R. v. Abdulle, 2023 ONCA 20

WHAT YOU NEED TO KNOW

-It is an error for a sentencing judge to dismiss the effect of anti-Black racism on an offender on the basis that people in same position (siblings, etc.) overcame the same obstacles/disadvantage.

BACKGROUND

The jury convicted the appellant (Mr. Abdulle) and his co-accused of second-degree murder in relation to the shooting of Mr. Yusuf Ahmed. The sentencing judge, Justice Rob Clark, imposed a 15-year period of parole ineligibility on the appellant.

On sentencing, the appellant tendered a number of letters from his family and friends which in part spoke to the many disadvantages he faced growing up in a particular neighborhood and attending a school in that neighborhood that failed to provide adequate support for its students. One of the letters, from the appellant’s sister, also spoke about the failings of the school in terms of systemic anti-Black racism and the struggles the appellant faced growing up with a single mother from Somalia.

The sentencing judge ultimately found the letters “unhelpful” as they were not provided as sworn evidence. The sentencing judge concluded that the letters should be afforded little weight and were insufficient to establish that the appellant had suffered from systemic discrimination particularly given that the appellant’s sister attended the same school (as did their older brother) but went on to attend university (unlike the appellant).

The sentencing judge also concluded that the offence was so serious that even if he was persuaded the appellant faced systemic discrimination, it would have no impact on his determination re: parole eligibility.

On appeal, the appellant argues that the sentencing judge erred in (1) rejecting evidence of systemic racism, and (2) erred in principle by concluding that even if he had found that the appellant had experienced systemic anti-Black racism, the seriousness of the offence negated its relevance in fashioning an appropriate sentence.

ISSUES ON APPEAL

It is an error to require a direct causal link between the commission of an offence and the “negative effects of anti-Black racism on the offender before anti-Black racism can be seen as mitigating the offender’s personal responsibility”. However, there must be some connection between the overt and systemic racism identified in the community and the circumstances/events that are said to explain or mitigate the criminal conduct in issue (see R. v. Morris, 2021 ONCA 680). Although the sentencing judge did not have the benefit of Morris, these principles are not new.

The sentencing judge’s remarks regarding the appellant’s brother and sister were inappropriate and unnecessary: the fact that his siblings either avoided or overcame the same obstacles is not dispositive of whether the appellant experienced disadvantage or racism, and whether that disadvantage had some bearing on his moral responsibility.

The Court of Appeal, however, concluded it was not an error for the sentencing judge to conclude that the offence was so serious that practically speaking any finding of disadvantage/racism would not have had an impact on the determination of an appropriate period of parole ineligibility. The sentencing judge did not find that the experience of anti-Black racism would have been irrelevant to sentencing, but rather that the seriousness of this offence meant that whatever diminution of moral responsibility that could be granted to the appellant, the seriousness of this offence pushed considerations of denunciation and deterrence to the foreground.

Disposition - Appeal against conviction dismissed; Leave to appeal granted, sentence appeal dismissed.

For more information on anti-Black racism in the criminal justice system check out Emond’s “Modern Criminal Evidence”, chapters 2, 3 and 8.

Read the full decision here.