrote.
He defended what he acknowledged might be considered a “lenient” sentence, writing that “the young man who makes the choice to pick up a loaded illegal handgun will not likely be a product of a private school upbringing who has the security of falling back upon upper middle class family resources. Rather, he is likely to be a product of oppression, despair, and disadvantage. Likely he is someone who cannot turn his life around on a dime even if he wanted to. In short, he is you, Mr. Morris.”
Earlier this year, Nakatsuru also took systemic racism into account when sentencing Jamaal Jackson, who pleaded guilty to gun possession. He urged other judges to do the same.
Cover image of Quinte court house and the Superior Court of Justice in Belleville, Ont., on June 27, 2016. Photo by Lars Hagberg/The Canadian Press