Ontario's top court criticized for declining to require judges to consider anti-Black racism in sentencing

Ontario's top court says anti-Black racism must be confronted, mitigated and erased, but it has declined to set out a framework for taking it into account in sentencing. 

The Court of Appeal for Ontario was asked to contemplate the issue in the appeal over the sentence for a 26-year-old man for carrying a loaded firearm.

Kevin Morris had been in a parking lot with three other Black men in 2014 when police were investigating a home invasion. Morris ran from police and discarded his jacket, which happened to have a loaded gun in the pocket.

In the process, he was struck by a police vehicle and then arrested and charged with firearm offences. He had no prior criminal record.

The Crown sought a four-year sentence for Morris, but he was instead sentenced to 15 months, which was reduced to 12 months in consideration of Charter breaches.

Superior Court Justice Shaun Nakatsuru had taken into account the disadvantages and systemic anti-Black racism Morris had faced growing up in Toronto.

The Crown appealed, saying the sentence was "manifestly unfit."

Some intervenors in the appeal, including the Black Legal Action Centre (BLAC), called for a standardized framework for sentencing Black people.

In a statement Friday, BLAC said it was "disappointed" by the decision of the appeal court. 

"The Court failed to take a strong stance and ensure that every sentencing judge across the province meaningfully considers anti-Black racism when sentencing a Black person," it said in part. 

"From R. v. Parks in 1993 through to R. v. Le in 2019, Canada's courts have long-recognized the pervasive role of anti-Black racism in the criminal justice system. And yet, Black people in Canada continue to be disproportionately represented in the system," said Nana Yanful, BLAC's Legal Director. "The decision today falls short."

The Appeal Court says in its decision today that courts should give a "generous gateway" for admitting evidence about the effect of anti-Black racism on an offender, but the specific sentencing framework for Indigenous offenders does not apply to Black offenders.

The court increased Morris' sentence to two years less a day, but stayed the sentence, meaning he won't have to serve more time in jail.