Simon's Megalomaniacal Legal Resources

Racism - Criminal

. R. v. Necan

In R. v. Necan (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's appeal where the only issue was intent to murder:

The court considered whether the jury charge was inadequate wrt it's 'anti-bias' aspect, here where the appellant was indigenous:

[26] As is customary, the jury charge contained general opening instructions to the jury, touching on how they should approach their duties. One such instruction included a somewhat typical caution about guarding against being influenced by “sympathy, prejudice or fear”. The draft instruction was as follows:

You must consider the evidence and make your decision without sympathy, prejudice or fear. You must not be influenced by public opinion. We expect and are entitled to your impartial assessment of the evidence. That was the promise you made and the oath you took or affirmation you gave after you were accepted by the parties as jurors, and they have the right to expect nothing less.

[27] This instruction closely tracks the standard instruction on “Irrelevance of Prejudice and Sympathy” found in David Watt, Watt’s Manual of Criminal Jury Instructions, 2023 ed. (Toronto: Thomson Reuters, 2023), at p. 44 (Preliminary 18).

[28] Although neither party expressed concern over the content of this instruction, the defence requested more. Specifically, defence counsel asked that the trial judge add two sentences to the instruction as follows:

Nicholas Necan is a First Nations man. You must judge the evidence in this case without bias, prejudice or partiality.

[29] Although the trial Crown took no issue with the suggested addition, the trial judge expressed some concern over the first proposed sentence, that “Nicholas Necan is a First Nations man.” The trial judge asked counsel to address why that sentence should be included in the charge.

[30] Defence counsel responded that the wording had been derived from a “sort of mutation, or an amendment to the typical Parks challenge for cause type wording”, changed to be a statement rather than a question. By this, I understand counsel to mean that they borrowed the language from the standard Parks question, which focusses in on determining whether a potential juror’s “ability to judge the evidence in the case without bias, prejudice or partiality” would be affected by x: see R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), at p. 331. For instance, the question approved by this court in Parks, at p. 331, was: “[w]ould your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is a black and the deceased is a white man?” See also R. v. Campbell (1999), 1999 CanLII 2688 (ON CA), 139 C.C.C. (3d) 258 (C.A.), at paras. 2-8.

[31] Defence counsel, who acknowledged that the defence had not requested a challenge for cause at the time of jury selection, maintained that the proposed addition to the charge would cause the jurors to reflect on the issue of racial prejudice.

[32] Ultimately, the trial judge was willing to instruct the jury in accordance with the requested sentence about eschewing “bias, prejudice or partiality” in their deliberations, but said that there was no need to state what he considered to be “abundantly obvious” to all based upon the testimony at trial: that Mr. Necan was a First Nations man. Accordingly, the trial judge left the first requested sentence out of the final instruction but incorporated the second sentence. For the sake of clarity, the relevant portion of the final jury charge merits being reproduced:

You must consider the evidence and make your decision without sympathy, prejudice or fear. You must not be influenced by public opinion. You must judge the evidence in this case without bias, without prejudice and without partiality. We expect and are entitled to your impartial assessment of the evidence. That was the promise you made and the oath you took, or affirmation you gave after you were accepted by the parties as jurors, and they have the right to expect nothing less. [Emphasis added.]

....

(c) Analysis

(i) The Applicable Legal Principles from Barton and Chouhan

[40] The law pertaining to when an anti-bias instruction should be given has evolved substantially since this jury was charged in February 2018. It is important not to lose sight of the fact that when the jury was charged, Barton and Chouhan had not even been argued, let alone resolved.

[41] With that said, both Barton and Chouhan provide helpful guidance on how the administration of criminal justice can better respond to the concerning fact that bias continues to pose a risk to fair and impartial juror deliberations. The criminal justice system has long addressed concerns about bias infecting juror deliberations. However, until Barton and Chouhan, the response had been largely directed toward biases that jurors were aware of or held deliberately – what I refer to in these reasons as conscious bias. For example, the challenge for cause procedure and the standard Parks question asked during a challenge for cause have historically been targeted at identifying those jurors who would have difficulty or be unwilling to set aside conscious biases – ones they are aware of – when fulfilling their duties as jurors.

[42] In the more recent past, the law has evolved to reflect a more advanced understanding of how biases operate, including at the unconscious level. It is now recognized that even jurors without conscious biases may hold unconscious biases that can infect their deliberations: Chouhan, at para. 49, per Moldaver and Brown JJ. The fact is that even well-meaning people can unwittingly carry biases, springing from conscious and unconscious beliefs, assumptions and perceptions about the traits associated with a particular group: Chouhan, at para. 53, per Moldaver and Brown JJ.

[43] Unconscious bias is particularly insidious because, by definition, it is concealed and can be directed at anything, including race, ethnicity, sexual orientation, religion, gender, and much more. And, unlike a conscious bias, an unconscious bias allows the holder of that bias to quite unintentionally act on it and, in fact, propagate it.

