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Racism - Criminal (2). R. v. Stewart
In R. v. Stewart (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal sentencing appeal, here where the defendant "pleaded guilty to three firearms-related offences: two counts of unauthorized possession of a non-restricted firearm (contrary to s. 92(1) of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”)) and one count of failure to comply with a release order which stipulated that he was not to possess any weapons as defined by the Code (s. 145(5)(a))".
Here the court considered anti-black racism as a sentencing factor:b. The Sentencing Judge did not Misapply Morris
[14] The appellant is a Black man of Jamaican descent living in Toronto. The Enhanced Pre-Sentence Report (the “Morris Report”) indicates that throughout his life, he has experienced anti-Black racism. He was raised in a high-crime neighbourhood and experienced discriminatory practices such as being stopped and searched and carded which left him with a distrust of the police. The appellant told the assessor that he had fears for his safety in his neighbourhood and in high-risk situations and carried a weapon to protect himself.
[15] The appellant submits that the sentencing judge erred in principle in her application of Morris, resulting in a longer sentence than appropriate. He argues that she applied a higher standard than that set out in Morris in determining whether his experience of systemic racism impacted his moral culpability. Specifically, he says that the sentencing judge erred in stating that there was no “rational connection” between his background and the circumstances of the offences.
[16] We do not accept this argument. The sentencing judge correctly set out the legal principles from Morris 2021 and Morris 2023 and that “some connection” must be shown between the anti-Black racism identified and the circumstances or events that are said to explain or mitigate the criminal conduct in issue: Morris 2021, at para. 97. She considered the appellant’s experiences, as set out in the Morris Report, and acknowledged that the appellant told the assessor that because of his experiences he felt safer with a firearm.
[17] The sentencing judge concluded, however, that there was no nexus between any overt or systemic racism experienced by the appellant and the offences to which the appellant pleaded guilty. She stated: “[a] naked shotgun in the stairwell of a downtown parkade being struggled over by [the appellant] and another and the cache of two shotguns, a pellet gun, and abundant ammunition in the trunk of [the appellant’s] car point to motives other than self defence.”
[18] We do not find that the sentencing judge misapplied the test by referring, on one occasion, in her oral judgment to a “rational connection” rather than “some connection.” She understood the correct legal test and properly applied it: Lowe, at para. 13.
[19] We would add that we reject the appellant’s secondary argument that the sentencing judge erred in mentioning other groups who experience discrimination in Canada. Referring to discriminatory practices in Canada more broadly, at the outset of her analysis, was not an error.
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