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New week, new thread acknowledging #BlackHistoryMonth 
by writing about 1 case or article per day on race, culture & the law. This week the ONCA will hear the appeal of Morris- a v. significant decision in this area-as such I’ll be focused on sentencing of Black offenders all week
by writing about 1 case or article per day on race, culture & the law. This week the ONCA will hear the appeal of Morris- a v. significant decision in this area-as such I’ll be focused on sentencing of Black offenders all week
Feb 8 - Borde 2003 ONCA. In Borde the ONCA was specifically asked to apply a sentencing framework akin to the Gladue framework to Black offenders. No social science evidence of Anti-Black racism was filed at sentencing, so on appeal @dtanovich sought to admit fresh evidence
The crt declined the application on the basis that the evidence could not affect the result. This is sometimes misconstrued as a finding that evidence of ABR cannot affect sentence-this is wrong. Borde is pre-Ipeelee, and the crt was operating u the erroneous belief that...
Gladue-factors could not affect sentence for serious crimes. In Borde, the crt accepted that there were similarities in the systemic & background factors that impacted Black & Indigenous Cdns; that both groups are overincarcerated; & that these factors could affect sentence
Feb 9 - Hamilton and Mason 2004 ONCA - this was a case about two Black women who imported cocaine into Canada. Both women were single mothers who imported for financial reasons. During sentencing Justice Casey Hill introduced hundreds of pages of his own research
into the social context of importing and concluded that the women were vulnerable because of their race, gender and poverty. He sentenced them to conditional sentences. For context, this type of importing for a first offender would normally attract a sentence of 2-3 years.
The crown appealed. The ONCA concluded that Hill J. made a legal error by doing his own research outside the proceedings. Again, the interests of racialized offenders were represented by an all star team of lawyers, now-J Schreck, Kent Roach, @mirzalawyer, now-J. MacLoed, etc.
In Hamilton, the crt acknowledged that social context evidence can assist to assess moral blameworthiness, but commented that H & M’s race and gender did not add much to the analysis. The crt said that statutory scheme underlying the Gladue-framework excluded Black offenders.
Finally, the crt said that a sentence in the 2-3 year range would normally be appropriate for drug couriers with background factors like H&M’s. The court did not interfere with H&M’s conditional sentences.
Hamilton is similar to Morris, but different-in H. the crt felt that there was not enough connection btw social context evidence & the commission of the offence. The record in Morris inclds that evidence. Morris will directly address one of the issues left lingering by Hamilton.
