COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Morris, 2021 ONCA 680

DATE: 20211008

DOCKET: C65766

Fairburn A.C.J.O., Doherty,
    Juriansz, Tulloch and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Kevin Morris

Respondent

Roger Shallow, for the appellant

Faisal Mirza and Gail D. Smith, for the
    respondent

Nana Yanful, Johnathan Shime and Roger
    Rowe, for the interveners Black Legal Action Centre and Canadian Association of
    Black Lawyers

Caitlyn E. Kasper and Douglas Varrette,
    for the intervener Aboriginal Legal Services

Nader R. Hasan and Geetha
    Philipupillai, for the intervener the David Asper Centre for Constitutional
    Rights

Emily Lam and Marianne Salih, for the
    intervener Criminal Lawyers Association

Annamaria Enenajor, for the intervener
    Urban Alliance on Race Relations

Anil K. Kapoor and Victoria M. Cichalewska,
    for the intervener Canadian Civil Liberties Association

Taufiq Hashmani, for the intervener
    Canadian Muslim Lawyers Association

Saman Wickramasinghe and Zach Kerbel,
    for the interveners South Asian Legal Clinic of Ontario, Chinese and Southeast
    Asian Legal Clinic, and Colour of Poverty/Colour of Change

Heard: February 11, 2021 by
    video conference

On appeal from the sentence imposed on
    July 19, 2018 by Justice Shaun S. Nakatsuru of the Superior Court of Justice, with
    reasons reported at 2018 ONSC 5186, 422 C.R.R. (2d) 154.

By the Court:

introduction

[1]

It is beyond doubt that anti-Black racism,
    including both overt and systemic anti-Black racism, has been, and continues to
    be, a reality in Canadian society, and in particular in the Greater Toronto Area.
    That reality is reflected in many social institutions, most notably the
    criminal justice system. It is equally clear that anti-Black racism can have a
    profound and insidious impact on those who must endure it on a daily basis: see
R. v. Le
, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 89-97;
R. v.
Theriault
,
    2021 ONCA 517, at para. 212, leave to appeal to S.C.C. requested, 39768 (July
    19, 2021);
R. v. Parks
(1993), 15 O.R. (3d) 324 (C.A.), at p. 342,
    leave to appeal refused, [1993] S.C.C.A. No. 481; see also Ontario Human Rights
    Commission,
A Collective Impact: Interim report on the inquiry into racial
    profiling and racial discrimination of Black persons by the Toronto Police
    Service

(Toronto: Government of Ontario, 2018), at p. 19;
Ontario
    Association of Childrens Aid Societies,
One Vision One
    Voice: Changing the Child Welfare System for African Canadians
(Toronto: Ontario Association of Childrens Aid Societies, 2016), at p. 29
. Anti-Black racism must be acknowledged, confronted, mitigated and,
    ultimately, erased. This appeal requires the court to consider how trial judges
    should take evidence of anti-Black racism into account on sentencing.

overview

[2]

On
    June 28, 2017, a jury found the appellant, Kevin Morris, guilty of possession
    of a loaded prohibited/restricted handgun, contrary to s. 95 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, carrying
    a concealed weapon, contrary to s. 90 of the
Criminal Code
, and two other related-gun charges under ss. 91 and
    92 of the
Criminal Code
. The trial judge stayed the charge arising under s. 91 and entered
    convictions on the other charges. All of the charges arose out of Mr. Morriss possession
    of a loaded .38 calibre Smith & Wesson handgun. Except for the purposes of fixing
    the sentence on each charge, there is no need in these reasons to examine the
    charges separately.

[3]

In July 2018, the trial judge sentenced Mr.
    Morris to 1 day in jail to be followed by 18 months probation.
0F
[1]
In imposing sentence, the trial judge concluded the respondent
    should receive a sentence of 15 months plus probation for 18 months. Following
    deductions for breaches of the
Canadian Charter of Rights and Freedoms
(3 months) and pretrial custody (243 days at a rate of 1.5:1), Mr. Morris was
    left with a net sentence of 1 day plus 18 months probation.

[4]

The Crown seeks leave to appeal the sentence
    imposed. The Crown contends the sentence is manifestly unfit and the trial
    judge made several material errors in his reasons, particularly in his
    treatment of the evidence led by Mr. Morris concerning the impact of overt and institutional
    anti-Black racism. The Crown argues that the decisions of this court in
R.
    v. Borde
(2003), 63 O.R. (3d) 417 (C.A.), and
R. v. Hamilton
(2004), 72 O.R. (3d) 1 (C.A.), remain good law. These cases acknowledge that an
    offenders personal circumstances, including those tied to overt and
    institutional racism and its multi-faceted effects, can be relevant in
    determining an appropriate sentence. Their ultimate impact on the sentencing
    process will, as with other facts relevant to sentencing, depend on the specifics
    of the individual case.

[5]

Crown counsel acknowledges the reality of overt
    and institutional racism and its negative impact, particularly within the
    criminal justice system. Crown counsel accepts that the courts, and in
    particular trial judges, must frankly acknowledge that reality and take it into
    account within the sentencing scheme set out by Parliament.

[6]

The Crown maintains, however, that the trial
    judge allowed his consideration of the impact of overt and institutional racism
    on Mr. Morris to overwhelm all other considerations relevant to fashioning a
    fit sentence. The result, says the Crown, is a sentence that fails to reflect
    the seriousness of the offences and falls well below the range of appropriate
    sentences established in decisions from this court and the Supreme Court of
    Canada.

[7]

The Crown submits a fit sentence is three years.
    The Crown accepts, however, in light of the passage of time and subsequent
    events, that the incarceration of Mr. Morris at this time would be
    inappropriate.
1F
[2]
The Crown asks the court to vary the sentence to three years and
    permanently stay the imposition of that sentence.

[8]

Counsel for Mr. Morris submit the trial judge
    properly admitted, considered, and assessed the detailed and cogent evidence of
    longstanding overt and institutional systemic anti-Black racism and how that
    racism negatively affected Mr. Morris. Counsel do not equate the sentencing of Black
    offenders with the sentencing of Indigenous offenders. They do contend,
    however, that the use of social context evidence in fashioning the appropriate
    sentence, a requirement when sentencing Indigenous offenders, should also play
    a prominent role in determining the appropriate sentence for Black offenders.

[9]

Counsel for Mr. Morris do not ask the court to
    overrule
Borde
or
Hamilton
.
    They submit the court can build on the
dicta
in those cases. Counsel
    argue the trial judge in this case had a wealth of information, combined with
    the insight of experts, allowing him to much more fully understand the pervasive
    impact of racism on Mr. Morris throughout his life and its relevance in determining
    the appropriate sentence for him. Counsel contend the methodology employed by
    the trial judge sits comfortably with the
dicta
in
Borde
and
Hamilton
and reflects the powerful picture painted by the evidence led by
    the defence on sentencing. Lastly, counsel for Mr. Morris remind the court that
    it must defer to the trial judges factual findings, absent a determination those
    findings are unreasonable. Counsel submit the appeal should be dismissed.

[10]

Several parties intervened. By and large, they
    support the approach taken by the trial judge on sentencing. There are some
    differences in the positions taken by the interveners. Most notably, Aboriginal
    Legal Services takes the position that the detailed
Gladue

    jurisprudence developed in reference to the application to Indigenous offenders
    of the restraint principle in s. 718.2(e) of the
Criminal Code
, cannot
    be applied to non-Indigenous offenders: see
R. v. Gladue
, [1999] 1
    S.C.R. 688.

[11]

For the reasons set out below, we would allow
    the appeal and vary the sentence to one of two years, less a day, to be
    followed by probation on the terms imposed by the trial judge. We would
    permanently stay that sentence.

[12]

This appeal raises important questions of
    general application in sentencing, as well as specific issues relating to this
    case. Our reasons are long. We will begin with a point-form summary of what we regard
    as the principal conclusions in respect of the broader issues. We will then
    outline the evidence at trial, the proceedings on a motion to stay the charges,
    and the evidence led on sentencing by counsel for Mr. Morris. Finally, we will turn
    to the arguments made on the appeal.

principal
    conclusions

[13]

For the reasons set out below, we come to the
    following conclusions:

·

The trial judges task in sentencing is to
    impose a just sentence tailored to the individual offender and the specific
    offence in accordance with the principles and objectives laid out in Part XXIII
    of the
Criminal
    Code
;

·

Social context evidence relating to the
    offenders life experiences may be used where relevant to mitigate the
    offenders degree of responsibility for the offence and/or to assist in the
    blending of the principles and objectives of sentencing to achieve a sentence
    which best serves the purposes of sentencing as described in s. 718;

·

The gravity or seriousness of an offence is
    determined by its normative wrongfulness and the harm posed or caused by that
    conduct in the circumstances in which the conduct occurred. Accordingly, unlike
    when assessing the offenders degree of personal responsibility, an offenders
    experience with anti-Black racism does not impact on the seriousness or gravity
    of the offence;

·

Courts may acquire relevant social context
    evidence through the proper application of judicial notice or as social context
    evidence describing the existence, causes and impact of anti-Black racism in
    Canadian society, and the specific effect of anti-Black racism on the offender;

·

Consistent with the rules of admissibility, a
    generous gateway for the admission of objective and balanced social context
    evidence should be provided;

·

The
Gladue
methodology does not apply to
    Black offenders. However, that jurisprudence can, in some respects, inform the
    approach to be taken when assessing the impact of anti-Black racism on
    sentencing.

the evidence at
    trial

[14]

On December 13, 2014, shortly after midnight, a
    man contacted the police, claiming that about 20 minutes earlier he had been
    the victim of a home invasion robbery. He described the robbers as four Black
    men.

[15]

Two plainclothes officers in separate unmarked
    vehicles responded to the police radio call reporting the robbery. They saw
    four Black men walking together in a parking lot in the immediate vicinity of
    the robbery. Two of the men went to one vehicle parked in the lot and Mr.
    Morris and the fourth man walked toward a second vehicle. One of the officers used
    his vehicle to block the path of the vehicle Mr. Morris was walking toward. This
    officer identified himself as a police officer and told the two men to stop. Mr.
    Morris fled, the other individual remained.

[16]

The officer in the other unmarked vehicle moved
    his vehicle quickly across the parking lot in an effort to cut Mr. Morris off. According
    to the officers evidence, he had stopped his vehicle when Mr. Morris ran into
    it and fell to the ground. Mr. Morris got up quickly and fled. He scaled a high
    fence and ran into the parking lot of an adjacent No Frills grocery store.

[17]

By the time Mr. Morris was running across the No
    Frills parking lot, uniformed police officers were in pursuit. Officer Faduck
    quickly gained ground on Mr. Morris. He identified himself as a police officer
    and told Mr. Morris to stop. Mr. Morris kept running.

[18]

As Officer Faduck followed Mr. Morris, it
    appeared to him that Mr. Morris was trying to remove his jacket as he ran.
    Officer Faduck saw Mr. Morris duck into a stairwell. When he re-emerged from
    the stairwell, he was no longer wearing his jacket.

[19]

Officer Faduck continued his pursuit. Shortly
    afterward, he caught up to, and tackled Mr. Morris, and placed him under arrest
    for robbery.

[20]

After Mr. Morris was arrested, Officer Faduck
    went back to the stairwell. He found a jacket in a puddle on the ground. In the
    jacket he found a loaded .38 calibre Smith & Wesson handgun. Mr. Morris was
    taken into custody. As it turned out, there was no evidence to charge Mr.
    Morris or any of his three companions with the robbery.

[21]

Mr. Morris testified at trial. He told a very
    different story. According to him, he and three friends were walking across a
    parking lot. Mr. Morris moved toward the edge of the parking lot, looking for a
    place to urinate. Suddenly, a vehicle approached him, moving very quickly
    across the parking lot toward him. The vehicle struck Mr. Morris and knocked
    him to the ground. Mr. Morris saw someone getting out of the car. He got up and
    ran, fearing that he was about to be attacked. Mr. Morris had been stabbed and
    seriously injured about 22 months earlier. According to Mr. Morris, the person
    getting out of the vehicle that struck him did not identify himself as a police
    officer and Mr. Morris had no reason to think he was a police officer.

