Racial Stereotypes as an Aggravating Factor

On Feb. 25, 2021, I provided the keynote speech at Bora Laskin School of Law for Black History Month. I noted that Black History could not be just reduced to slavery, but at the same time the legacy and trauma of that history has significant impacts on our society and justice system today.

The Ontario Court of Appeal recently heard an appeal of Justice Nakatsuru’s decision in R. v. Morris, which explored the social circumstances of Black Canadians and its impact on the justice system.

Justice Nakatsuru took into account the unfair and disproportionate discrimination that Black offenders face in his sentencing considerations, deciding on 15 months reduced to 1 year for Charter breaches, instead of the Crown’s position of 4-4.5 years, stating,

[59] I recognize that criminal judges have limited tools available to them to meet the objectives of sentencing. But the law does not say that systemic and background factors should play no role in the assessment of the seriousness of the crime and the weight to be given to general deterrence and denunciation. It is true that in some cases those factors may ultimately play only a little role in the sentence. But at other times, they should allow sentencing judges to view the concepts of general deterrence and denunciation with more subtlety and nuance. If viewed through a larger systemic lens, the needs of general deterrence and denunciation may be met with sentences of greater restraint.

…

[62] I believe that the law supports this perspective. Although the principles of general deterrence and denunciation continue to be recognized as the primary sentencing principles for serious offences, there is also an understanding that the principles of restraint, rehabilitation, and individual deterrence cannot be ignored exclusively in favor of general deterrence and denunciation. In addition, the objectives of denunciation and deterrence are not only met through the imposition of a long term period of incarceration but can take other forms. Finally, the effectiveness of incarceration as a deterrent itself has been questioned by the Supreme Court of Canada in cases such as R. v. Nur, 2015 SCC 15; [2015] 1 SCR 773 and R. v. Proulx, 2000 SCC 5; [2000] 1 SCR 61.

The expert report relied upon by the court stated,

As documented above, Black Canadians present experiences are rooted in our country’s history of colonialism, slavery and segregation. These systems, the latter of which existed well into the 20^th century in Ontario, were premised on the idea that Black people are inherently inferior. These systems also served to structure the nature of early social relations in Canada, while at the same time shaping the economic and political landscape. While White Canadians were provided opportunity to access good schools, good jobs and representation in political office, Black Canadians were largely relegated to the margins of Canadian society.

…

The data documented above also clearly demonstrate that Black Canadians, and young Black men in particular, keenly feel the discrimination they experience at the hands of the criminal justice system. Young Black Canadians are not only over-represented in stop, search and carding practices of local police, but they serve longer periods of time in pre-trial detention, resulting in longer periods of incarceration than are others charged with the same or similar crimes… The conclusion is inescapable – that young Black Canadians who view the system as unjust are less likely to believe they should abide by that system’s rules.

It is our opinion that the social circumstances of Black Canadians in general, and of Black male Torontonians in particular, should be viewed as criminogenic. Elevated levels of offending in the types of crime that typically come to the attention of the police (street crimes as opposed to white-collar and corporate crimes), combined with discrimination in the justice system itself have resulted in the gross over-representation of Black Canadians in our provincial and federal correctional systems. Whereas no one individual should be completely absolved of their own responsibility when it comes to offending behaviour, the social realities that have produced or contributed to such behaviour can be acknowledged, and serve to guide judicial decision making.
[emphasis added]

Whether the court accepts that special sentencing considerations be provided to Black Canadians, as I proposed nearly 5 years ago, will likely be determined by the Supreme Court. Meanwhile, the role of racial stereotypes in sentencing has appeared in other contexts.

The Ontario Court of Appeal recently released a decision in R. v. Abdullahi, reducing a sentence from 12 years to 10 years. In part, it was based on the trial judge’s decision, which stated,

