Court of Appeal for Ontario

Date: 2019-06-18

Docket: M50454, M50455, M50456, M50459, M50461, M50462, M50463, M50464 & M50469 (C65766)

Motions Judge: Strathy C.J.O.

Between

Her Majesty the Queen Appellant

and

Kevin Morris Respondent

and

The David Asper Centre for Constitutional Rights, Criminal Lawyers' Association, Aboriginal Legal Services, South Asian Legal Clinic of Ontario, Chinese and Southeast Asian Legal Clinic and Colour of Poverty/Colour of Change Network, The Black Legal Action Centre, Canadian Civil Liberties Association, Canadian Muslim Lawyers Association, Urban Alliance on Race Relations and Canadian Association of Black Lawyers Proposed Interveners

Counsel

For the Appellant: Shawn Porter and Roger Shallow

For the Respondent: Faisal Mirza and Gail D. Smith

For the Proposed Intervener The David Asper Centre for Constitutional Rights: Nader R. Hasan and Geetha Philipupillai

For the Proposed Intervener the Criminal Lawyers' Association: Emily Lam and Marianne Salih

For the Proposed Intervener Aboriginal Legal Services: Caitlyn E. Kasper and Douglas Varrette

For the Proposed Interveners the South Asian Legal Clinic of Ontario, Chinese and Southeast Asian Legal Clinic, and Colour of Poverty/Colour of Change Network: Saman Wickramasinghe and Zachary Kerbel

For the Proposed Interveners the Black Legal Action Centre and the Canadian Association of Black Lawyers: Jonathan Shime and Nana Yanful

For the Proposed Intervener the Canadian Civil Liberties Association: Dana Achtemichuk

For the Proposed Intervener Canadian Muslim Lawyers Association: Taufiq Hashmani

For the Proposed Intervener the Urban Alliance on Race Relations: Annamaria Enenajor

Heard: June 13, 2019

Reasons for Decision

[1] Eight organizations and groups of organizations seek leave to intervene in this appeal, which raises issues concerning the role of systemic racism and background factors in the sentencing of racialized, non-Indigenous offenders and the use of judicial notice and social context evidence in the sentencing proceedings.

[2] The appellant Crown states in its factum on the appeal that this appeal provides "an opportunity for this Court to develop a clear analytical framework that provides guidance to trial judges on how systemic and background factors may be properly applied to the sentencing" of racialized offenders (italics in original). It suggests that recent cases in this province and elsewhere in Canada have been inconsistent in their treatment of the issue.

[3] As a general rule, interventions in criminal proceedings should be granted sparingly: R. v. Seaboyer (1986), 50 C.R. (3d) 395 (Ont. C.A.), at p. 398. But the issues that arise in this appeal transcend the interests of the parties and are of significance to the administration of criminal justice. The proposed interveners are well-recognized organizations with experience and expertise in the issues raised in this appeal. They can offer perspectives that are different from those provided by the Crown and the respondent. I am satisfied that they can make useful contributions to the issues raised in this appeal.

[4] I am also satisfied that granting leave to intervene will not cause injustice to the Crown. Any potential for injustice can be mitigated by the terms set out below.

[5] In its balanced and helpful factum on these motions, the Crown acknowledges that the submissions of most of the proposed interveners may be of assistance to the court. Ultimately, in oral argument, the Crown did not oppose granting leave to intervene to all the proposed interveners, on the terms set out below.

[6] Given that this appeal has been scheduled and that the submissions of the Crown and respondent will take up most of a court day, I will limit the oral submissions of each of the eight interveners and groups of interveners to five (5) minutes in length. This limit is subject to increase in the discretion of the panel. Further, each of the eight interveners and groups of interveners may cede its time to another intervener or group of interveners. This reduced time limit reflects the number of interveners and the limited time available in this case. It should not be regarded as a new standard. In cases where multiple interveners are anticipated, it would be prudent to bring motions for leave to intervene before the appeal is scheduled, so that sufficient time can be reserved.

[7] In the result, it is ordered as follows:

Order

(a) Each of the proposed interveners and groups of interveners is granted leave to intervene;

(b) Each of the eight interveners and groups of interveners may file a factum of not more than 15 pages in length and shall be entitled to make oral submissions 5 minutes in length, in the discretion of the panel. Each intervener or group of interveners may, if so advised, rely solely on its factum and cede its time allocation to another counsel;

(c) The interveners' facta shall be filed by July 19, 2019;

(d) The interveners shall accept the evidentiary record as it exists and shall not augment the record;

(e) The interveners shall not expand or add to the points at issue, nor shall they make any statement or argument concerning the outcome of the appeal;

(f) The interveners shall make reasonable efforts to avoid duplicating the submissions of the parties or each other and shall attempt to identify any issues on which there is agreement;

(g) The interveners shall not seek costs and shall not be liable for costs;

(h) The respondent shall be entitled to file a factum of not more than 40 pages in length, by August 23, 2019; and

(i) The Crown shall be entitled to file a factum of not more than 20 pages in length in response to the facta of the interveners and in reply to the respondent by September 6, 2019.

G.R. Strathy C.J.O.