[22]

Mr. Morris testified that he ran across the
    parking lot, scaled the fence and ran into the No Frills parking lot.
    Initially, he did not see anyone behind him.

[23]

Mr. Morris indicated, that as he ran, he heard
    the person chasing him say something and he looked around. He realized it was a
    uniformed police officer chasing him, so he stopped. The officer tackled him
    and struck him several times.

[24]

Mr. Morris indicated he was wearing an expensive
    new jacket that night. According to him, the jacket caught on the fence when he
    was climbing over it. He last saw it hanging on the fence. Mr. Morris denied ducking
    into the stairwell of the No Frills parking lot. He also denied throwing his
    jacket into a puddle in the stairwell. Mr. Morris insisted he never had
    possession of a gun. It was implicit in Mr. Morriss testimony that the police took
    the jacket from the fence, placed it in the stairwell and planted the gun in
    the pocket of the jacket.

[25]

The jurys verdicts make it clear the jury was
    satisfied beyond a reasonable doubt Mr. Morris had possession of the loaded
    handgun and was lying when he testified he did not leave his jacket in the
    stairwell and did not have possession of the gun found in the jacket.

the stay
    application

[26]

At the outset of his trial, the respondent
    brought a motion for a stay of proceedings alleging several
Charter
violations. The trial judge dismissed the motion:
R. v. Morris
, 2017 ONSC
    4298, 387 C.R.R. (2d) 154. The trial judges ruling is not challenged on
    appeal. Some of the trial judges findings are, however, relevant to the
    sentencing proceedings.

[27]

The trial judge made detailed findings of fact,
    including the following:

·

the two plainclothes officers, who initially
    approached Mr. Morris in their vehicles, were engaged in a lawful investigation
    of the robbery;

·

the plainclothes officers identified themselves
    as police officers, but the trial judge was not satisfied Mr. Morris necessarily
    heard and understood what they said before he ran;

·

Officer Faduck identified himself as a police
    officer when he was chasing Mr. Morris. Officer Faduck was in uniform. Mr.
    Morris heard and understood Officer Faduck, but kept running and did not stop until
    Officer Faduck tackled and arrested him; and

·

Mr. Morris removed his jacket as he was running
    and threw it in the stairwell.

[28]

The trial judge held that the police had grounds
    to detain Mr. Morris for investigative purposes. However, Mr. Morris was not detained
    prior to his arrest by Officer Faduck. Officer Faduck had reasonable and
    probable grounds to arrest Mr. Morris.

[29]

The trial judge found that the vehicle driven by
    one of the plainclothes officers struck Mr. Morris and ran over his left foot,
    causing an injury that required medical attention. The trial judge rejected the
    officers evidence that Mr. Morris ran into the vehicle after the vehicle had
    stopped. The trial judge concluded that, while the officer was engaged in a
    lawful attempt to stop a fleeing suspect and did not intend to hit Mr. Morris
    with his vehicle, he was driving quickly, aggressively and, in all of the
    circumstances, very careless[ly]. The trial judge held that when the officer
    struck Mr. Morris with his vehicle, he violated Mr. Morriss rights under s. 7
    of the
Charter
.

[30]

The trial judge rejected Mr. Morriss claim the
    police used excessive force in the course of his arrest and confinement. The
    trial judge found Mr. Morris was not credible on these issues.

[31]

The trial judge also accepted, again contrary to
    Mr. Morriss evidence, that Mr. Morris was advised of his right to counsel and
    given access to counsel in a timely fashion. The trial judge did, however, find
    a violation of s. 10(b) of the
Charter
based on certain questions
    which the officers put to Mr. Morris before he had a chance to exercise his
    right to counsel. The trial judge described the questions as relatively innocuous
    and the breach as far from  egregious. He also noted the Crown did not seek
    to rely on any of the statements made by Mr. Morris.

[32]

In dismissing the motion for a stay of
    proceedings, the trial judge described the
Charter
breaches as
    relatively minor. He further indicated that if Mr. Morris was convicted,
    those breaches could potentially be taken into account on sentencing. The trial
    judge did just that when he imposed sentence, reducing what would otherwise
    have been a sentence of 15 months to 12 months.

the evidence on
    sentencing

[33]

Mr. Morris was almost 23 years old when he committed
    these offences. He was 26 at the time of sentencing.

[34]

Mr. Morris did not have a criminal record at the
    time of sentencing. According to information provided by Mr. Morris, he had
    been charged with offences in the past, and on one occasion, spent a couple of
    weeks in a correctional facility for young offenders. It does not appear that
    Mr. Morris spent any appreciable time in custody on adult charges until he was arrested
    on the charges related to the home invasion in April 2017.

[35]

Mr. Morris had been attacked and stabbed by an
    acquaintance in February 2013. It is not clear what motivated the stabbing. Mr.
    Morris suffered serious internal injuries requiring surgery. Those injuries
    have resulted in ongoing medical problems which have interfered with Mr. Morriss
    ability to obtain employment, and caused him problems while incarcerated after
    April 2017. The stabbing has also had a negative effect on Mr. Morriss mental health.

[36]

Mr. Morriss family doctor sent him for a
    psychiatric consultation in January 2014, about 10 months after Mr. Morris was
    stabbed and about 11 months before he committed these offences. The consultation
    report included the following:

Mr. Morris is a 22-year-old gentleman with a
    history of a traumatic event which included severe stab wounds approximately
    one year ago. The exact circumstances around this event are unknown as Mr. Morris
    mentioned that it was a robbery at the time. He does suffer from symptoms of
    post-traumatic stress disorder after this event, including flashbacks,
    nightmares, re-experiencing the event, and always feeling very hypervigilant
    and on edge. He feels extremely socially isolated as a result and essentially
    is nonfunctional. He is not working, unable to go to school, and stays home all
    day by himself.

[37]

The psychiatrist recommended a medication regime
    and follow-up psychotherapy. Mr. Morris did not take the medication and did not
    return to the psychiatrist for psychotherapy.

[38]

In a statement to the court at sentencing, Mr.
    Morris apologized to his mother and promised her he would change and make
    something out of his life.

The Social
    Context Evidence

[39]

Counsel for Mr. Morris tendered two reports at
    sentencing. The first, entitled Expert Report on Crime, Criminal Justice and
    the Experience of Black Canadians in Toronto, Ontario, describes and analyzes
    the research that has been done on the existence, causes, and impact of anti-Black
    racism in Canadian society, especially in the Toronto area. The report provides
    an historical and social account of the Black experience in Canada. It draws a
    connection between the long history in Canada of overtly racist attitudes and
    social practices and present day institutional and systemic discrimination
    against Black people. The report explains how systemic discrimination in many
    social institutions marginalizes Black people in communities marked by poverty,
    diminished economic and employment opportunities, and a strong and aggressive
    police presence. These factors combine to leave many in the Black community
    with the reasonable perception that Canadian society, and in particular the criminal
    justice system, is racist and unfair.

[40]

The authors conclude:

It is our opinion that the social
    circumstances of Black Canadians in general, and of Black male Torontonians in
    particular, should be viewed as criminogenic. Elevated levels of offending in
    the types of crimes that typically come to the attention of the police (street
    crimes as opposed to white-collar and corporate crimes), combined with
    discrimination in the justice system itself have resulted in the gross over-representation
    of Black Canadians in our provincial and federal correctional systems. Whereas
    no one individual should be completely absolved of their own responsibility
    when it comes to offending behaviour, the social realities that have produced
    or contributed to such behaviour can be acknowledged, and serve to guide
    judicial decision making.

[41]

At the sentencing proceedings, the Crown argued
    that this report was inadmissible as the trial judge could properly take
    judicial notice of the existence of overt and systemic anti-Black racism in
    Canadian society and the criminal justice system in particular. The trial judge
    rejected the Crowns arguments and admitted the report. On appeal, the Crown
    takes no issue with the admissibility of this report. We agree with the Crowns
    concession.

[42]

We accept, as did the trial judge, that the
    trial judge could have taken judicial notice of many of the historical and
    social facts referred to in the report: see e.g.,
Le
, at paras. 82-88;
Theriault
, at paras. 212-18;
R. v. Anderson
, 2021 NSCA 62 (
Anderson
    (NSCA)
)
, at para. 111; and
R. v. Jackson
, 2018 ONSC 2527, 46 C.R. (7th) 167, at paras. 81-92.
    Even though much of the report could have been the subject of judicial notice,
    the admission of the report as a whole had value for sentencing purposes. The
    report gave the trial judge the benefit of a scholarly, comprehensive, and
    compelling description of the widespread and pernicious effect of anti-Black
    racism. As the trial judge observed, it helped him understand how Mr. Morris
    ended up where he did.

[43]

The report bears reading and re-reading by those
    called upon to prosecute, defend, and sentence Black offenders, particularly
    young Black offenders. The report is easily accessible as the trial judge
    helpfully attached a copy as an appendix to his reasons for sentence.

[44]

The second report, a Social History of Kevin
    Morris (the Sibblis Report), was prepared by Camisha Sibblis, a clinical social
    worker and PhD candidate with a research focus on education and social work.
    Ms. Sibblis, who also co-authored the first report, has had extensive clinical
    experience, much of it involving assessments of young persons, often Black
    youth, for various social agencies. In addition, Ms. Sibblis conducts anti-Black
    racism workshops aimed at educating participants on the manner in which
    systemic anti-Black racism impacts on Black youth in various contexts, including
    in the educational system.

[45]

Ms. Sibblis was asked to review Mr. Morriss
    social history and trajectory with a view to providing an analysis of the
    impact of systemic racism on his experiences in and out of the justice system. As
    we understand the Sibblis Report, it is intended to bring the more general social
    context information provided in the first report home to the specific
    circumstances of Mr. Morriss life experiences. In effect, the Sibblis Report
    sought to demonstrate how the negative consequences of anti-Black racism, identified
    and described in the first report, were very much a reality for Mr. Morris.

[46]

The Sibblis Report provides a biography of Mr.
    Morris and his mother, Esta Reid. Ms. Reid arrived in Canada from Jamaica in
    1978. Mr. Morris was born in January 1992. Although Mr. Morriss father did not
    live with Mr. Morris and his mother, Mr. Morris saw him regularly and had a
    close relationship with him. Unfortunately, his father died when Mr. Morris was
    seven years old. Ms. Reid had to assume all the parental obligations, while at
    the same time becoming the sole provider for the family. Ms. Reid worked a
    variety of jobs, many of which involved long hours.

[47]

There is a very strong bond between Mr. Morris
    and his mother. He loves her very much and she has done everything she can to
    provide for Mr. Morris.

[48]

The Sibblis Report traces Mr. Morriss
    experiences with the educational system and refers to his interactions with the
    Childrens Aid Society. The report describes the injuries suffered by Mr.
    Morris when he was stabbed in 2013 and the ongoing medical problems he has
    suffered. The report sets out Mr. Morriss experiences within the community in
    which he grew up and how he has come to perceive that community as a
    threatening and unsafe place. The report also summarizes Mr. Morriss perceptions
    of how he has been treated by the police and correctional authorities.

[49]

In her report, Ms. Sibblis writes:

Under the weight of anti-Black racism, Mr.
    Morris had little option than to live his life as best he could having been
    influenced by the streets. His overall social circumstances, while not excusing
    his behaviour, have undeniably contributed to Mr. Morris being involved with
    the justice system today.

