Misapplication of Morris?

R v Lowe, 2025 ONCA 475: Appeal from a three-year sentence for very youthful first offender who pled guilty to three pharmacy robberies dismissed. A disappointing decision because the trial judge took a very narrow approach to anti-Black racism in sentencing. In dismissing the appeal, the panel tacitly endorsed this approach.

The 18-year-old Black defendant tendered evidence of systemic racism in his life through his PSR. The evidence disclosed that he had personally experienced racism in education and policing. His father had been arrested for drug offences and deported when he was 4 years old. Though only 18 at the time of the offences, he had already lost three friends to extreme violence.

The sentencing judge accepted that the appellant had experienced systemic racism but found that since there was no connection between that experience and the offending—and therefore, no mitigation on sentence. The Court of Appeal held that this conclusion was open to him and that he did not err.

This is troubling because systemic racism works not by forcing people to choose crime, but by decreasing pro-social opportunities and increasing exposure to criminogenic factors like those experienced by Mr. Lowe. Moral culpability is not diminished because a defendant has other choices; it is diminished because those choices are dramatically and disproportionately constrained by the material impact of racism on Black communities. This case was a missed opportunity to endorse a thick conception of systemic racism that gives proper weight to the social context of Black defendants.

Neither of the big decisions on sentencing Black defendants—Morris (ONCA) and Anderson (NSCA)—were appealed to the Supreme Court. Perhaps this case is an opportunity for our apex court to weigh in!