R. v. Morris, 2021 ONCA 680: How trial judges should consider evidence of anti-Black racism on sentencing. I can't add much to Reakash's analysis. Here are smaller thoughts.
Morris doesn't really say anything new. Defence lawyers should provide the sentencing judge with a detailed report on how anti-black racism impacted their client. The judge should consider whether this ⬇️ the client's blameworthiness and ⬆️the need for rehabilitation.
You wanted to become a criminal lawyer to fight institutional racism? This is your chance. Put in the work, get the report in. Of course, the client needs funding for the report and you need someone capable of writing it.
Be wary if this is the R v Gladue moment for anti-black racism. Gladue was not faithfully obeyed in sentencing courts. The Supreme Court had to re-direct them in Ipeelee. Will they listen this time?
On Gladue, I agree with the ONCA that courts cannot sentence Black offenders the same way as Aboriginal offenders. Parliament could allow for this with the stroke of a pen in s. 718(e).
An easy takeaway from this decision is the propriety of a conditional sentence for a serious gun offence. Image
I actually like the Morris decision. The court went as far as it could with our current sentencing statute to address anti-Black racism. Any further change has to come from lawmakers.
Criminal law is to social justice as radiation is to medical treatment. It's blunt, destructive, and not a first measure.
We can figure out who authored the bulk of this decision "By the Court" by determining who loves the phrase "take into account". Image

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More from @SewrattanLaw

17 Oct
R. v. Khill, 2021 SCC 37: The phrase “the person’s role in the incident” in Canada's self-defence law casts a wide net. It refers to all of the accused’s conduct during the course of the incident that is relevant to whether their defence was reasonable.
The victim in this case was an Indigenous man. That's not in the decision.
There is a 5-4 split on the law. Moldaver J. et al. disagree. Moldaver J. says that the factor needs the guardrail of wrongfulness because of how open ended self-defence is. The jury can assign unlimited weight to any factor.
Read 12 tweets
21 May
R. v. Marshall, 2021 ONCA 344 at paras. 51-52: Summers credit deducts from the sentence. Duncan credit shapes the sentence.
Looked at in a practical way, an aggravating circumstance can reduce Duncan credit, but it cannot reduce Summers credit.
Did the Court in Marshall consider that a person under exceptionally harsh pre-trial detention conditions (like COVID protocols) gets no Downes credit against a mandatory minimum?
Read 5 tweets

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