Mr. Morris has also lived, and continues to
    live, in constant fear. He fears the police, other community members, friends
    and foes alike, rivals, unknown dangers, life, death. He fears fellow inmates.
    He fears for his mothers safety. Mr. Morris fears both freedom and incarceration.
    Mr. Morriss imagination for what he could become was significantly limited by
    fear, anxiety, and actual threats; it is not positively fostered as his
    suffering was not sufficiently tended to.

At this time, it would be appropriate to
    provide him with the support and treatment he ought to have received long ago.
    Early intervention might well have changed Mr. Morriss trajectory and it
    appears as though anti-Black racism was a contributing factor in this omission.
    Since Mr. Morris shows empathy, and has many redeeming qualities, it is a
    reasonable expectation that he will respond well to mental health treatment.

[50]

The persons contacted by Ms. Sibblis described Mr.
    Morris as a person with many positive personal characteristics, notably a
    strong sense of empathy. However, in Ms. Sibbliss opinion, those
    characteristics have been largely submerged in a lifetime of negative experiences,
    many of which are tied, in part at least, to institutional or overt racism.
    According to Ms. Sibblis, the combined impact of those events have left Mr.
    Morris physically and emotionally damaged, unable to obtain meaningful
    employment, in constant fear for his physical safety from both people in his
    community and the police, and without hope for the future.

[51]

In preparing her report, Ms. Sibblis interviewed
    Mr. Morris, his mother, his pastor, and a family friend. She received a supporting
    letter from a social worker and childhood friend. Ms. Sibblis obtained extensive
    documentation from various schools and educational programs Mr. Morris had attended,
    as well as some medical records. We do not understand the Crown to question the
    admissibility of the documentation gathered by Ms. Sibblis, or to suggest that
    the trial judge could not rely on the factual content of that documentation if
    the trial judge concluded it was reliable.

[52]

A great deal of the information relied on by Ms.
    Sibblis, particularly about Mr. Morriss interactions with the police and
    correctional authorities, came exclusively from Mr. Morris. In parts of her
    report, Ms. Sibblis refers to these as Mr. Morriss perceptions, but in other
    parts of her report she treats them as established facts.

[53]

At trial, the Crown took issue with the Sibblis
    Report, arguing Ms. Sibblis was not qualified to give the opinions contained in
    the report and that much of the information in the report was unreliable. The
    Crown asked the trial judge to conduct a
voir dire
to determine
    whether Ms. Sibblis was qualified to give the opinions contained in her report.

[54]

The trial judge declined to hold a
voir dire
.
    He admitted the Sibblis Report, noting it was similar to the report he received
    in
Jackson
and to the Impact of Race and Cultural Assessments (IRCAs)
    received in criminal courts in Nova Scotia: see
Anderson (NSCA)
, at
    paras. 104-10. The trial judge was anxious to have whatever information he
    could about Mr. Morris. He made it clear he was not bound by any opinion Ms.
    Sibblis might give, and would make his own independent evaluation of the relevance
    and reliability of any information in the report. The trial judge also
    permitted the Crown to cross-examine Ms. Sibblis, both to ensure procedural
    fairness and to enhance the trial judges ability to accurately assess the
    reliability of the contents of the report. Her evidence added little to her
    report.

[55]

On appeal, the Crown accepts that the Sibblis
    Report was properly admissible to the extent that it provided biographical
    information and documents relevant to that information. We also do not
    understand the Crown to suggest that the report was not admissible insofar as
    it spoke to Mr. Morriss background, character, and circumstances. The Crown
    argues that Ms. Sibblis offered various opinions she was not qualified to give.
    We will address that argument below.

the arguments

A.

the relevance of evidence of anti-black racism on sentencing

[56]

A sentencing judge has a specific and
    focused task. A sentencing judge must impose a sentence tailored to the
    individual offender and the specific offence. While evidence relating to the
    impact of anti-Black racism on an offender will sometimes be an important consideration
    on sentencing, the trial judges task is not primarily aimed at holding the
    criminal justice system accountable for systemic failures. Rather, the
    sentencing judge must determine a fit sentence governed by the fundamental tenets
    of criminal responsibility, including free will, and the purposes, principles
    and objectives of sentencing laid down in Part XXIII of the
Criminal Code
:
R. v. Nur
, 2015 SCC 15, [2015] 1
    S.C.R. 773 (
Nur (SCC)
),
    at para. 43, affg 2013 ONCA 677, 117 O.R. (3d) 401 (
Nur (ONCA)
);
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 39-45;
Hamilton
, at paras. 2, 87; see also Michael C. Plaxton,
    Nagging Doubts About the Use of Race (and Racism) in Sentencing (2003) 8 C.R.
    (6th) 299, at pp. 306-7.

(i)

The Statutory Framework

[57]

The comprehensive
    statutory
scheme governing sentencing first
    appeared in the
Criminal Code
in 1996:
An Act to amend the
    Criminal Code (sentencing) and other Acts in consequence thereof
, S.C.
    1995, c. 22. Section 718 identifies the fundamental purpose of sentencing as
    being:

to protect society and to
    contribute, along with crime prevention initiatives, to respect for the law and
    the maintenance of a just, peaceful and safe society by imposing just sanctions.

[58]

Section 718 recognizes that just sanctions will
    have one or more of the objectives identified in ss. 718(a)-(f). Those
    objectives will not necessarily point toward the same sentencing disposition. The
    individualization of the sentencing process requires sentencing judges to
    prioritize and blend the different objectives of sentencing so as to properly
    reflect the seriousness of the offence and the responsibility of the offender. The
    objectives identified in s. 718 are:

(a) to denounce unlawful conduct and
    the harm done to victims or to the community that is caused by unlawful
    conduct;

(b) to deter the offender and other
    persons from committing offences;

(c) to separate offenders from
    society, where necessary;

(d) to assist in rehabilitating
    offenders;

(e) to provide reparations for harm
    done to victims or to the community; and

(f) to promote a sense of
    responsibility in offenders, and acknowledgment of the harm done to victims or
    to the community.

[59]

The search for a just sanction which reflects a
    proper blending of the objectives of sentencing is guided by the loadstar of
    proportionality. This fundamental principle of sentencing is laid down in s.
    718.1:

A sentence must be proportionate to
    the gravity of the offence and the degree of responsibility of the offender.

[60]

Additional guiding principles are found in ss. 718.2(b)-(e):

(b) a sentence should be similar to
    sentences imposed on similar offenders for similar offences committed in
    similar circumstances [
the parity principle
];

(c) where consecutive sentences are
    imposed, the combined sentence should not be unduly long or harsh [
the totality principle
];

(d) an offender should not be
    deprived of liberty, if less restrictive sanctions may be appropriate in the
    circumstances [
the restraint principle
];
    and

(e) all available sanctions, other
    than imprisonment, that are reasonable in the circumstances and consistent with
    the harm done to victims or to the community should be considered for all
    offenders, with particular attention to the circumstances of Aboriginal
    offenders [
the restraint principle as
    applied to incarceration
].

(ii)

The Proportionality Principle

[61]

Proportionality is the fundamental and
    overarching principle of sentencing. The other sentencing principles set out in
    s. 718.2 must be taken into account and blended in a manner which produces a
    sentence that is proportionate to the gravity of the offence and the degree of
    responsibility of the offender. A sentence which does not comply with the
    proportionality principle is an unfit sentence:
R. v. Ipeelee
, 2012
    SCC 13, [2012] 1 S.C.R. 433, at para. 37.

[62]

Proportionality measured by reference to both
    the offence and the offender has been an integral part of sentencing in Canada since
    long before the enactment of s. 718.1: see
R. v. M. (C.A.)
, [1996] 1
    S.C.R. 500, at para. 40. Under the statutory scheme, proportionality is
    central:
R. v. Friesen
, 2020 SCC 9, 391 C.C.C. (3d) 309, at para.
    30; see also
Hamilton
, at para. 89.

[63]

Jurisprudence from the Supreme Court of Canada postdating
    the enactment of s. 718.1 repeatedly confirms the paramount role of
    proportionality in sentencing. As explained in
Ipeelee
, at para. 37:

The fundamental principle of sentencing (i.e.,
    proportionality) is intimately tied to the fundamental purpose of sentencing
    the maintenance of a just, peaceful and safe society through the imposition of
    just sanctions. Whatever weight a judge may wish to accord to the various
    objectives and other principles listed in the
Code
, the resulting
    sentence must respect the fundamental principle of proportionality. Proportionality
    is the
sine qua non
of a just sanction. First, the principle ensures
    that a sentence reflects the gravity of the offence. This is closely tied to
    the objective of denunciation. It promotes justice for victims and ensures
    public confidence in the justice system.

Second, the principle of proportionality
    ensures that a sentence does not exceed what is appropriate, given the moral
    blameworthiness of the offender. In this sense, the principle serves a limiting
    or restraining function and ensures justice for the offender. In the Canadian
    criminal justice system, a just sanction is one that reflects both perspectives
    on proportionality and does not elevate one at the expense of the other.

[64]

In
Nur (SCC)
, at para. 43, McLachlin
    C.J. drew a straight line from proportionality to the imposition of a just
    sentence under s. 718:

It is no surprise, in view of the constraints
    on sentencing, that imposing a proportionate sentence is a highly individualized
    exercise, tailored to the gravity of the offence, the blameworthiness of the
    offender, and the harm caused by the crime. Only if this is so can the public
    be satisfied that the offender deserved the punishment he received and feel a
    confidence in the fairness and rationality of the system. [Citations and quotation
    marks omitted.]

[65]

In
Nasogaluak
,
at para. 42, LeBel J. described the duality
    of proportionality. On the one hand, it looks to the offenders culpability and
    responsibility. On the other, proportionality is measured by reference to the
    seriousness of the crime. LeBel J. said:

It [proportionality] requires that a sentence
    not
exceed
what is just and appropriate, given the moral
    blameworthiness of the offender and the gravity of the offence. In this sense,
    the principle serves a limiting or restraining function. However, the
    rights-based, protective angle of proportionality is counter-balanced by its
    alignment with the just desserts philosophy of sentencing, which seeks to
    ensure that offenders are held responsible for their actions and that the sentence
    properly reflects and condemns their role in the offence and the harm they
    caused. [Citations omitted; emphasis in original.]

[66]

In
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089, at para. 12, the majority said:

[P]roportionality is the cardinal principle
    that must guide appellate courts in considering the fitness of a sentence
    imposed on an offender. The more serious the crime and its consequences, or the
    greater the offenders degree of responsibility, the heavier the sentence will
    be. In other words, the severity of a sentence depends not only on the
    seriousness of the crimes consequences, but also on the moral blameworthiness
    of the offender. Determining a proportionate sentence is a delicate task.

(a)

Proportionality: The Gravity of the Offence

[67]

An assessment of the gravity or seriousness of the
    offence is one part of the proportionality analysis. The seriousness of the
    offence is reflected in the essential elements of the offence; the more
    blameworthy the required
mens rea
, and the more harmful the prohibited
    conduct, the more serious the crime. The gravity of the offence is also
    reflected in the applicable penalty provision. In addition, the specific circumstances
    surrounding the commission of the offence can make the crime more or less serious.
    Parliament has identified some of the features which aggravate the seriousness of
    an offence in s. 718.2(a): see
Hamilton
, at para. 90;
Ipeelee
,
    at paras. 53-55.

[68]

As described in
Friesen
, at paras.
    75-76, the gravity of an offence takes into account the normative wrongfulness
    of the conduct and the harm posed or caused by the conduct. Gun crimes
    involving the possession of loaded, concealed firearms in public places pose a
    real and immediate danger to the public, especially anyone who interacts with
    the gun holder. When the person with the gun is confronted by the police, who
    are engaged in the lawful execution of their duties, the risk increases dramatically.
    It increases yet again when the gun holder flees, and still again when the gun
    holder discards the weapon in a public place. A person who carries a concealed,
    loaded handgun in public undermines the communitys sense of safety and
    security. Carrying a concealed, loaded handgun in a public place in Canada is
    antithetical to the Canadian concept of a free and ordered society: see
Nur
    (ONCA)
, at paras. 82, 206;
R. v. Felawka
, [1993] 4 S.C.R. 199, at
    pp. 214-15.

