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.

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.