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Racism - Criminal (2). R. v. K.C.
In R. v. K.C. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal sentencing appeal, here where an issue was 'anti-black racism':[26] The principles outlined in Morris [SS: R. v. Morris (Ont CA, 2021)] are clear. Social context evidence regarding the experiences of Black offenders can be an important consideration when assessing their moral blameworthiness. In turn, the offender’s moral blameworthiness must be balanced with the gravity of the offences committed by that offender.
[27] It is not disputed that, in Morris, this court held it an error to require a direct causal link between the commission of an offence and “the negative effects of anti-Black racism on the offender” in order for anti-Black racism to “be seen as mitigating personal responsibility”: at para. 96. However, the court also held that it is still necessary to establish “some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue”: at para. 97.
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[41] To put it bluntly, duty counsel’s fundamental argument is that the sentencing judge paid mere “lip service” to the Morris decision, based largely on the fact that the appellant’s sentence fell towards the upper end of the range.
[42] The problem with this submission is that it invites this court to reason backwards from the sentence imposed in search of an error not otherwise shown. This does not account for the deference owed to sentencing judges. It also comes perilously close to the notion that a finding of anti-Black racism in the community automatically requires a lowered sentence. The court in Morris explicitly rejected this proposition, at para. 97:Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount. [Citations omitted.] . R. v. Stewart
In R. v. Stewart (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal sentencing appeal, here where the defendant "pleaded guilty to three firearms-related offences: two counts of unauthorized possession of a non-restricted firearm (contrary to s. 92(1) of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”)) and one count of failure to comply with a release order which stipulated that he was not to possess any weapons as defined by the Code (s. 145(5)(a))".
Here the court considered anti-black racism as a sentencing factor:b. The Sentencing Judge did not Misapply Morris
[14] The appellant is a Black man of Jamaican descent living in Toronto. The Enhanced Pre-Sentence Report (the “Morris Report”) indicates that throughout his life, he has experienced anti-Black racism. He was raised in a high-crime neighbourhood and experienced discriminatory practices such as being stopped and searched and carded which left him with a distrust of the police. The appellant told the assessor that he had fears for his safety in his neighbourhood and in high-risk situations and carried a weapon to protect himself.
[15] The appellant submits that the sentencing judge erred in principle in her application of Morris, resulting in a longer sentence than appropriate. He argues that she applied a higher standard than that set out in Morris in determining whether his experience of systemic racism impacted his moral culpability. Specifically, he says that the sentencing judge erred in stating that there was no “rational connection” between his background and the circumstances of the offences.
[16] We do not accept this argument. The sentencing judge correctly set out the legal principles from Morris 2021 and Morris 2023 and that “some connection” must be shown between the anti-Black racism identified and the circumstances or events that are said to explain or mitigate the criminal conduct in issue: Morris 2021, at para. 97. She considered the appellant’s experiences, as set out in the Morris Report, and acknowledged that the appellant told the assessor that because of his experiences he felt safer with a firearm.
[17] The sentencing judge concluded, however, that there was no nexus between any overt or systemic racism experienced by the appellant and the offences to which the appellant pleaded guilty. She stated: “[a] naked shotgun in the stairwell of a downtown parkade being struggled over by [the appellant] and another and the cache of two shotguns, a pellet gun, and abundant ammunition in the trunk of [the appellant’s] car point to motives other than self defence.”
[18] We do not find that the sentencing judge misapplied the test by referring, on one occasion, in her oral judgment to a “rational connection” rather than “some connection.” She understood the correct legal test and properly applied it: Lowe, at para. 13.
[19] We would add that we reject the appellant’s secondary argument that the sentencing judge erred in mentioning other groups who experience discrimination in Canada. Referring to discriminatory practices in Canada more broadly, at the outset of her analysis, was not an error.
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