[44] When it comes to jury trials, we expect jurors to act impartially, arriving at their verdict based solely upon the evidence elicited and the instructions given by the trial judge. Where a juror holds a conscious or unconscious bias, it can have the effect of undermining the impartiality that is so necessary to ensuring a fair trial.

[45] So, what can we do about it?

[46] There are several mechanisms that can be used to address concerns over partiality.

[47] For example, a fundamental tool for addressing the concern over potential partiality is through a robust challenge for cause procedure, a procedure which allows for the exclusion of those who cannot be impartial. The risk of prejudice and discrimination is properly the subject of a challenge for cause. It is for the trial judge, in a broad exercise of discretion, to determine the parameters of a challenge for cause in circumstances suggesting a realistic potential for partiality: Chouhan, at para. 62, per Moldaver and Brown JJ.; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 24; and R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 at para. 45.

[48] As for unconscious bias, there is nothing wrong, and indeed much right, with reminding prospective jurors, before the challenge is put, or even when there is no challenge for cause, that they must engage in an exercise of introspection and that being an impartial juror demands “active and conscientious work”: Chouhan, at paras. 53-55, 63. Bearing this in mind, jurors who face a challenge for cause should be encouraged to reflect on unconscious biases that they may hold, and to challenge themselves to cast those aside during their service as a juror: see Chouhan, at para. 63, per Moldaver and Brown JJ.; Find, at para. 40.

[49] As I will return to later in these reasons, the appellant did not pursue a challenge for cause in this case.

[50] Another mechanism for addressing concerns over partiality, and specifically how partiality can arise from unconscious bias, is the jury instruction. It is beyond dispute that jury instructions can act as an additional safeguard when it comes to pushing back against biases, whether racially motivated or otherwise, and whether conscious or unconscious in nature.

[51] Accordingly, both Barton and Chouhan provide guidance on jury instructions as they relate to protecting and promoting juror impartiality by combatting conscious and unconscious biases.

[52] Barton and Chouhan make clear that anti-bias instructions should be given wherever “specific biases, prejudices, and stereotypes … may reasonably be expected to arise in the particular case”: Chouhan, at para. 50; Barton, at para. 203. The need for these instructions to be directed at both conscious and unconscious biases that “may taint the integrity of jury deliberations” is clear: Chouhan, at para. 50, per Moldaver and Brown JJ. As for unconscious biases, the key is to attempt through the instruction to expose them – biases, prejudices and stereotypes – all of which may “lurk beneath the surface, thereby allowing all justice system participants to address them head-on – openly, honestly and without fear”: Chouhan, at para. 49, per Moldaver and Brown JJ., citing Barton, at para. 197. See also: Barton, at para. 201; R. v. Bhogal, 2021 ONSC 4925, 73 C.R. (7th) 351; R. v. Douse, 2022 ONSC 3228; R. v. Smith, 2021 ONSC 6173.

[53] Encouraging jurors to approach their duties with a healthy dose of introspection, and to confront and set aside prejudices, may involve both general and specific instructions. Whether either, or both, type of instruction is necessary will depend on the circumstances of the case and must be determined in consultation with the parties: Chouhan, at para. 50, per Moldaver and Brown JJ. Indeed, Moldaver and Brown JJ. in Chouhan characterized the submissions of counsel as “integral” to crafting a specific anti-bias instruction: at para. 58.

[54] Where such instructions are required, they should be delivered early in the trial before evidence has been elicited: Chouhan, at para. 53, per Moldaver and Brown JJ. While there is nothing to preclude a further instruction later in the trial or during the charge to the jury at the end of the case, it is best to get the jury doing the work of confronting any possible biases before they start hearing and considering evidence. Examples of such preliminary instructions include: “Duties of Jurors” in Watt’s Manual of Criminal Jury Instructions, at pp. 36-38 (Preliminary 15); Canadian Judicial Council, Model Jury Instructions: Preliminary Instructions (2021), online (pdf): National Judicial Institute .

[55] In summary, the combined message from Barton and Chouhan is that conscious and unconscious bias continues to exist. Where bias exists, it threatens impartiality, which in turn threatens trial fairness. Where it arises, it is up to all justice participants to keep an open mind as to how to address concerns over bias. One of the means to do so, is by way of a challenge for cause. Another important mechanism to combat bias is through carefully crafted jury instructions, ones that encourage jurors to engage in the hard work necessary to challenge themselves by engaging in a degree of self-awareness about what might lurk below the surface.

The court continues at paras 61-71 to consider these issues in light of the case facts and events.

. 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.

. R. v. Morris

In R. v. Morris (Ont CA, 2023) the Court of Appeal considers a leading criminal case addressing anti-black racism:

[35] The appellant’s sentence was imposed before this court released its decision in Morris[1], which instructed sentencing judges that they could consider social context evidence regarding the effects of anti-Black racism on the appropriate sentence in relevant cases. As a result, an Enhanced Pre-Sentence Report (“EPSR”) about the appellant was prepared for the purpose of a sentence appeal to this court.

