“Mr. Morris, these are my written reasons explaining why I gave you the sentence that I did. I also know that my reasons must explain the sentence to the Crown, and perhaps most importantly, to the public. Before I begin, I will be frank. I know that some may accuse me of being soft on crime. On gun crime. I do not believe that is so. Let me explain.” – Nakatsuru J. in Morris, at para. 1
R v Morris is a sentencing decision delivered in the Ontario Superior Court by Justice S. Nakatsuru. Justice Nakatsuru is known for his easy-to-read, fair, and principled judgments. He considers the personal aspects of the accused person’s life and, within the parameters of the law, arrives at a result that is tailored to that individual and the crime. At the same time, he carefully considers the societal context in which that person is living, including whether they have experienced discrimination in their interactions with the criminal justice system. Finally, Justice Nakatsuru considers what, if anything, he can do to remedy that discrimination.
A jury found Mr. Morris guilty of possession of an unauthorized firearm, possession of a prohibited firearm with ammunition, and carrying a concealed weapon. Mr. Morris had been chased by a uniformed police officer after fleeing a scene where several officers had attended a call about a home invasion. During the chase, Mr. Morris was seen to have abandoned his jacket. Police later located the jacket in a small pool of water and in that jacket was a loaded revolver.
The Crown had asked for 4 to 4.5 years in jail. Mr. Morris’ lawyers argued that the sentence should be 1-year, minus credit for a number of Charter breaches that were found. Justice Nakatsuru sentenced Mr. Morris to 1-year in jail after considering those Charter breaches, reducing the sentence from his original position of 15 months. He arrived at this result using the same principles from another case, R v Jackson, that he had decided earlier this year.
In R v Jackson, Justice Nakatsuru considered Mr. Jackson’s “systemic and social circumstances.” Mr. Jackson, like Mr. Morris, was a Black male. Justice Nakatsuru took judicial notice – a term used to describe something that a judge takes as notorious and uncontroversial, even though it was not proven using evidence in court – of the history of colonialism, slavery, segregation, intergenerational trauma, and racism that continues to affect Black Canadians today. In Mr. Jackson’s case, he used this information to arrive at a lower sentence than what was requested by the Crown.
Mr. Morris’ defence lawyers presented Justice Nakatsuru with two reports: one dealing with anti-Black racism in Canada, and the other dealing with Mr. Morris’ social history. The reports were written by well-qualified experts in sociology and social work. The Crown objected to the admission of the first report as evidence, arguing that it was not necessary because, like in Jackson, the law has already taken notice of racism in Canada. While Justice Nakatsuru agreed with the Crown’s argument, he also found that it is “important to have these issues concerning racism and discrimination explained well for the education of judges, lawyers, and the public” (para 21). He believed the report to be useful in that pursuit. In particular, Justice Nakatsuru agreed with the conclusion of the report, namely, that Black Canadians – young Black men in particular – keenly feel the discrimination they experience at the hands of the criminal justice system, and that they are overrepresented in the practices of local police and in jails.
The second report described the impact of that systemic racism on Mr. Morris’ experiences inside and outside of the justice system. The Crown also objected to the admissibility of this report, as they were concerned with the reliability of its findings. Despite this, Justice Nakatsuru admitted it into evidence, stating that with the goal of arriving at a “fit and proportionate sentence,” judges can take a broader view of the materials that should be admissible. This is particularly important, he says, “when it comes to tackling the problem of the disproportionate imprisonment of Black offenders” (para 24).
The report described Mr. Morris as a 26-year old Jamaican man. His father had died when Mr. Morris was 7-years old, which had a profoundly negative impact on him. Mr. Morris’ mother raised him alone while on welfare. The only older male influence Mr. Morris had in his life was a friend that he had while growing up, but that man was killed. Mr. Morris had previously been incarcerated and was stabbed during that incarceration. He never graduated high school. He tried to go back to school as an adult but could not finish due to another critical injury he suffered when stabbed while walking in his neighbourhood. The report talked about the impact of anti-Black racism, education, socio-economic factors, mental health, social influences, and criminal justice involvement on Mr. Morris’ life. It talked about his poor choices in friends, and his need to fit in amongst his peers. It also talked about Mr. Morris’ good qualities: his goodness of heart, loyalty, and selflessness, among other things.
Justice Nakatsuru considered what the law requires of him in these circumstances. Even when applying the individualized approach described above, he found that the sentencing principles of general deterrence and denunciation are particularly important for gun crimes. He talked about the expectation of society that gun crimes are treated with the requisite seriousness, in order to prevent them from happening again.