[69]

The seriousness or gravity of an offence affects
    the ordering and weighing of the various objectives of sentencing identified in
    s. 718. Generally speaking, the more serious the offence, the stronger the need
    to denounce the unlawful conduct and deter the offender and others from further
    offending. Parliament has drawn the connection between the seriousness of the
    offence, and denunciation and deterrence by identifying various categories of
    serious crimes (e.g., crimes against children, the police, and vulnerable
    persons) for which primary consideration must be given to the objectives of
    denunciation and deterrence:
Criminal Code
, ss. 718.01, 718.02,
    718.03, 718.04.

[70]

When the gravity of the offence demands an
    emphasis on the objectives of denunciation and deterrence, the proportionality
    principle will most often require a disposition that includes imprisonment.
    Wagner J. (as he then was) observed in
Lacasse
, at para. 6:

[A]s in all cases in which general or specific
    deterrence and denunciation must be emphasized, the courts have very few
    options other than imprisonment for meeting these objectives, which are
    essential to the maintenance of a just, peaceful and law
‑
abiding society.

[71]

Apart from the specific provisions in the
Criminal
    Code
, Canadian courts have long recognized that the gravity of certain kinds
    of offences requires sentences emphasizing denunciation and general deterrence.
    Gun crimes involving the unlawful possession of loaded handguns in public
    places fall squarely within that category. McLachlin C.J., in
Nur (SCC)
,
    at para. 82, observed that a three-year sentence may be appropriate for the
    vast majority of offences under s. 95: see also
Nur (ONCA)
, at para.
    206;
R. v. Mansingh
, 2017 ONCA 68, at para. 24;
R. v. Marshall
,
    2015 ONCA 692, 340 O.A.C. 201, at paras. 47-49; and
R. v. Danvers
(2005), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77.

[72]

The trial judge acknowledged that deterrence and
    denunciation were the most important objectives when sentencing Mr. Morris. He
    accepted that those objectives required a significant jail term.

[73]

The trial judge went on, however, to hold that
    systemic racism and its effects:

must surely have some impact upon the
    application of general deterrence and denunciation. It can impact upon on [
sic
]
    how we characterize the seriousness of the offence.

[74]

The trial judge indicated that if systemic
    racism effectively limited the choices available to an offender, general
    deterrence and denunciation should have a less significant role in sentencing.

[75]

With respect, we do not agree that the gravity
    or seriousness of Mr. Morriss offences is diminished by evidence which sheds
    light on why he chose to commit those crimes. We do agree with the trial judge
    that an offenders life experiences can certainly influence the choices made by
    the offender, and can explain, to some degree at least, why an offender made a
    choice to commit a particular crime in the specified circumstances. Those life
    experiences can include societal disadvantages flowing from systemic anti-Black
    racism in society and the criminal justice system.

[76]

Evidence that an offenders choices were limited
    or influenced by his disadvantaged circumstances, however, speaks to the
    offenders moral responsibility for his acts and not to the seriousness of the
    crimes. Possession of a loaded, concealed handgun in public is made no less serious,
    dangerous, and harmful to the community by evidence that the offenders
    possession of the loaded handgun can be explained by factors, including
    systemic anti-Black racism, which will mitigate, to some extent, the offenders
    responsibility: see
Hamilton
, at paras. 134-39;
R. v. Hazell
,
    2020 ONCJ 358, at paras. 30-32; see also Dale E. Ives, Inequality, Crime and
    Sentencing:
Borde
,
Hamilton
and the Relevance of Social
    Disadvantage in Canadian Sentencing Law (2004) 30 Queen's L.J. 114, at p. 149.

[77]

It is important to preserve the distinction
    between factors relevant to the seriousness or gravity of the crime on the one
    hand, and factors relevant to the offenders degree of responsibility on the
    other. Unless the distinction is maintained, the proportionality principle may
    be misapplied. A sentence, like the sentence imposed here, which wrongly
    discounts the seriousness of the offence to reflect factors which are actually
    relevant to the offenders degree of responsibility, will almost inevitably
    produce a sentence that does not adequately reflect the seriousness of the
    offence and, therefore, fails to achieve the requisite proportionality.

[78]

Nothing in the social context evidence adduced
    on Mr. Morriss behalf detracted from the seriousness of his crimes, or the
    need to denounce that criminal conduct and deter others from committing similar
    crimes. Mr. Morriss own experiences in his community, as related to Ms.
    Sibblis, strongly make the case for the very real and deep harm caused to
    everyone in the community by persons who, like Mr. Morris, choose to engage in dangerous
    criminal conduct that inevitably compromises the security of the entire community.

[79]

The social context evidence can, however,
    provide a basis upon which a trial judge concludes that the fundamental purpose
    of sentencing, as outlined in s. 718, is better served by a sentence which,
    while recognizing the seriousness of the offence, gives less weight to the
    specific deterrence of the offender and greater weight to the rehabilitation of
    the offender through a sentence that addresses the societal disadvantages
    caused to the offender by factors such as systemic racism.

[80]

Blending the various objectives of sentencing is
    the essence of the sentencing process. There is seldom one and only one fit
    sentence. As long as the sentence imposed complies with the proportionality requirement
    in s. 718.1, trial judges are given considerable discretion to decide how best
    to blend the various legitimate objectives of sentencing. If trial judges operate
    within that band of discretion, the different weight assigned to different
    objectives may produce different but nonetheless equally fit sentences.

[81]

In the present case, the social context evidence
    provided a basis upon which the trial judge could give added weight to the
    objective of rehabilitation and less weight to the objective of specific
    deterrence. By doing so, the trial judge would not diminish the seriousness of
    the crime, but would recognize that the ultimate sentence imposed must be
    tailored to the specific offender and the potential rehabilitation of that
    offender. As long as the sentence ultimately imposed remains proportionate to
    the offence and the offender, the actual sentence imposed would be a fit
    sentence.

[82]

In a somewhat related submission, some of the
    interveners argue that because society as a whole is complicit in the anti-Black
    racism the trial judge found played a role in Mr. Morriss commission of the
    offences, the court loses much, or at least some, of its moral authority to
    denounce the offenders conduct through the sentence imposed. If this
    submission were to be accepted, the objectives of denunciation and deterrence,
    always viewed as paramount objectives when sentencing for serious gun crimes,
    would be tempered in cases involving Black offenders by a countervailing
    objective requiring that the sentence imposed acknowledge the offenders status
    as a victim of societys racism.

[83]

On the interveners submission, the allocation
    of responsibility for the offenders crime, as between society at large and the
    offender, would become an objective of sentencing to be calibrated along with
    denunciation, deterrence, and rehabilitation. There is no such objective
    identified in s. 718 of the
Criminal Code
. Nor are we aware of any
    appellate jurisprudence recognizing the allocation of societal fault as an
    objective of sentencing.
2F
[3]
Allocating
    moral responsibility for crimes as between society at large and the individual
    offender should play no role in fixing the appropriate sentence in gun-related
    crimes:
Hamilton
, at paras. 2, 148.

[84]

If societys complicity in institutional racism
    means denunciation and general deterrence should play a lesser role in
    sentencing for serious crimes, it will follow that Black offenders who commit those
    serious crimes, such as gun crimes, will receive shorter jail sentences than other
    similarly situated non-Black offenders.

[85]

As pointed out in the Expert Report on Crime,
    Criminal Justice and the Experience of Black Canadians in Toronto, Ontario, Black
    communities experience a disproportionate share of serious violent crime in the
    Toronto area. Black youth in particular report higher levels of both violent
    victimization and violent offending than youth from other racial groups. Law-abiding
    members of those communities are the victims of overt and systemic anti-Black
    racism. They are also the victims, both direct and indirect, of the harm caused
    by gun-related crimes in their communities. Are these law-abiding members of
    the community to be told that the message of denunciation and deterrence, which
    applies to gun crimes committed in other communities, is to be muted in gun
    crimes committed against them in their community so the court can acknowledge
    the reality of anti-Black racism, a reality that those members of the community
    know only too well? We strongly doubt that more lenient sentences for the
    perpetrators of gun crimes will be seen by the law-abiding members of the
    community as a positive step towards social equality. Any failure to
    unequivocally and firmly denounce serious gun crimes, like those committed by
    Mr. Morris, through the punishment imposed, implies tolerance of those crimes when
    committed by certain offenders in certain communities.

[86]

Although we reject the claim that societal
    complicity in anti-Black racism diminishes the need to denounce and deter
    serious criminal conduct, we accept wholeheartedly that sentencing judges must
    acknowledge societal complicity in systemic racism and be alert to the
    possibility that the sentencing process itself may foster that complicity. A
    frank acknowledgement of the existence of, and harm caused by, systemic
    anti-Black racism, combined with a careful consideration of the kind of
    evidence adduced in this case, will go some distance toward disassociating the
    sentencing process from societys complicity in anti-Black racism.

(b)

Proportionality: The Offenders Degree of Responsibility

[87]

While we do not agree that evidence of the
    impact of anti-Black racism on an offender can diminish the seriousness of the
    offence, or that systemic inequalities diminish the courts authority, or
    indeed, its obligation to denounce serious criminal conduct, we do accept that
    evidence of anti-Black racism and its impact on the specific offender can be an
    important consideration when determining the appropriate sentence.

[88]

Sentencing judges have always taken into account
    an offenders background and life experiences when gauging the offenders moral
    responsibility for the crime and when choosing from among available sanctions.
    Over 40 years ago, the Appeal Division of the Nova Scotia Supreme Court in
R.
    v. Bartkow
(1978), 24 N.S.R. (2d) 518 (App. Div.), at p. 522, put it this
    way when describing the purposes of a presentence report:

Their function is to supply a picture of the
    accused as a person in society - his background, family, education, employment
    record, his physical and mental health, his associates and social activities,
    and his potentialities and motivations.

[89]

In
Gladue
, at para. 69, and
Ipeelee
,
    at paras. 75-77, the court accepted that background and systemic factors
    should be taken into account when sentencing all offenders. These factors take
    on added significance in respect of Indigenous offenders, given their unique history
    and circumstances: see also
R. v. Anderson
, 2014 SCC 41, [2014] 2
    S.C.R. 167 (
Anderson (SCC)
), at paras. 21, 23-24;
R. v. F.H.L.
,
    2018 ONCA 83, 360 C.C.C. (3d) 189, at paras. 31-32;
R. v. Brown
, 2020
    ONCA 657, 152 O.R. (3d) 650, at paras. 50-51.

[90]

In
Gladue
and
Ipeelee
, the
    systemic and background factors relevant to sentencing included the systemic discrimination,
    both historical and ongoing, suffered by Indigenous persons, especially in the
    criminal justice system. The experience of Black people in Canada is also marked
    by discrimination. Black people share with Indigenous peoples many of the same
    disadvantages flowing from that discrimination. The reports filed on Mr.
    Morriss sentencing speak eloquently to the historical roots of that
    discrimination and its pernicious ongoing effect on many aspects of the
    day-to-day lives of Black people in Canada.

[91]

There can be no doubt that evidence on
    sentencing, describing the existence and effect of anti-Black racism in the
    offenders community and the impact of that racism on the offenders
    circumstances and life choices is part of the offenders background and
    circumstances. The evidence is not only admissible, it is, in many cases,
    essential to the obtaining of an accurate picture of the offender as a person
    and a part of society.

[92]

This court has recognized that systemic and
    background factors, including those attributable to anti-Black racism, may be
    relevant when sentencing Black offenders. In
Borde
, at para. 32,
    Rosenberg J.A. for the court said:

[T]he principles that are generally applicable
    to all offenders, including African Canadians, are sufficiently broad and
    flexible to enable a sentencing court in appropriate cases to consider
both the systemic and background factors that may have played a
    role in the commission of the offence
. [Emphasis added.]

