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Litigation Opinions
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Criminal - Sentencing - Pre-Sentence Report

. R. v. S.B.

In R. v. S.B. (Ont CA, 2023) the Court of Appeal considered a pre-sentence report bearing on cultural and racial factors:
(i) SB’s Enhanced Pre-Sentence Report

[46] In R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, this court held that social context evidence relating to an offender’s life experiences may be used, where relevant, to mitigate the offender’s degree of responsibility for the offence. Alternatively, in other cases, such evidence can be used to help craft a sentence that best serves the purposes of sentencing: Morris, at para. 13. A causal link between the existence and impact of anti-Black discrimination and the offender is an overly stringent threshold that was expressly rejected by this court. Instead, Morris established that there must simply be “some connection” between the overt and systemic racism and the circumstances that are said to explain or mitigate the criminal conduct in issue: at paras. 96-97.

[47] That connection exists here. The EPSR highlights overarching racial and cultural factors which have played a role in shaping SB’s life. As this court wrote in Morris, at para. 91: “There can be no doubt that evidence on sentencing, describing the existence and effect of anti-Black racism in the offender’s community and the impact of that racism on the offender’s circumstances and life choices is part of the offender’s background and circumstances”. As I will explain later, this social context evidence is especially relevant in youth sentencing, as it assists the court under both prongs of the test in s. 72(1) of the Criminal Code.

[48] Had the EPSR been adduced during the original hearing, it could have affected the result. While the information contained in the EPSR report was available at sentencing, it was not common practice to adduce such information at the time. Given that such reports are a relatively new development and have only started to become more common in sentencing over the past few years, I am satisfied that the appellant acted with due diligence. I also accept the appellant’s submission that EPSRs differ from regular pre-sentence reports in that they are much more detailed and focus on the particular experiences of racialized Canadians.

[49] Finally, as the EPSR was prepared by a Registered Social Worker with a Master’s Degree in Social Work and the Crown did not dispute her credibility, I find that it meets the credibility threshold.

[50] Consequently, the appellant’s application to admit the EPSR as fresh evidence is granted.


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Last modified: 29-05-23
By: admin