Adrian Humphrey, Ottawa Citizen, September 23, 2018

An Ontario judge voices his — and the justice system’s — struggle balancing a public outcry over gun violence with systemic racism against young black males in a remarkable, lengthy and lenient judgment against a Toronto man caught with a loaded handgun after fleeing police.

“It seems like not a day goes by without the media reporting yet another gun tragedy, sometimes very horrible ones. It happens in every neighbourhood. It happens in my own. None are immune from gun violence. People are rightfully outraged and bewildered by it. They feel powerless in its onslaught. Afraid,” writes Ontario Superior Court Justice Shaun Nakatsuru in a judgment released last week.

“My role is to give expression to that fear. To condemn the crime and those who do it. But it is not my role to give in to that fear, no matter how strongly it seizes the community’s psyche.

“Reason must control emotion in sentencing. Because in our system, a sentence is not just about the crime. It must be also about the offender.”

Over objections from Crown prosecutors, Nakatsuru accepted two reports, one called “Crime, Criminal Justice and the Experience of Black Canadians in Toronto,” and one detailing the “social history” of the offender, Kevin Morris.

Morris was 22 at the time of his 2014 arrest.

Toronto police, responding to a home invasion, saw four black men walking in a parking lot. An officer stopped them but Morris ran. A police car trying to cut off his escape collided with him, but Morris kept going and ditched his jacket with a loaded .38-calibre revolver in the pocket.

A jury found him guilty of possession of a loaded, prohibited firearm and related crimes. The Crown asked for a minimum of four years in prison. His lawyers sought one year before a reduction for being struck by the police car.

Nakatsuru released his judgment with a lengthy addendum on how social circumstances of blacks may relate to criminal behaviour so “every judge on every sentencing of a Black offender” can consider it.

Nakatsuru noted black Canadian experiences are rooted in colonialism, slavery and segregation. That perpetuates systemic racism bringing negative treatment by schools, services, government institutions and police; disparate education, hiring and pay help impoverish and marginalize the community, making the problem “cyclical and compounding.”

“The conclusion is inescapable,” the report, quoted by Nakatsuru, says — “young Black Canadians who view the system as unjust are less likely to believe they should abide by that system’s rules.”

Morris’s mother and father came from Jamaica with modest resources, court heard. His father died when Morris was seven and his mother worked to support them, requiring frequent absence while living in social housing.

His upbringing was “influenced by the streets.”

Morris found school challenging and he was placed in a special needs school, but felt unsafe crossing rival neighbourhoods to get there and was often absent, court heard. He didn’t graduate high school and, when he tried to return as an adult, he dropped out after being stabbed while walking in his neighbourhood, losing his spleen and half his pancreas.

In 2014, he was diagnosed with post-traumatic stress disorder.

“Recognizing, as the law must, that individuals are held responsible for the acts they commit that breach the criminal law, the reality is that this choice to act may be constrained by an offender’s life circumstances,” Nakatsuru writes.

The judge considered the societal backdrop to Morris carrying a gun and fleeing police.

“I can understand why a man of your background, a young Black man, suffering from trauma, with such limited opportunities, with feelings of despair, being influenced by others, may think that I will have that gun,” Nakatsuru writes.

Similarly, he did not see Morris running from police as a reason to enhance his sentence, accepting “systemic issues that have led to distrust between the police and Black men.”

“I appreciate not every young Black child who is subject to the same pressures as you makes the choices you did. Nothing that I say here should be taken to mean that you did not have a moral choice when you committed these crimes. However, what I do say is that your choice was constrained by these forces.

“The young man who makes the choice to pick up a loaded illegal handgun will not likely be a product of a private school upbringing who has the security of falling back upon upper middle class family resources. Rather, he is likely to be a product of oppression, despair, and disadvantage.”

Morris was given a 15-month sentence — minus three months for Charter violations (being hit by a police car and being questioned after asking for a lawyer). Nakatsuru acknowledged his sentence is “lenient” and he is “taking a chance.” He asked Morris not to blow it.

Earlier this year, Nakatsuru took racial circumstances of a black man into account at sentencing of Jamaal Jackson; urging judges to take judicial notice of systemic racism, he rejected a mandatory approach that the Supreme Court of Canada requires for indigenous offenders.