[93]

In
Hamilton
, this court followed
Borde
,
    holding at para. 135:

Reference to factors that may have played a
    role in the commission of the offence encompasses a broad range of potential
    considerations.
Those factors include any explanation for
    the offender's commission of the crime. If racial and gender bias suffered by
    the offender helps explain why the offender committed the crime, then those
    factors can be said to have played a role in the commission of the offence
.
[Emphasis added; quoting
Borde
, at para. 32.]

[94]

Hamilton
goes on
    to explain at para. 141 how disadvantaged circumstances, including those connected
    to racism, can mitigate to some degree the personal responsibility of the
    offender. The court quoted with approval the observation of Durno J. in
R.
    v. G.B.
, [2003] O.J. No. 3218 (S.C.), at para. 45:

The offenders [
sic
] background is
    always a relevant factor on sentencing. A sentence must be appropriate for both
    the offence and the offender. A person with a disadvantaged background, who had
    been subjected to systemic prejudices or racism, or was exposed to physical,
    sexual or emotional abuse, may receive a lower sentence than someone from a
    stable and peaceful background, where the offence is in some way linked to the
    background or systemic factors. The relevant factors in one persons background
    will be case specific. A single factor will rarely be determinative.

[95]

Borde
was
    recently followed by this court in
R. v. Rage
, 2018 ONCA 211, at
    paras. 13-14, and has been applied in other jurisdictions: see e.g.,
R. v.
    Gabriel
, 2017 NSSC 90, 37 C.R. (7th) 206, at para. 50 (citing
R. v.
    X
, 2014 NSPC 95, 353 N.S.R. (2d) 130).

[96]

Some of the interveners submit that
Hamilton
,
at para. 137, wrongly requires a direct
    causal link between the offence and the negative effects of anti-Black racism
    on the offender before anti-Black racism can be seen as mitigating personal
    responsibility. We agree that the concept of causation, as it is used in the
    substantive criminal law, plays no role when considering the impact of an
    offenders background or circumstances on sentencing. As one counsel put it, a
    young offender does not have to show a causal connection between age and the
    offence before age will be treated as a mitigating factor.

[97]

There must, however, be 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. Racism
    may have impacted on the offender in a way that bears on the offenders moral
    culpability for the crime, or it may be relevant in some other way to a determination
    of the appropriate sentence. 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 offenders colour. Everyone agrees there can be
    no such discount: see e.g.,
F.H.L.
, at paras. 45-49;
R. v. Elvira
,
    2018 ONSC 7008, at paras. 21-25;
R. v. Ferguson
, 2018 BCSC 1523, 420
    C.R.R. (2d) 22, at paras. 126-29; and
R. v. Biya
, 2018 ONSC 6887, at
    para. 36, revd on other grounds, 2021 ONCA 171.

[98]

Borde
and
Hamilton
both described the connection between anti-Black racism and factors relevant to
    the determination of a fit sentence in broad terms. Similar language appears in
Gladue
and
Ipeelee
in respect of the relevance of background
    and systemic factors. The evidence may be relevant to sentencing in more than
    one way.

[99]

The social context evidence may offer an
    explanation for the commission of the offence which mitigates the offenders
    personal responsibility and culpability for the offence. Mr. Morriss strong
    and ever-present fear of many people around him in his community, including the
    police, was offered as an explanation for his possession of a loaded gun. The
    information in both reports supported the inference that Mr. Morriss fears
    were real, justified and existed, in part, as a result of systemic racism that
    played a role in shaping his perception of his community, his relationship with
    others in the community, and his relationship with the police.

[100]

It was open to the trial judge to find that the evidence of anti-Black
    racism was connected to, or played a role in, Mr. Morriss strong fear for his
    personal safety in the community. That state of mind offered a mitigating explanation
    for Mr. Morriss possession of the loaded, concealed handgun. Looked at in this
    way, evidence of anti-Black racism, which played a role in generating the fear
    that helps explain why Mr. Morris had a loaded gun, is akin, for the purposes
    of sentencing, to evidence that Mr. Morris had been terrorized by somebody in
    the community and had armed himself because he genuinely feared that person. In
    either scenario, the offender offers an explanation for possessing a loaded gun,
    which, to some extent, ameliorates the offenders moral responsibility for that
    choice: see
R. v. Boussoulas
, 2015 ONSC 1536, at paras. 6-7, 20, affd
    2018 ONCA 222, 407 C.R.R. (2d) 44.

[101]

It must be stressed, however, that Mr. Morriss genuine fear,
    regardless of its cause, is only a limited mitigating factor. He still chose to
    arm himself in public with a concealed, loaded, deadly weapon. As indicated
    above, Mr. Morriss reasons for choosing to arm himself do not detract from the
    seriousness of the crime he committed. Even if his conduct is made somewhat
    less blameworthy by the explanation offered for possessing the loaded handgun,
    Mr. Morriss conduct still put members of the community, and police officers
    engaged in the lawful execution of their duties, at real risk.

(c)

Proportionality: Blending the Objectives of
    Sentencing

[102]

Social context evidence can also be relevant on sentencing even if it
    does not tend to mitigate the offenders moral culpability. As indicated
    earlier, social context evidence can provide valuable insight, both with
    respect to the need to deter the offender from future conduct, and the
    rehabilitative prospects of the offender. Evidence about an offenders
    background and circumstances allows the sentencing judge to more accurately
    assess how sometimes competing objectives of sentencing, such as rehabilitation
    and denunciation, can best be blended to produce a sentence that accords with
    the proportionality principle and serves the fundamental purpose of sentencing
    articulated in s. 718.

[103]

For example, evidence that an offender has had frequent and
    confrontational contact with the police may mean one thing in one community,
    but quite another in a community in which the influences of anti-Black racism
    have shaped a confrontational and adversarial relationship between the police and
    members of the community, especially young Black men. By understanding the
    social milieu in which the offender interacted with the police, the sentencing judge
    is better able to fashion a sentence that, to the extent possible, realistically
    addresses the needs and potential of the offender, as well as the seriousness
    of the offence.

[104]

Mr. Morriss educational and employment history provides a further example
    of how social context evidence can assist in fashioning a fit sentence.
    Considered without the social context evidence, Mr. Morriss educational and
    employment achievements are meagre and his future prospects seem bleak. Without
    any context, a sentencing judge could well conclude Mr. Morris had little
    interest in either education or employment, and consequently his rehabilitative
    prospects were dim. However, when Mr. Morriss educational and employment
    background is considered in the context of the information provided by the
    Sibblis Report, a sentencing judge could determine that Mr. Morriss
    trajectory, as it relates to education and employment, is more reflective of the
    institutional biases and systemic inadequacies faced by Mr. Morris than any
    lack of potential or interest on Mr. Morriss part. By placing Mr. Morriss
    educational and employment history in the proper social context, a sentencing
    judge is better able to decide how those parts of Mr. Morriss background might
    be addressed in a positive way that benefits Mr. Morris and ultimately the
    community.

[105]

A proper understanding of how anti-Black racism has impacted on
    various aspects of an offenders life will assist the sentencing judge in
    fashioning a sentence which includes terms that enhance the offenders
    rehabilitation by addressing, in a direct and positive way, the negative impact
    of systemic racism. The counselling term in the probation order made by the
    trial judge in this case had that potential. The detailed terms of the
    conditional sentence imposed in
Anderson (NSCA)
, at paras. 72-73, also
    serve that purpose.

[106]

I
n summary, social context evidence, which
    helps explain how the offender came to commit the offence, or which allows for
    a more informed and accurate assessment of the offenders background, character
    and potential when choosing from among available sanctions, is relevant and
    admissible on sentencing.
Acknowledging
    the reality of anti-Black racism and its impact on offenders like Mr. Morris
    during the sentencing process enhances the legitimacy of the criminal justice
    system in the eyes of the community and, in particular, those in the community
    who have good reason to see the criminal justice system as racist and unjust. A
    sentencing process which frankly acknowledges and addresses the realities of
    the offenders life takes one important step toward the goal of equal justice
    for all.

[107]

We see nothing new in the approach to sentencing described above. It
    reflects the individualized offence and offender-specific approach to
    sentencing that has always held sway in Canadian courts. The sentencing
    process, as it exists, can properly and fairly take into account anti-Black
    racism and its impact on the offenders responsibility, and the selection of an
    appropriate sanction in all the circumstances. What is new is the kind of
    information provided in reports like the two filed in this case and a judicial
    willingness to receive, understand, and act on that evidence.

(iii)

The Parity Principle

[108]

The parity principle in s. 718.2(b) requires that to the extent
    offenders and their offences are similar, their sentences should be similar.
    Parity aims at substantive equality. If there are material differences between
    the circumstances of the offence or the offender, those differences must be
    reflected in the sentences imposed. A sentence which takes those differences
    into account does not offend the parity principle, but instead properly
    recognizes the relationship between that principle and the fundamental
    principle of proportionality:
Friesen
, at paras. 32-33;
Ipeelee
,
    at para. 79.

[109]

The trial judge ultimately determined, based on the social context
    evidence and his findings with respect to the impact of anti-Black racism on Mr.
    Morriss circumstances and his moral culpability, that a sentence well below
    the range established for the offences, even when committed by a young first
    offender, was appropriate. Sentences below the established range are not
    necessarily unfit: see
Friesen
, at para. 38;
R. v. Suter
, 2018
    SCC 34, [2018] 2 S.C.R. 496, at para. 4.

[110]

The fitness of Mr. Morriss sentence does not ultimately depend on a
    comparison of that sentence with those imposed in other gun crime cases. The
    fitness of the sentence turns on whether the trial judge erred in holding that the
    social context evidence both diminished the seriousness of the offences, and mitigated
    Mr. Morriss personal responsibility to the degree that a sentence well below
    the sentences normally imposed for the offences was justified in the
    circumstances.

(iv)

The Restraint Principle

[111]

Under the statutory regime created by Part XXIII, imprisonment is a
    sanction of last resort. This principle finds expression in ss. 718.2(d) and
    (e):

(d) an offender should not be
    deprived of liberty, if less restrictive sanctions may be appropriate in the
    circumstances; and

(e) all available sanctions, other
    than imprisonment, that are reasonable in the circumstances and consistent with
    the harm done to victims or to the community should be considered for all
    offenders, with particular attention to the circumstances of Aboriginal
    offenders.

[112]

Both provisions are remedial in nature and apply to all offenders:
Gladue
,
    at paras. 36, 45-48. They are intended to remedy the acknowledged overuse of incarceration
    as a criminal sanction in Canada:
Gladue
, at para. 57. The restraint principle
    operates both when deciding whether incarceration is an appropriate disposition
    and, if it is, when fixing the length of that incarceration:
Gladue
,
    at paras. 79, 93. The restraint principle, however, operates within the
    boundaries set by the fundamental principle of proportionality. As stated by
    Moldaver J. in
Suter
, at para. 56, the fundamental principle of
    proportionality must prevail in every case.

[113]

Although the restraint principle applies when sentencing all
    offenders, s. 718.2(e) applies with particular attention to the circumstances
    of Aboriginal offenders. Not surprisingly, given this language, the courts
    have interpreted s. 718.2(e) as signalling Parliaments direction that a different
    approach should be taken when applying the restraint principle to the
    sentencing of Indigenous offenders. That approach was first laid down in
Gladue
and further developed in
Ipeelee
. None of the parties take exception
    to the methodology developed in those cases, as applied to Indigenous offenders.
    Some of the interveners, however, submit this court should extend that approach
    to the sentencing of Black offenders.