[36] In Morris, the court recognized that anti-Black racism exists in our society and that, in certain circumstances, those affected by anti-Black racism may have reduced moral culpability or a greater potential for rehabilitation, thus warranting a reduction in their sentence. The court set out a number of guiding principles for sentencing judges to apply when assessing the impact of anti-Black racism on the moral culpability of the particular offender at para. 13:

. The trial judge’s task in sentencing is to impose a just sentence tailored to the individual offender and the specific offence in accordance with the principles and objectives laid out in Part XXIII of the Criminal Code;

. Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718;

. The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. Accordingly, unlike when assessing the offender’s degree of personal responsibility, an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence;

. Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender;

. Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided;

. The Gladue methodology does not apply to Black offenders. However, that jurisprudence can, in some respects, inform the approach to be taken when assessing the impact of anti-Black racism on sentencing.

[37] In Morris, the accused, a 23-year-old Black man, ran from police and discarded his jacket which was later found with a loaded .38 calibre Smith & Wesson handgun. Two expert reports were tendered on sentencing as social context evidence. One, referred to as the Expert Report, discussed the existence, causes and impact of anti-Black racism in Canadian society, especially in Toronto. That report was also filed as evidence on this appeal as applicable to Ottawa as well. The court in Morris accepted the Expert Report and summarized its impact as follows at para 39:

The report explains how systemic discrimination in many social institutions marginalizes Black people in communities marked by poverty, diminished economic and employment opportunities, and a strong and aggressive police presence. These factors combine to leave many in the Black community with the reasonable perception that Canadian society, and in particular the criminal justice system, is racist and unfair.

[38] The other was a report regarding “a Social History” of the accused, prepared by a clinical social worker. The purpose was to help to apply the general context information from the Expert Report to the accused’s particular life experiences, including the death of his father when he was seven, his close relationship with his mother, interactions with Children’s Aid, being stabbed, living in an unsafe community, and his perception of negative treatment by police and corrections authorities. He was fearful of his community and of police.

[39] In imposing a proportional and fit sentence, the court in Morris first focused on the gravity of the offence as one part of the proportionality analysis, and emphasized that carrying a concealed, loaded firearm in a public place in Canada is “antithetical to the concept of a free and ordered society”: at para. 68. The court reiterated that an offender’s personal circumstances including suffering from anti-Black racism do not diminish the seriousness of the offence, but can explain to some degree the reason for committing the offence and, in that context, can mitigate the offender’s degree of moral responsibility. It can therefore go to the sentencing objectives of specific deterrence and rehabilitation. Importantly, while there is no cause-and-effect requirement, there must be some connection between systemic racism and the offender’s criminal conduct. There is no automatic discount applied because anti-Black racism exists in the community: at para. 97.

[40] As in this case, in Morris, the accused explained his behaviour in arming himself by his fear of police and of his community. The court acknowledged the explanation, but clarified that it was only a limited mitigating factor because of the seriousness of the conduct and of the crime: at para. 101.

[41] The court also explained how interaction with police can be very different for members of different communities, and can be very adversarial and confrontational for young Black men in current society: at para. 103. That factor can be taken into account by a sentencing judge, as can the possibility that an offender’s limited education and low-level employment may be more reflective of institutional biases and systemic inadequacies than any lack of potential or interest on the part of the offender.

[42] The court summarized its analysis at para. 106:

In summary, social context evidence, which helps explain how the offender came to commit the offence, or which allows for a more informed and accurate assessment of the offender’s background, character and potential when choosing from among available sanctions, is relevant and admissible on sentencing. Acknowledging the reality of anti-Black racism and its impact on offenders like Mr. Morris during the sentencing process enhances the legitimacy of the criminal justice system in the eyes of the community and, in particular, those in the community who have good reason to see the criminal justice system as racist and unjust. A sentencing process which frankly acknowledges and addresses the realities of the offender’s life takes one important step toward the goal of equal justice for all.

[43] Finally, the court pointed out that while this context-sensitive approach to sentencing is not new, what is new is the judicial willingness to receive and act on the type of social context evidence in the two reports filed in that case.

[44] In addition, the court explained that “in considering the restraint principle, courts should bear in mind the well-established over-incarceration of Black offenders, particularly young male offenders.”: at para. 123. In that regard, where incarceration is necessary, the restraint principle applies when the court is considering the length of the custodial sentence that will be proportional in the circumstances, having regard to the seriousness of the crime and the circumstances of the offender.

....

[65] To summarize, the appellant’s offences were very serious and he was not a first-time offender. This warranted the significant sentence imposed by the sentencing judge, who did not have the information about the appellant’s background that has been provided to this court on the appeal in the EPSR. Applying the principles from Morris, the many experiences of anti-Black racism, both direct and consequential that have affected the appellant, explain to some extent his conduct and somewhat reduce his moral culpability for the offences. The appellant’s penitentiary sentence is a significant one for a young man. In my view, a reduction of one year will result in a sentence that remains proportionate, but properly reflects the effects of anti-Black racism on the appellant in accordance with Morris.