Annamaria Enenajor, who teaches Queen’s Law students about bias and criminal justice system outcomes, is going to be arguing her subject material before the Ontario Court of Appeal on February 11. She represents the non-profit charitable organization Urban Alliance on Race Relations (UARR), one of eight organizations and coalitions granted special status to act as interveners on the appeal for R. v. Morris. The issue is how much weight judges should give to systemic racism when sentencing Black offenders.
Kevin Morris – who had been convicted of possessing an unauthorized firearm, possessing a prohibited firearm with ammunition, and carrying a concealed weapon – was sentenced to one year in 2018 though the Crown prosecutor requested four to four and a half years.
In this Q&A, Annamaria Enenajor, a partner with Ruby Shiller Enenajor DiGiuseppe in Toronto, shares her insights on this important case that may result in a principle for courts to consider systemic disadvantages Black offenders face when sentencing as is done with Indigenous offenders following the Gladue principle.
What is the Crown arguing in the R. v. Morris appeal?
The Crown believes that the judge was wrong in handing down such a low sentence for the offence and decided to appeal it, arguing that the sentencing judge’s approach overemphasized systemic and background factors, resulting in a disproportionately low sentence given the seriousness of the gun offence.
What is the position of the Urban Alliance on Race Relations on the case?
The position of the Urban Alliance is that the approach taken by the sentencing judge was correct. He appropriately took into consideration the systemic and background factors that impacted the accused Kevin Morris and weighed them carefully in determining the correct sentence.
What are your main arguments?
The UARR has three submissions in this case. First, in sentencing cases, factors such as flight from the police are often considered aggravating on sentence. The Urban Alliance argues that a proper approach to assessing a fact such as flight from the police requires a consideration of systemic and background factors. Second, systemic and background factors are relevant to the operation of general deterrence. It is often assumed that the higher the sentence, the greater the deterrence to the community. However, social science evidence demonstrates that the increase in custodial sentences actually produce crimes rather than deter them, meaning that increases in custodial sentences actually work against the principle of general deterrence. Finally, we will submit that systemic and background factors are relevant to the principle of denunciation for non-Indigenous offenders.
How does your work on this case tie in with your course, Bias in the Criminal Justice System Outcomes?
My work in this case is intimately tied to the subject matter of my course. One of the modules we examined is sentencing. We examine the over-representation of both Indigenous and Black offenders in our criminal justice system and the gradual increase of incarceration rates over the last two decades. The questions posed by this appeal are in direct response to that phenomenon. In the course, we explore the way that our criminal justice system acknowledges, ignores, confronts, and responds to this reality through the evolution of law and the implementation of substantive rules. I think we are witnessing an evolution happening currently on this question as courts have become far more literate in their understanding of the operation of systemic racism than the last time this question came before the Ontario Court of Appeal. But we haven’t come far enough. We talk about that evolution in class.
We also discuss the role of passionate, zealous, and fearless advocacy in pushing the courts towards progress. I encouraged my students to watch the submissions on this appeal because, based on the counsel who will appear, I have no doubt that they will witness some incredible oral advocacy.
What do you want your students – and all people – to take away from this appeal?
This is not the first time that the issue that is currently before the court was litigated. Over 15 years ago the Ontario Court of Appeal considered the question of whether to take into account systemic and background factors such as systemic racism in the sentencing of offenders. They chose not to do so for various reasons. The question is now before the courts again, but this time we're bringing the cavalry, so to speak.
What I want people to take away from this appeal is that just because you fail once doesn’t mean you should stop trying. I have great faith that this time we will get through to the court. Our courts and our laws are always evolving. Never give up fighting the good fight just because you have failed once.
Watch the proceedings for R. v. Morris starting at 10am on February 11 via Zoom.
For the latest information and Annamaria Enenajor’s submissions to the Court on this important appeal, check out her posts on Twitter.