[114]

Indigenous offenders were singled out in s. 718.2(e) for two reasons.
    First, the problems associated with over-incarceration exist with devasting
    force in Indigenous communities:
Gladue
, at paras. 58-65;
Ipeelee
,
    at paras. 56-58. Second, for many Indigenous offenders and their communities, some
    of the principles and objectives underlying sentencing in Part XXIII do not
    represent Indigenous values or reflect the unique experiences and perspectives
    held by many Indigenous communities. In short, what amounts to a just
    sentence from a non-Aboriginal vantage point will not necessarily be seen as a just
    sentence from the very different historical and cultural vantage point of the Indigenous
    offender and community:
Gladue
, at paras. 70-74, 77.

[115]

The unique circumstances of Indigenous offenders, which require
    special consideration when addressing the restraint principle, include both the
    systemic and background factors which played a role in bringing the offender
    before the court, and the unique Indigenous perspective as to how best to
    achieve a just sentence which protects the community:
Gladue
, at
    paras. 66, 93.

[116]

In
Ipeelee
, at para. 73, the court acknowledged that
    systemic and background factors, including institutional biases and
    discrimination, could play a role in determining the Indigenous offenders
    degree of moral responsibility for the crime. In addition, the unique cultural
    and historical factors, which shaped Indigenous attitudes toward crime and
    punishment, could have an effect on the selection of the sanction which best achieves
    the purpose of sentencing as laid down in s. 718. Addressing the significance
    of cultural and historical differences, LeBel J. observed, at para. 74:

The second set of circumstances

the types of sanctions which may be appropriate

bears not on the degree of culpability of the
    offender, but on the effectiveness of the sentence itself. As Cory and
    Iacobucci JJ. point out, at para. 73 of
Gladue
:
What is important to recognize is that,
    for many if not most aboriginal offenders, the current concepts of sentencing
    are inappropriate because they have frequently not responded to the needs,
    experiences, and perspectives of aboriginal people or aboriginal communities. As
    the [Royal Commission on Aboriginal Peoples] indicates, at p. 309 [of its
    report,
Bridging the Cultural Divide: A Report on Aboriginal People and
    Criminal Justice in Canada
(Ottawa, 1996)], the crushing failure of the
    Canadian criminal justice system
vis-à-vis
Aboriginal peoples is due
    to the fundamentally different world views of Aboriginal and non-Aboriginal
    people with respect to such elemental issues as the substantive content of
    justice and the process of achieving justice. The
Gladue
principles
    direct sentencing judges to abandon the presumption that all offenders and all
    communities share the same values when it comes to sentencing and to recognize
    that, given these fundamentally different world views, different or alternative
    sanctions may more effectively achieve the objectives of sentencing in a
    particular community.

[117]

Counsel for some of the interveners argue that the circumstances of Indigenous
    offenders, which justify a different approach to sentencing, apply with equal
    force to Black offenders. They point out that over-incarceration of Black
    offenders is a well-documented phenomenon in the Canadian justice system. Counsel
    submit that the negative impact of long-term and widespread discrimination
    against Indigenous people is not unlike the impact of anti-Black racism on the Black
    community. Both communities share educational, economic, and social disadvantages.
    Perhaps most significantly, they share a very negative experience with and a
    profound distrust of the criminal justice system.

[118]

We do not agree that this court should equate Indigenous offenders
    and Black offenders for the purposes of s. 718.2(e). We come to that conclusion
    for two reasons.

[119]

Sentencing policy falls to be set, first and foremost, by
    Parliament. Parliament chose to specifically single out one group  Aboriginal
    offenders  in the context of the operation of the restraint principle in
    sentencing, especially as applied to imprisonment. As said in
Gladue
,
    at para. 37:

Rather, the logical meaning to be derived from
    the special reference to the circumstances of aboriginal offenders, juxtaposed
    as it is against a general direction to consider the circumstances for all
    offenders, is that sentencing judges should pay particular attention to the
    circumstances of aboriginal offenders because those circumstances are unique,
    and different from those of non-aboriginal offenders. The fact that the
    reference to aboriginal offenders is contained in s. 718.2(e), in particular,
    dealing with restraint in the use of imprisonment, suggests that there is
    something different about aboriginal offenders which may specifically make
    imprisonment a less appropriate or less useful sanction. [Emphasis omitted.]

[120]

Similarly, in
Ipeelee
, the court, at para. 59, read the
    reference to Aboriginal offenders in s. 718.2(e) as indicating their
    circumstances were unique and materially different from those of non-Aboriginal
    offenders.

[121]

The language of s. 718.2(e) could not be clearer. Aboriginal
    offenders have been singled out for the purposes of the application of the
    restraint principle described in s. 718.2(e). It does not fall to the court to effectively
    amend that language to include other identifiable groups.

[122]

In any event, the rationale offered in
Gladue
and
Ipeelee
for applying the restraint principle differently in respect of Indigenous
    offenders does not apply to Black offenders. Although there can be no doubt
    that the impact of anti-Black racism on a specific offender may mitigate that
    offenders responsibility for the crime, just as with Indigenous offenders,
    there is no basis to conclude that Black offenders, or Black communities, share
    a fundamentally different view of justice, or what constitutes a just
    sentence in any given situation. The Indigenous offenders culture and
    historical relationship with non-Indigenous Canada is truly unique. That
    uniqueness explains the very specific and exclusive reference to Aboriginal
    offenders in s. 718.2(e).

[123]

Although we would not equate Black offenders with Indigenous
    offenders, for the purposes of s. 718.2(e), the
Gladue
/
Ipeelee
jurisprudence can inform the sentencing of Black offenders in several respects:
    see
Borde
, at para. 30. Just as with the discrimination suffered by Indigenous
    offenders, courts should take judicial notice of the existence of anti-Black
    racism in Canada and its potential impact on individual offenders. Courts
    should admit evidence on sentencing directed at the existence of anti-Black
    racism in the offenders community, and the impact of that racism on the offenders
    background and circumstances. Similarly, in considering the restraint
    principle, courts should bear in mind well-established over-incarceration of
    Black offenders, particularly young male offenders. Finally, as with Indigenous
    offenders, the discrimination suffered by Black offenders and its effect on
    their background, character, and circumstances may, in a given case, play a
    role in fixing the offenders moral responsibility for the crime, and/or blending
    the various objectives of sentencing to arrive at an appropriate sanction in
    the circumstances.

[124]

The restraint principle plays a specific and important role in
    sentencing for serious crimes like crimes involving the unlawful possession of
    loaded handguns. Because of the seriousness of crimes involving the possession
    of loaded handguns, some term of imprisonment will usually be required to
    reflect the seriousness of the crime.

[125]

The requirement of a sentence of imprisonment does not, however, end
    the operation of the restraint principle. That principle requires the court, if
    it determines that a sentence of less than two years imprisonment would be
    appropriate, to consider whether the term of imprisonment could be served in
    the community under a conditional sentence:
Criminal Code
, s. 742.1.
    The restraint principle favours conditional sentences over-incarceration if a
    conditional sentence is consistent with the proportionality principle: see
R.
    v. R.N.S.
, 2000 SCC 7, [2000] 1 S.C.R. 149, at para. 21.

[126]

After
Nur
struck down the mandatory minimum, a conditional sentence
    is statutorily available for offences under s. 95. As persuasively laid out in
Anderson
    (NSCA)
, a carefully fashioned conditional sentence that is responsive,
    both to the needs of denunciation and deterrence and the rehabilitative
    potential of the offender, can, in some situations, be a fit sentence for a s.
    95 offence: see also
R. v. Shunmuganathan
, 2016 ONCJ 519;
R. v.
    Dalton
,
2018 ONSC 544
.

[127]

A conditional sentence, like that described in
Anderson (NSCA)
,
    at paras. 126-41, can only be available if counsel provides the court with the
    information needed to warrant the imposition of a conditional sentence. Not
    only must the information speak to the offenders circumstances, it must include
    proposed terms which will meaningfully address the need for deterrence,
    denunciation, and ongoing supervision of the offender. The information provided
    by counsel on sentence must give the sentencing judge reason to believe the
    offender is committed to the terms of the proposed conditional sentence.

[128]

Counsels efforts alone will of course not be enough. The resources
    needed by counsel to properly put forward this kind of information must be available,
    as must the resources needed to effectively implement a conditional sentence
    tailored to the needs of the offender like the sentence in
Anderson (NSCA)
.
    The proposed federal legislation, combined with commitments made in the governments
    2020 economic statement, suggest the previous government intended to make the
    necessary resources available. Hopefully, that commitment will be renewed and
    acted upon in the immediate future: see Bill C-22,
An Act to amend the
    Criminal Code and the Controlled Drugs and Substances Act
, 2nd Sess., 43rd
    Parl., 2021; see also Canada,
Supporting Canadians and Fighting COVID-19:
    Fall Economic Statement 2020
(Ottawa: Department of Finance, 2020), at p.
    85.
3F
[4]

[129]

The use of conditional sentences when sentencing young Black
    offenders, in appropriate cases, also carries the added advantage of
    addressing, at least as it relates to the offender before the court, the ongoing
    systemic problem of the over-incarceration of young Black offenders.

[130]

Restraint also operates in another way. Even if the sentencing judge
    decides incarceration is necessary, there is still a question of how long the
    sentence should be. A sentence of more than two years excludes the possibility
    of probation:
Criminal Code
, s. 731. If the sentencing judge determines
    that the range of sentence for the particular offence and offender includes a
    two-year sentence and that probation would assist the offenders
    rehabilitation, the restraint principle favours imposing a sentence of no more
    than two years, even if a somewhat longer period of incarceration would also fall
    within the appropriate range.

[131]

As indicated in
R. v.

Smickle
, 2013 ONCA 678, 304
    C.C.C. (3d) 371, at para. 30, additional reasons, 2014 ONCA 49, 306 C.C.C. (3d)
    351, sentences at or just below the two-year mark may be appropriate for some
    s. 95 offences. When the sentencing judge determines that an appropriate
    sentence is in that range, counsel and the sentencing judge must fully explore
    various options which could eliminate or reduce the offenders period of actual
    incarceration while still giving effect to the proportionality principle.

B.

The Admissibility of the Report and Evidence of Ms. Sibblis

[132]

We have already summarized the substance of Ms. Sibbliss report and
    her testimony (see paras. 44-52). The Crowns complaint with respect to the
    admissibility of Ms. Sibbliss report and testimony is a relatively narrow one.
    Counsel submits that, although Ms. Sibblis was tendered as an expert witness,
    she was not properly qualified at the sentencing proceeding. Neither her areas
    of expertise, nor the specific subject matters on which she was qualified to
    give opinion evidence were identified. Consequently, argues the Crown, her report
    and testimony roam over a wide variety of subjects, some of which required that
    she be properly qualified as an expert. For example, the Crown argues that Ms.
    Sibblis was not properly qualified to give opinion evidence, either about Mr.
    Morriss state of mind, or any mental disorder he may have suffered from at the
    relevant time.

[133]

The Crowns argument should be considered in the context of the
    applicable evidentiary provisions in Part XXIII of the
Criminal Code
. Those provisions swing the evidentiary door
open
    on sentencing. The rules of evidence are relaxed to facilitate the production
    of any information that could help the sentencing judge arrive at a fit
    sentence. Given the highly individualized nature of the sentencing inquiry, the
    concept of relevance captures a broad band of information: see
Criminal
    Code
, ss. 723, 726.1.

[134]

Information that sheds light on the offenders background,
    character, and circumstances, or helps explain why the offender committed the
    offence, is relevant on sentencing and potentially admissible. Much of the
    information provided by Ms. Sibblis goes to the appellants background,
    character, and circumstances. She tells Mr. Morriss life story as a young Black
    man growing up and living in Toronto.

[135]

The biographical information tracing Mr. Morriss life experiences
    laid out in the Sibblis Report was clearly admissible on sentencing. That
    information included primary source documents and statements from Mr. Morris
    and others close to him, including his mother. Although much of the information
    was hearsay, the trial judge could rely on that information if he concluded it
    was credible and trustworthy:
R. v. Gardiner
, [1982] 2 S.C.R. 368, at p.
    414. No particular expertise was required for Ms. Sibblis to chronicle Mr.
    Morriss background history and circumstances. To the extent that the Sibblis
    Report chronicles Mr. Morriss life, it is not unlike a presentence report,
    although it is much more thorough and detailed than most presentence reports.

