Gail D. Smith

The Crown appealed a 12-month sentence imposed on a young Black first-time offender for possession of a loaded handgun.

The trial judge had significantly reduced the sentence based on social context evidence of systemic anti-Black racism.

The Court of Appeal held that while social context evidence of anti-Black racism is highly relevant to assessing an offender's moral blameworthiness and rehabilitative prospects, it does not reduce the objective gravity or seriousness of the offence.

The Court also held that the Gladue framework for Indigenous offenders does not apply directly to Black offenders, though it can inform the approach.

The appeal was allowed and the sentence varied to two years less a day, but permanently stayed due to the passage of time.

The Crown sought leave for eight organizations and groups to intervene in an appeal concerning the role of systemic racism and background factors in sentencing of racialized, non-Indigenous offenders and the use of judicial notice and social context evidence in sentencing proceedings.

The motions judge granted leave to all proposed interveners, finding that the issues transcended the interests of the parties and were of significance to the administration of criminal justice.

The interveners were well-recognized organizations with relevant expertise and could offer perspectives different from those of the Crown and respondent.