“I wish to make one thing clear. I am very well aware of the cases that point towards sentences of 3 years and higher for gun offences that are on the criminal end of the spectrum, regardless of mitigating factors that might exist. But I also know that sentencing ranges are guidelines. Although an important tool, it is but one that should guide me in my task.” – Nakatsuru J. in Morris, at para. 80
Justice Nakatsuru was candid about his struggle to arrive at a sentence that satisfied both the sentencing requirements for serious gun crime and the application of principles outlined in cases such as Jackson and Gladue. The latter is a case that mandates judicial consideration of mitigating factors in sentencing for Indigenous offenders, much like how in Jackson, Justice Nakatsuru arrived at a result that considered the accused’s experiences as a Black Canadian. These background factors are beyond the accused’s control. Thus, Justice Nakatsuru posed the question, mostly for himself, but also for Mr. Morris and observers of the criminal justice system: is it right that we harshly deter and denounce the conduct of people who have been subject to injustice by giving them stiffer sentences? Is it right to denounce their conduct when that conduct was constrained in choice; a constraint that was inequitably imposed upon them? Long periods of incarceration may fail to achieve the objectives of deterrence in certain communities. “In the right case,” he concluded, “a more creative sentence, shaped to the individual life experience of the particular offender, may still deter and denounce” (para 60).
In the particular circumstances of Mr. Morris’ case, Justice Nakatsuru considered the following aggravating and mitigating factors:
- Aggravating factors:
- The danger associated with the handgun used
- That Mr. Morris concealed that handgun in his jacket while out in public
- Morris’ flight from the police officers (though he also discussed the systemic issues that had led to distrust between police and Black men, such that running away may be understandable)
- Mitigating factors:
- Morris is a first offender who was 22 years old when he committed this crime
- He has supportive friends and family to help with rehabilitation
- Evidence of Mr. Morris’ remorse for having committed the crime
- How anti-Black experiences aggravated his mental health and Post-Traumatic Stress Disorder
- A series of Charter violations, including that Mr. Morris was at one point struck with an officer’s car, and that his right to counsel was violated when another officer continued to question him after he had asked to speak to a lawyer
In consideration of the above factors, Justice Nakatsuru arrived at the result of a sentence of 12 months for Mr. Morris, minus credit for pre-trial custody, plus 18 months of probation to follow.
“So I do hope the future brings better things for you, Mr. Morris. And we, judges, can take chances on people sometimes. Within the limits of the law. And I’m taking a chance on you. Because I do believe that you are a better and stronger person than the facts of these offences show you to be.” – Nakatsuru J., in Morris at para. 99
While Justice Nakatsuru’s individualized approach to sentencing may sound intuitive to some, there is a reason why he has made a reputation for himself as the “poetic judge.” The reason is that – I think – a lot of judges are afraid to do what he is doing. It is much easier to apply the principles of sentencing – denunciation, deterrence, rehabilitation, reparations, and promoting responsibility – more or less the same way to all offenders who come before the court. It is also (albeit counterintuitively) much easier for judges to do so in a way that is catered to the language of fellow judges and lawyers, than it is to make it palatable to the public. Conversely, it is more difficult, and perhaps controversial, to take a deeper look into someone’s background, determine the most suitable outcome in their particular circumstances, and explain that outcome in a way that the public can understand. Justice Nakatsuru stands out in this regard.
Take, for example, a recent opinion piece published in the Toronto Sun, which criticized Justice Nakatsuru as “playing social worker” during his sentencing of Mr. Morris. The author also captioned a picture of the judge with the phrase “old softy.” He then called the 12-month sentence a “slap on the wrist” in the face of rising gun crime in the city.
Even though levels of gun crime are reportedly rising, which forms part of the impetus for such criticism, I disagree that Justice Nakatsuru is “playing social worker.” He does not pretend to be changing the accused’s life in a substantial way. Rather, throughout all of his decisions, Justice Nakatsuru has balanced the seriousness of the offences with which the accused is charged, and the need for denunciation and deterrence, with an analysis of what brought the individual to commit the crime in the first place. More importantly, he considers these factors in light of what the offender needs so that they do not commit the same crime again. This approach is not only beneficial for the rehabilitation of the offender, but for society at large.
The Star reported that the Crown would be appealing the Morris decision, stating that Justice Nakatsuru “erred by imposing a manifestly unfit sentence.” What will be particularly interesting to see is whether and what comparisons are made throughout the appeal to the Gladue principles for sentencing Indigenous offenders. As more evidence comes to light of the racism involved in interactions between police and Black Canadians, as well as the over-incarceration of Black Canadians, particularly for petty crimes, it begs the question: should we not be developing a framework similar to Gladue for the sentencing of Black offenders? While there are undoubtedly some differences between the experiences of Indigenous peoples and Black people in Canada, there are just as many similarities in their fearful interactions with the justice system. And what kind of a system can we call “just” if it resists the recognition of these inequities?