[136]

The Sibblis Report does go on to connect Mr. Morriss disadvantaged
    upbringing and circumstances to overt and systemic anti-Black racism. Ms.
    Sibblis offers her assessment of the impact of that connection on the choices
    Mr. Morris has made throughout his life, and on his outlook for the future. The
    disadvantages suffered by Mr. Morris are part of his background and character
    and are relevant to determining the appropriate sentence. Ms. Sibbliss opinion
    that anti-Black racism plays a role in the existence and impact of those
    disadvantages is also relevant to determining the fit sentence. An explanation
    for a disadvantage or circumstance which played a role in the offenders
    commission of the offence can shed light on how that disadvantage should be
    taken into account on sentencing.

[137]

The parts of the Sibblis Report that draw a connection between
    systemic factors and Mr. Morriss commission of the offences have much in
    common with
Gladue
reports. The Sibblis Report is helpful for some of
    the same reasons that
Gladue
reports have proven to be helpful when
    sentencing Indigenous offenders. As with
Gladue
reports, the Sibblis
    Report places Mr. Morriss history and circumstances in a social context which
    enhances the sentencing judges understanding of Mr. Morris. A better
    understanding of the offender is always a good thing on sentence.

[138]

A report very similar to the Sibblis Report was admitted without
    objection in
Jackson
. Similar reports (IRCAs) are regularly admitted
    in Nova Scotia criminal courts. In
Anderson (NSCA)
, the Nova Scotia
    Court of Appeal strongly endorses the use of IRCAs in sentencing, especially for
    young Black offenders. As the court in
Anderson (NSCA)
notes, at para. 83, the federal government has
    recently endorsed the use of IRCAs and proposes to provide funding for them.

[139]

We accept that, in some respects, offering an opinion that draws the
    connection between an offenders lived experiences and the impact of anti-Black
    racism will require expertise. Ms. Sibbliss academic and clinical experiences provided
    that expertise. She was competent to offer an opinion as to the connection
    between anti-Black racism and Mr. Morriss involvement in the criminal justice
    system.

[140]

Parts of the Sibblis Report and her evidence arguably offered
    opinions with respect to matters that went beyond Ms. Sibbliss apparent expertise.
    Some of her comments about the extent and effect of Mr. Morriss physical
    injuries suffered in 2013, as well as her opinions about Mr. Morriss mental state
    and his specific state of mind, arguably required expertise beyond that which
    is self-evident from a review of Ms. Sibbliss credentials.

[141]

Even if Ms. Sibblis was not qualified to offer certain opinions
    about Mr. Morriss mental state, or the extent of his physical injuries, the
    Crown was not prejudiced by the opinions she gave. The trial judge had ample
    evidence, apart from Ms. Sibbliss opinion, to support the conclusion that Mr.
    Morris had significant emotional difficulties. The trial judge was entitled to
    accept the psychiatric report prepared 11 months before the offences. That
    report suggested a diagnosis of post-traumatic stress disorder (PTSD). The
    Sibblis Report provided information from Mr. Morris about his mental state in
    the ensuing period. According to him, he continued to experience the same intense
    and ongoing fears, and sense of hopelessness he had related to the psychiatrist.
    The trial judge could accept Mr. Morriss statements, as reported by Ms. Sibblis.
    Those statements supported the continuing applicability of the psychiatric
    diagnosis.

[142]

Similarly, apart from Ms. Sibbliss opinions about Mr. Morriss
    physical injuries and their ongoing effect, the documentation established the
    seriousness of those injuries. It was open to the trial judge to conclude those
    injuries continued to present serious problems for Mr. Morris.

[143]

It would have been better had counsel specifically identified for
    the trial judge the areas of Ms. Sibbliss report with respect to which the
    Crown maintained there were legitimate doubts as to her qualifications to offer
    the opinions contained in the report. After hearing argument on the contested
    areas of the report, the trial judge could have determined the areas in which Ms.
    Sibblis was entitled to give expert opinion evidence. In doing so, the trial
    judge would have set the parameters of her testimony and identified the parts
    of her report, if any, that went beyond her expertise and would not be
    considered by the trial judge.

This approach would have served the same purpose
    as a formal
voir dire
, but in a more expeditious manner, well-suited
    to the introduction of evidence on sentencing.

[144]

We would add one further observation with respect to reports like
    the Sibblis Report. Persons authoring presentence reports and
Gladue
reports are required to present an objective and balanced picture of the
    offender for the court:
R. v. Lawson
, 2012 BCCA 508, 294 C.C.C. (3d)
    369, at para. 28. Persons preparing social context reports are under the same
    obligation. Ms. Sibblis acknowledged this obligation.

[145]

To maintain that objectivity, the report cannot purport to speak for
    the offender or advocate on the offenders behalf. A social context report must
    also distinguish between facts and an offenders perceptions and beliefs as
    stated to the author. Both perceptions and facts are important, but they are
    not the same thing. For example, an offenders assertion he was mistreated by
    the police and correctional authorities and subject to unreasonable bail terms
    cannot be presented as facts in the report. This caution is especially
    important when the offender, like Mr. Morris, has been found by the judge and
    the jury to have made serious false allegations of police misconduct while
    under oath.

[146]

A properly prepared social context report must also carefully
    consider the information available in the primary source documents collected.
    Any claim that a particular event or incident is explained by institutional
    bias can only be objectively assessed by reference to the actual events as
    revealed in reliable primary source documents such as medical records. For
    example, the Sibblis Report suggests that the failure to follow-up on Mr.
    Morriss diagnosed psychiatric issues may have been a reflection of systemic
    racism. The medical records, however, indicate that the psychiatrist did
    prescribe medication and follow-up psychotherapy. Mr. Morris chose not to take
    the medication or go back to the psychiatrist for the psychotherapy.

[147]

Reports like the Sibblis Report are not commonly used in Ontario. We
    agree with the Nova Scotia Court of Appeal in
Anderson (NSCA)
that the
    reports can be of great assistance to a sentencing judge. Hopefully, their
    preparation can be adequately funded and they will become a common feature of
    sentencing in Ontario in appropriate cases. We are confident that with more
    experience in preparing these reports, and added guidance from the courts,
    authors of these reports will appreciate the need to present an objective
    assessment, while avoiding appearing to take on the role of advocate for the
    offender.

C.

The Alleged Errors in the Trial Judges Reasons

[148]

The Crown submits that the 12-month sentence imposed by the trial
    judge is demonstrably unfit and that the trial judge made errors in principle
    that had a material impact on the sentence. The Crown contends that either
    error justifies appellate intervention:
Friesen
, at paras. 25-26. As we
    are satisfied there were errors in principle, we will address the fitness of
    sentence from that perspective.

(i)

The Trial Judges Treatment of the Seriousness
    of the Offences

[149]

As indicated earlier (paras. 75-78), the trial judge erred in
    holding that systemic racism and its impact on Mr. Morris could mitigate the
    seriousness of the offences committed by Mr. Morris and, in doing so, reduce
    the significance of the objectives of denunciation and general deterrence in the
    fixing of an appropriate sentence. The seriousness of Mr. Morriss crimes is not
    diminished by evidence which speaks to his reason for committing the crimes. Specifically,
    the explanation offered by counsel and accepted by the trial judge for Mr.
    Morriss possession of the gun, his flight from the police, and his disposal of
    the gun, while possibly relevant to his degree of personal responsibility, in
    no way reduced the seriousness of the offences, or the need to denounce in no
    uncertain terms Mr. Morriss criminal conduct.

[150]

Although
    Mr. Morris was convicted of four gun-related charges, when considering the
    seriousness of his conduct, it is appropriate to focus on the s. 95 charge, the
    most serious of the four charges. That section prohibits the possession of a
    loaded restricted/prohibited firearm.

[151]

Section 95 criminalizes a broad range of conduct. Mr. Morriss actions
    fall at the true crime end of the spectrum of the conduct prohibited by s.
    95. As this court and, more importantly, the Supreme Court of Canada have
    indicated, crimes like those committed by Mr. Morris call for denunciatory
    sentences. In most cases, penitentiary terms will be required. In some situations,
    where there are strong mitigating factors, sentences at or near the maximum
    reformatory sentence (two years, less a day), may be imposed: see
Smickle
,
    at para. 30;
Nur (ONCA)
, at paras. 6, 17-23 and 206; and
Nur (SCC)
,
    at para. 82.

[152]

The trial judge imposed a sentence that was far below the range described
    in cases like
Nur
and
Smickle
. In doing so, he erred in
    principle by deprecating the seriousness of the offences committed by Mr.
    Morris and the need to unequivocally denounce the criminal conduct engaged in
    by Mr. Morris through the sentence imposed on him.

[153]

At the same time, the trial judges reasons overstate the impact of
    Mr. Morriss circumstances on
his ability to choose
whether or not to arm
    himself with a loaded, concealed handgun. There is no evidence from Mr. Morris about
    how he came to carry around a loaded, concealed handgun. In fact, Mr. Morris
    insisted under oath he did no such thing. Absent any evidence from Mr. Morris as
    to why he came to arm himself, it simply cannot be assumed that he was armed
    because

he thought he had little choice in the matter.

[154]

The evidence does, however, offer an explanation, rooted in the
    social context evidence, that explains why Mr. Morris made such a bad and
    dangerous choice. That explanation points to circumstances, many of which were
    not only beyond Mr. Morriss control, but were in fact imposed on him as a
    consequence of systemic and overt anti-Black racism in various social
    institutions.

(ii)

Other Alleged Errors

[155]

The errors described above (paras. 149-54) had a material impact on
    the sentence imposed and are sufficient to warrant appellate intervention. We will,
    however, address some of the other aspects of the trial judges reasons.

(a)

The Finding of Remorse

[156]

The trial judge accepted that Mr. Morris was remorseful. There was
    evidence that Mr. Morris was sorry for the pain he had caused his mother,
    regretted the mess he had made of his life, and wanted to change.

[157]

Remorse can offer meaningful mitigation when accompanied by an
    acceptance of responsibility for ones crimes. A combination of remorse and an
    acceptance of responsibility offers good reason to hope the offender will not
    reoffend. The trial judge appears to have appreciated that remorse offers
    meaningful mitigation only when accompanied by an acceptance of responsibility.

[158]

Nothing in this record is capable of supporting a finding that Mr.
    Morris took any responsibility for his crimes at any time in these proceedings.
4F
[5]
Mr. Morris denied committing the offences at trial. He falsely
    accused the police of planting the firearm and other serious misconduct, both
    in his evidence on the stay motion and in his evidence before the jury. He said
    nothing on sentencing to resile from the false evidence he gave at trial.

[159]

Mr. Morris, of course, cannot be punished on sentencing for denying
    the allegations or falsely accusing the police of serious misconduct. However,
    both are relevant when considering whether Mr. Morris took any responsibility
    for his actions. Nothing in the Sibblis Report, or in Mr. Morriss statement at
    sentencing, suggests he was prepared to take responsibility for anything. A
    refusal to acknowledge, much less take responsibility for, criminal conduct, did
    not augur well for Mr. Morriss rehabilitative potential and raises real
    concerns about the risk that he will reoffend.

[160]

The trial judge appreciated that the sentence he imposed was a
    lenient one. He did not consider whether Mr. Morriss failure to take any responsibility
    for his criminal conduct rendered a lenient sentence inappropriate in the
    circumstances.

(b)

The Trial Judges Treatment of Mr. Morriss
    Reasons for Possession of the Handgun

[161]

The trial judge was satisfied that Mr. Morris had the loaded
    handgun, at least in part, because of his precarious mental state. On the trial
    judges findings, Mr. Morris constantly feared for his life in his community.
    He felt helpless and saw nothing positive in his future.

