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by Michael P. Bury
What is the appropriate sentence for possession of an illegal handgun which is used to kill someone in self-defence during a racist attack? In the recent Ontario provincial court case of R v Roberts (2023 ONCJ) the court was called upon to determine the mitigating aspects of racism faced by an offender during the commission of an offence.
In this case, the offender travelled from his home in Ajax to Kingston to traffic drugs. He took a loaded illegal handgun with him for protection. He had no intention of using the gun. In the days leading up to the offence, he stayed at an apartment on Fergus Street in Kingston with a number of people who the sentencing judge described as anti-social and entrenched in the local criminal and drug subcultures.
Several of the apartment residents formulated a plan to rob their house guest. Text messages revealed that this was motivated by racism. The offender in this case was a Black man.
One morning, the offender woke up to find himself being threatened with a machete and a pellet gun that looked like a real firearm. He honestly believed that he would be killed or seriously harmed. He shot and killed one of his assailants in self defence. The two surviving assailants were charged with attempted robbery and conspiracy to commit robbery and the deceased would have been charged if he had survived.
The offender ran and was arrested shortly thereafter. The police found the discarded gun behind a convenience store, loaded. They also found a quantity of drugs and cash on the offender, but he was not charged with any drug related offences.
The accused was initially charged with murder and held for bail. He spent a total of 127 days in jail at the height of the pandemic. The murder charge was eventually withdrawn, but the offender still had to be sentenced for the possession of the illegal handgun.
The sentencing judge considered several aggravating and mitigating factors. Ultimately, the fact that the offender in this case had initially been charged with murder despite the fact that he was in fact the victim of a racist attack guided the sentencing judge’s analysis and led her to depart from the normal sentencing analysis for this type of offence.
The sentencing judge took racism into account in this case both in the sense that the offender had been a victim of a racist attack and had also experienced anti-Black racism for his entire life, which had limited the choices available to him and ultimately contributed to him being in a situation where he ended up choosing to traffic drugs and carry an illegal firearm. Following the Court of Appeal’s decision in R v Morris, she found that the constellation of factors in this case made it appropriate for her to emphasize the principle of restraint in passing her sentence, rather than other factors such as denunciation, deterrence and retribution.
The sentencing judge ultimately held, after taking into consideration the substantial amount of pre-sentence custody that the offender had already served, that a fit sentence would be conditional sentence of just under 18 months.
This case highlights a positive recent trend in Ontario case law when it comes to sentencing racialized offenders. While systemic racism does not justify an automatic discount, the existence of systemic racism and evidence of its impact on an offender’s life can show that the offender had a reduced level of moral blameworthiness. Here, not only had the offender suffered the effects of systemic racism in its depressingly typical form, but he was also the victim of a racist attack and then charged with the most serious offence in Canadian law. The ultimate result is another example of a court using its sentencing discretion to fashion a sentence that serves a sufficient punitive purpose, while simultaneously giving weight to the principle of rehabilitation and helping to address the continuing problem of the over incarceration of young Black men in Canada.