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Evidence - 'Social Context' (Racism). R. v. Husbands
In R. v. Husbands (Ont CA, 2024) the Court of Appeal considered an appeal for a fatal mass shooting in downtown Toronto. Here, the court considers the trial court's treatment of 'social context' evidence in criminal sentencing - here particularly the 'Morris approach':(1) Did the trial judge fail to properly apply the legal framework for considering social context evidence?
(a) Overview
[50] The appellant’s sentencing pre-dated this court’s decision in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, which addresses the intersection between anti-Black racism and sentencing. It is the appellant’s position that the trial judge based his reasoning on outdated law, rather than applying what would become the Morris methodology, supporting the use of social context evidence to mitigate an offender’s degree of moral blameworthiness where there is “some connection” between that evidence and the offending conduct: para. 97.
[51] The appellant maintains that the trial judge erred by insisting upon a “direct causal link” between the social context evidence and the shooting, such that he wrongly discounted the importance of that evidence. Had the trial judge followed the Morris approach, only insisting upon “some connection” between the social context evidence and the offending conduct, he would have seen a connection between the evidence and the appellant’s reason for taking the gun to the Eaton Centre on June 2, 2012, as well as the ensuing shooting.
[52] The appellant also maintains that a “some connection” approach would have more generously informed his prospects of rehabilitation, and that if the trial judge had given proper consideration to rehabilitation, he would not have imposed life sentences. In short, the appellant argues that the trial judge never really came to proper grips with his diminished moral blameworthiness, as informed by the evidence of the anti-Black racism he had experienced.
[53] Respectfully, I cannot accept this position. As I will explain, while Morris was penned after the sentencing in this case, the reasons for sentence are consistent with its methodology and principles. What really lies at the heart of the appellant’s position is not a reflection of a wrong legal approach, but an objection to the conclusions the trial judge reached when applying that approach – conclusions to which this court owes deference.
(b) The Morris approach
[54] Morris unequivocally and resoundingly accepts the existence of anti-Black racism in the criminal justice system and recognizes its profound and insidious impact on those who endure it. Its focus is the methodology for dealing with this reality in the sentencing process. In explaining the methodology, Morris pulls on age-old sentencing principles, ones that the trial judge in this case was well versed in and correctly applied.
[55] Morris speaks for itself, and so I do not intend to review it in any detail. Instead, I highlight a few aspects of the decision that are relevant in understanding why the trial judge’s decision is in step with the methodology and principles set out in Morris.
[56] There can be no dispute that a fit sentence is one “governed by the fundamental tenets of criminal responsibility, including free will, and the purposes, principles and objectives of sentencing laid down in Part XXIII of the Criminal Code”: Morris, at para. 56. Sentencing has long been recognized as an individualized process, one where judges are required to consider various statutory and common law factors that are designed to arrive at sentences that achieve the paramount objective of proportionality. All sentences must proportionally balance the moral responsibility of the offender with the seriousness of the offending conduct: Criminal Code, s. 718.1. So important is proportionality to the sentencing equation that it has been referred to as the “sine qua non of a just sanction”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37. In Morris, this court referred to the proper blending of sentencing objectives to achieve a just sentence, as “guided by the loadstar of proportionality”: Morris, at para. 59. See also: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 56; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 30; and R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 40.
[57] While there was some dispute in the pre-Morris jurisprudence over whether and how social context evidence is relevant to the sentencing process, Morris cleared up that confusion.
[58] Morris makes clear that IRCA reports are admissible at sentencing: paras. 91, 106, and 134-135. They are admissible because they are relevant to the aspect of the proportionality analysis that looks to the moral blameworthiness of the offender. It is important that sentencing judges have all relevant information about the individual when determining that issue, including information about how anti-Black racism has impacted the offender.
[59] Morris also makes clear that social context evidence is not relevant when calibrating the seriousness of the offence. Indeed, Morris comments that the carrying of a loaded, concealed firearm in a public place was “made no less serious, dangerous, and harmful to the community” as a result of social context evidence: para. 76. Accordingly, even where there is relevant social context evidence before the court, deterrence and denunciation still play a predominant role in sentencing for serious crimes, including crimes involving the unlawful possession of loaded handguns in public places.
[60] Of course, that is not to say that social context evidence becomes irrelevant in cases such as these. Nonetheless, depending upon the seriousness of the offence, that seriousness can weigh more heavily in the sentencing calculus than any mitigation of the offender’s moral blameworthiness: R. v. Abdulle, 2023 ONCA 32, 166 O.R. (3d) 307, at para. 40, leave to appeal refused, 40727 (September 21, 2023) (S.C.C.). As I will explain shortly, that is precisely what the trial judge decided in this case.
[61] One final point. Morris is clear that an offender need not establish a direct causal connection between the negative effects of anti-Black racism on the offender and the offence, as “some connection” will suffice: Morris, at para. 97. But some connection is important because, without it, the mitigation of a sentence based upon the existence of overt or institutional racism in the community would represent nothing more than a “discount based on the offender’s colour”, and “[e]veryone agrees there can be no such discount”: Morris, at para. 97.
[62] Unlike in this case, in Morris, the court found that there was “some connection” between anti-Black racism and the possession of a loaded firearm. Mr. Morris’ fear of others, including the police, to some extent explained his possession of a loaded firearm at the time that he was arrested. There was information in the reports before the court in Morris that supported the inference that those fears existed in part as a result of systemic racism. It was therefore open to the trial judge in Morris to conclude that anti-Black racism was connected to, and had played a role in, Mr. Morris’ “strong fear for his personal safety in the community”: para. 100. Even so, Mr. Morris’ genuine fear, regardless of how it came to be, was only considered a “limited mitigating factor”, because he chose to arm himself in public with a concealed, loaded, deadly weapon. The reasons he had for that choice did not “detract from the seriousness of the crime”: para. 101. Even if his conduct was made somewhat less morally blameworthy by the explanation he offered for possessing the loaded handgun, his conduct “still put members of the community, and police officers engaged in the lawful execution of their duties, at real risk”: para. 101. The court continues at para 63-78 to assess the present case by these 'Morris' standards.
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