[162]

The trial judge also accepted there was no evidence Mr. Morris had
    the loaded gun for any specific criminal purpose. We take this to mean there
    was no evidence Mr. Morris was involved in criminal activity and used the gun
    as a tool of that trade.

[163]

Both findings were open to the trial judge. With respect to Mr.
    Morriss mental state, the trial judge had Mr. Morriss description of his
    state of mind, as provided to Ms. Sibblis, the psychiatric report from January
    2014, and undisputed evidence concerning specific traumatic events, including
    two prior stabbings. With respect to the conclusion there was no basis to find
    he had the gun for an ulterior criminal purpose, the trial judge relied on the
    character evidence offered on behalf of Mr. Morris at sentencing. Mr. Morris also
    had no criminal record.

[164]

Both factors identified by the trial judge offered some mitigation
    of Mr. Morriss personal culpability and blameworthiness. The trial judge
    recognized this mitigation, but also concluded that Mr. Morriss reasons for
    possessing a loaded, concealed handgun lessened the need to denounce Mr.
    Morriss conduct.

[165]

The trial judge erred in holding that Mr. Morriss explanation for
    possessing the loaded, concealed handgun rendered denunciation less important. Mr.
    Morriss explanation in no way diminished the dangerousness of his conduct, or
    the harm it caused to the community.

[166]

The explanation accepted by the trial judge for Mr. Morriss
    possession of the loaded handgun had to be taken into account, along with other
    mitigating factors, when assessing the personal culpability component of the
    proportionality inquiry. The social context evidence accepted by the trial
    judge put Mr. Morriss choice to carry a loaded, concealed handgun in a light
    that reduced his personal culpability. That same evidence offered valuable
    insights into Mr. Morriss background and character and, in particular, his
    potential for rehabilitation that had to be taken into account when blending
    the various objectives of sentencing.

(c)

The Flight from the Police and the Disposal of
    the Gun

[167]

In his reasons on the motion to stay the proceedings (summarized
    above, at paras. 26-32), the trial judge found that he was not satisfied Mr.
    Morris knew the plainclothes officers, who initially attempted to stop him,
    were police officers. The trial judge was, however, satisfied that Mr. Morris
    knew the uniformed officer chasing him across the No Frills parking lot was a
    police officer. Mr. Morris did not stop, but on the trial judges findings
    continued to run until he was caught and tackled by the police officer. The
    trial judge further held that Mr. Morris disposed of the loaded handgun in the
    stairwell of the parking lot while running from the uniformed police officer.

[168]

The trial judge declined to treat Mr. Morriss flight from the
    police or the disposal of the loaded handgun in a public area as aggravating
    factors on sentence. He described both as reflexive and impulsive reactions
    to the confrontation with the police. On the trial judges reasoning, that reaction
    was explained in part by Mr. Morriss fears and distrust of the police. His
    fear and mistrust were in turn the product of the systemic anti-Black racism
    engrained in the policing of communities like the one Mr. Morris had grown up in.

[169]

The trial judge made his findings as to why Mr. Morris ran in the
    absence of any such evidence from Mr. Morris. Mr. Morris had falsely denied
    running from the uniformed officer, claiming he had stopped as soon as he saw
    that it was a police officer.

[170]

On the trial judges findings, Mr. Morriss flight from the
    plainclothes officers cannot be treated as an aggravating factor. However, his
    decision to continue to run once he knew he was being chased by a police
    officer does increase the seriousness of the offence. This is so for two
    reasons. First, fleeing from the police while in possession of a loaded handgun
    increases the risk of a confrontation, during which the weapon may be discharged
    deliberately, or even accidentally. Either substantially increases the risk to
    the public. Second, Mr. Morriss decision to run while armed with a loaded
    handgun endangered the safety of the police officers who were engaged in the
    lawful execution of their duty. Doing so aggravates the seriousness of the offence.

[171]

We would also hold that the trial judge made an unreasonable finding
    of fact when he concluded Mr. Morriss flight and disposal of the gun was an impulsive
    reaction caused by his fear of the police and a concern he would not be treated
    fairly. The trial judges analysis ignores that Mr. Morris was in the act of
    committing a serious crime when confronted by the police. He had to know that
    if caught with a loaded gun, he would be arrested and incarcerated. Mr. Morris chose
    to run and attempted to dispose of the weapon out of the sight of the police
    before he was apprehended. The only reasonable inference is that Mr. Morris ran
    and disposed of the gun in an effort to avoid being caught and charged with a
    serious crime.

[172]

The trial judge also made an error in concluding the disposal of the
    handgun in a public place was not a weighty aggravating factor in this case.
    The trial judge discounted the significance of that factor because the place
    where the gun was thrown was not easily accessible to a passerby or innocents.
    On the evidence, Mr. Morris threw the gun away in a public stairwell located in
    a parking lot of a grocery store. The stairwell was readily accessible by the
    public, even if it was not used a great deal. In any event, leaving a loaded
    firearm anywhere in a public space is clearly a significant aggravating factor.

(d)

The Mitigation for the Breach of Mr. Morriss
Charter
Rights

[173]

The trial judge reduced the sentence by three months on account of
    the breach of Mr. Morriss rights under ss. 7 and 10(b) of the
Charter
.
    Those breaches are described above (see paras. 28-32). The trial judge was
    particularly concerned with the breach of s. 7, which involved one of the plainclothes
    officers driving over Mr. Morriss foot in his attempt to detain Mr. Morris. The
    trial judge did not invoke s. 24(1) of the
Charter
, but relied on the
    principle that state misconduct can mitigate sentence.

[174]

All parties agree that a trial judge can reduce a sentence to take
    into account state misconduct relating to the circumstances of the offence or
    the offender:
Nasogaluak
, at paras. 3, 47. Excessive use of force in
    the course of detaining or arresting an individual, even if the arrest or
    detention is for a different offence than the offence ultimately prosecuted, can
    constitute state misconduct relating to the circumstances of the offence or
    offender.

[175]

The trial judge was satisfied the officers excessive use of force
    was sufficiently serious to warrant a reduction in the sentence. In addressing
    the seriousness of the misconduct, the trial judge relied, not only on the
    physical consequences suffered by Mr. Morris, but on the negative impact the aggressive
    police conduct had on the perception of the police within the community. The
    trial judge concluded that some mitigation of the sentence would recognize the
    reality of that perception.

[176]

The trial judge properly identified the
    principle laid down in
Nasogaluak
.
    On the findings he made, it was open to him to invoke the principle from
Nasogaluak
in crafting a fit sentence. This court
    must defer to those findings.

D.

The Appropriate Sentence

[177]

As the trial judge acknowledged, the seriousness of Mr. Morriss
    crimes required a significant term of imprisonment. The possession of a loaded,
    concealed handgun in a public place, the flight from the police, and the
    disposal of the loaded weapon in a public place were all aggravating factors. As
    indicated earlier, we see no reason to depart from the range fixed in cases
    like
Nur
and
Smickle
. In most cases, at the true crime end
    of the spectrum, a penitentiary sentence will be necessary for a s. 95 offence.
    In some cases, sentences at or near a maximum reformatory sentence will be
    appropriate.

[178]

There are mitigating factors in this case favouring a sentence at
    the low end of the range. More importantly, Mr. Morris was a young first
    offender at the time of sentencing. He has strong emotional support from his
    mother and others who are close to him. As revealed in the Sibblis Report, Mr.
    Morris has many positive features, and rehabilitative potential.

[179]

The moral blameworthiness of Mr. Morriss
    conduct is mitigated by his mental and physical health issues, as well as his
    educational and economic disadvantages. All of those factors are influenced by
    the systemic anti-Black racism Mr. Morris has experienced. The factors can only
    properly be understood, for the purposes of determining the appropriate
    sentence, by having regard to that context.
The three-month deduction in the sentence to take account of state
    misconduct during the attempt to detain and arrest Mr. Morris can also be viewed
    as a mitigating factor for the purposes of fixing an appropriate range of
    sentence.

[180]

Taking into account the mitigating and aggravating factors, we think
    the trial judge could have imposed a sentence ranging from a sentence at or
    near the maximum reformatory term, to a penitentiary sentence of three years.
    When the appropriate sentencing range includes sentences
at or
below the two-year mark, a
    sentencing judge must give careful consideration to the imposition of a
    conditional sentence. As outlined earlier, conditional sentences, properly
    used, can ameliorate the longstanding problem of the over-incarceration of
    young Black men.

[181]

Mr. Morris was in custody on other charges when sentenced on these
    charges. Understandably, given the positions of the parties, no one suggested Mr.
    Morris should receive a conditional sentence. We would observe, however, that
    all other factors being equal, had Mr. Morris been before the courts
    exclusively on these charges and had a conditional sentence, like that ordered
    in
Anderson (NSCA)
,
been
    available, the trial judge would have had to give that option serious
    consideration.

[182]

We also agree with the trial judges conclusion that a term of
    probation was necessary. Probation provided for an extended period of
    supervision and access to culturally-sensitive counselling. Both had the
    potential to further Mr. Morriss rehabilitation and provide added long-term
    safety for the community. As probation can only be imposed if a period of
    incarceration is no more than two years, the restraint principle favoured a
    sentence of two years or less: see
Criminal Code
, s. 731.

[183]

Taking
    the factors set out above into account, we would grant leave to appeal, allow
    the appeal, and vary the sentence as follows:

·

On
    the s. 95 charge (count 3), we would impose a sentence of two years, less a
    day. Mr. Morris would be entitled to credit for pretrial custody on a 1.5:1
    basis. We would also impose probation for 18 months on the terms set by the
    trial judge;

·

On
    the other two convictions (counts 2 and 4), we would impose concurrent sentences
    of 15 months.

[184]

In
    keeping with the Crowns concession, this is an appropriate case in which to
    permanently stay the sentence with the exception of the ancillary orders made
    by the trial judge on sentencing. Those orders should remain in effect.

Released: October 8, 2021 JMF

Fairburn
    A.C.J.O.

Doherty
    J.A.

R.G.
    Juriansz J.A.

M.
    Tulloch J.A.

David
    M. Paciocco J.A.

[1]

The sentencing was adjourned several times, for various
    reasons, at the request of the defence. The hearing of the appeal was also
    delayed for a lengthy period for reasons beyond everyones control.

[2]

The court received fresh evidence indicating Mr. Morris had
    been charged with offences related to a home invasion robbery in April 2017
    while on bail on these charges. He was held in custody. Mr. Morris pled guilty
    to those charges and in June 2019 received a sentence of 3 years, 5 months and
    15 days after a credit of 32.5 months for pretrial custody. Mr. Morris was
    released on day parole in July 2020 and full parole in January 2021. He spent a
    total of approximately 3 years and 3 months in jail on these charges and the
    charges related to the home invasion.

It would appear from Mr. Morriss affidavit filed as
    fresh evidence, that although he continues to have significant problems,
    particularly with his health, he has taken responsibility for his criminal
    actions and made several positive steps to better himself and avoid future
    contact with the criminal justice system.

[3]

In
Anderson (NSCA)
, at
    para. 159, the court indicates the use of denunciation and deterrence to
    protect societal values should be informed by a recognition of societys role
    in undermining the offenders prospects as a pro-social and law-abiding citizen.
    If this passage means that deterrence and denunciation take on less
    significance in sentencing for serious crimes if society is somehow complicit
    in the circumstances relevant to the commission of the offence, we must, with
    respect and for the reasons set out, disagree with that conclusion.

[4]
Bill C-22 was introduced and passed first reading in the House of
    Commons before Parliament was dissolved on August 15, 2021.

[5]

The fresh evidence does indicate, that by the time Mr.
    Morris had been released on parole on his subsequent home invasion robbery sentence,
    he had come to accept responsibility for his criminal conduct.