Systemic racism is not irrelevant in sentencing Black offenders

Earlier this month, almost 30 years after the Ontario Court of Appeal ruled that wide-spread anti-black racism was a grim reality in Canada, racism was again on trial in Ontario’s highest court.

In the 1993 Parks case, the Court of Appeal ruled that it was an error to deny racialized accused people the ability to ask potential jurors if they were racist.

The Crown had argued that, despite the government’s acknowledgement that systemic racism was a real and pressing problem, the jury inquiry would “inject racial . . . overtones into a case where none existed previously.”

It was an absurd argument born of privilege. It is hard to counter the insidious impacts of racism if you are too scared to look for it.

Over the last 15 years, I have questioned hundreds of potential jurors about racial bias. The questions have never “injected racial overtones” into the trial process, but the questions have indeed uncovered racism, with dozens of jurors disqualified because of admitted racism — which would have gone undetected if the government had won the day in the Parks case.

So, it is exhausting to find ourselves back in the Court of Appeal arguing about just how much consideration should be given to systemic racism when it comes to sentencing Black offenders.

In 2014, Kevin Morris, a young Black man, was walking through a Scarborough parking lot. Police were in the area too, responding to a home invasion call. Morris was not involved, but when he saw the police he ran. The police chased Morris hitting him with the police car. Ultimately Morris was detained and the police found a handgun.

In one of the most articulate and persuasive decisions I have ever read, Justice Nakatsuru rejected the officers’ claim that Morris ran into the police car. Instead, the court found the police acted aggressively. Importantly, the police admitted they had no grounds to arrest Morris, the police had not seen him commit any crime, they only wanted to detain him for investigation — because he ran. 

The legacy of colonialism, slavery, and discrimination continues to impact Black people in Canada. Black children are disproportionately more likely to live in poverty, be discriminated against by the educational system, and encounter the justice system. Black people, especially Black males, are way more likely to be stopped by the police, even when they have not committed any crime. Black offenders are more likely to be charged with offences and are more likely to be incarcerated than white offenders. Black kids are more likely to run from the police.

These were some of the gut-wrenching facts before Justice Nakatsuru, expertly detailed in a compressive report by Akwasi Owusu-Bempah, Ph.D. Assistant Professor, Department of Sociology, University of Toronto; Camisha Sibblis RSW, MSW, Ph.D. (c), Faculty of Social Work, York University; and Dr. Carl James, Ph.D., Professor, Jean Augustine Chair in Education, Community and Diaspora at York University, Fellow of the Royal Society of Canada.

Morris asked the court to take this racism into account when crafting the appropriate sentence and to acknowledge, as Justice Nakatsuru ultimately found, that “social structures and societal attitudes that were born of colonialism, slavery, and racism have a very long reach.”

The Crown objected to the admission of the racism report and said that historic and current racist attitudes and systemic practices should play no role in Morris’s sentencing.

Ultimately, Justice Nakatsuru accepted that Morris was a young man who chose to pick up a loaded illegal handgun, but we shouldn’t expect someone who has faced the racism and struggles that Morris had to be perfect.

Justice Nakatsuru said it better than I ever could, “We have to get past this idea of waiting for the perfect person to be lenient. Waiting for the most benevolent soul by the standards of the privileged and the few, before we decide to extend consideration for leniency...  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.”

In other words, there are reasons that Black kids run from the police more than white kids. There are reasons that Black kids often don’t come to court armed with the mitigation of expensive private counselling, good jobs at their daddy’s office, and impressive private school resumes. There is a reason that Black kids are stopped by the police more often and punished more harshly than white kids.

That reason is racism, and we need to factor that into sentencing decisions. To do otherwise is to perpetuate a cycle of systemic racism.

The Crown appealed Justice Nakatsuru’s factoring of systemic racism into the sentence he imposed.

To its credit, on appeal, the Ontario government now agrees that systemic discrimination should be considered by a sentencing judge — but they now argue that there should be an impossibly high evidentiary burden on Black offenders to prove a causal link between systemic racism and the offence.

It is stunning just how hard the government will cling to the status quo.

They did it in 1993 in the Parks case.

But, they do it all the time. Governments, of all political stripes, both federal and provincial have often been dragged towards equality and fairness by the courts — a woman’s right to choose, the right to a dignified death, same-sex marriage, the rights of Indigenous kids to equitable access to public services — governments opposed all of these things

The progressive arguments at the Court of Appeal by counsel for Morris and the organizations who intervened on his behalf were inspiring. These lawyers and organizations are heroes.

And if the past repeats itself the court will yet again drag a reluctant government to recognize reality and force us to open our eyes to the harms of racism in our justice system.