The possession of a firearm may lead, directly or indirectly, to a random or intentional act of violence, including the death of an innocent person in the area of any confrontation involving the use of the firearm. Firearms are used to further a criminal intent. Unforeseen, provocative circumstances may lead to a senseless act of violence, and consequential grievous bodily harm or death, and all of the emotional devastation and societal costs that go with it. There has been a significant increase in the possession and use of firearms in Toronto over the past 15 years, as observed by Armstrong J.A. and Kelly J. This increase has alarmed every reasonable person in the city and eroded its reputation as a City where people may flourish in its multicultural environment. Crimes involving the use of firearms that are committed by people of racial minorities, such as the defendants, may lead to stereotypical or other racist attitudes against the minority group at large. The trafficking of firearms is a necessary pre-condition to such use in the community. It is crime to facilitate crime. Those who buy and sell firearms know the risk of serious bodily harm or death inherent in their eventual use on the streets in connection with drug deals, robberies, homicides and other crimes of violence. Nevertheless, they proceed to deal in them for financial or other reasons. While such trafficking may not make such dealers parties to the many crimes committed by the ultimate users of the firearms, such trafficking is an indispensable step in the chain of events leading to such tragedy on the streets. For these reasons, the trafficking of firearms attracts the same emphasis on general and specific deterrence and denunciation as do the crimes of violence committed by the actual users of the firearms in my view.
[emphasis added]

The reference to Justices Armstrong and Kelly were in R. v. Danvers and R. v. Lambert, respectively, where the courts emphasized the need for greater denunciation and deterrence around firearms.

The accused stated that the trial judge’s sentence was an improper basis for deterrence and denunciation in this context, stating,

The implicit logic of this statement is that crimes committed by members of marginalized communities that align with stereotypes or other prejudicial beliefs about their community are necessarily more serious and merit greater denunciation because they can reinforce bigoted attitudes. Although the intent of this consideration may be well-meaning and motivated by a desire to reduce prejudice, its result is to apply a unique aggravating factor to members of minority groups, and convey that marginalized offenders are responsible for bigotry directed against their communities. Effectively, this would require longer sentences for offenders from marginalized backgrounds whenever they commit crimes that bigots believe their community is more prone to committing, as a punishment for reflecting poorly on their community. This was improper.
[emphasis added]

The Court of Appeal agreed with this submission, stating,

[113] …While I have no doubt that the trial judge made the comment in furtherance of the fundamental purpose of sentencing to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society, his apparent imposition of a unique aggravating factor on members of minority groups has no place in Canadian sentencing principles. It was an error for the trial judge to have made that statement.

Although sentencing judges have wide latitude to determine a just and appropriate sentence, having the advantage of seeing and heard the witnesses directly, where an error of law is made an appellate court is made that has an impact on the sentence, an appellate court may vary it. The failure to consider a relevant factor, or the erroneous application of aggravating and mitigating sentencings can justify this type of intervention.

Controversial justice interventions such as carding were often justified as in the best interest of the minority communities being targeted, with no discussion, input, or control by those same communities. These approaches are reminiscent of the same paternalistic practices of colonialism and slavery, and ultimately end up perpetuating the same injustices that have created the social contexts of racism and discrimination that permeate our society today.

Courts would also do well to avoid falling into these same patterns of thinking and justification. Assumptions of a minority community’s need for denunciation by establishments they do not trust, and the effectiveness of deterrence in a system that is perceived to be unfair, are rightly challenged. Racial stereotypes should not operate as an aggravating factor, and well-recognized patterns of systemic discrimination should have at least some mitigating effects.

Justice Nakatsuru stated in an earlier case, R. v. Jackson,

[1] About making change, let me quote Dr. Martin Luther King Jr.: “Take the first step in faith. You don’t have to see the whole staircase, just take the first step.”

[2] So it is with sentencing Mr. Jamaal Jackson, a Black man. Too many African Canadians are serving time in jail. Something more needs to be done. In this case, I hope to take a small step in changing that.

[3] I will begin by saying this. Sentencing is and has always been a very individual process. A judge takes into account the case-specific facts of the offence and the offender to determine a just and fit sentence. When it is right to do so, a sentencing judge must take into account discrimination, both systemic and blatant. This has always been the case. Judges have always had to do so.

[4] That said, there remains a problem. Disproportionately, African Canadian offenders are serving jail sentences. Often very long ones.  

The Crown sought a total sentence of 8.5-10 years, while the defence sought 4 years in total. Justice Nakatsuru found 6 years to be appropriate.

This was not the creation of a race-based discount, but rather a sentence that fits all of the historical and systemic circumstances when properly taken into account, and one that best reflects the remedial nature of the restraint principle in Section 718.2(e) of the Criminal Code,

718.2 A court that imposes a sentence shall also take into consideration the following principles:
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(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders…