



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Morris, 2019 ONCA 509

DATE: 20190618

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

Strathy C.J.O. (Motions Judge)

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

Shawn Porter and Roger Shallow, for the appellant

Faisal Mirza and Gail D. Smith, for the respondent

Nader R. Hasan and Geetha Philipupillai, for the proposed
    intervener The David Asper Centre for Constitutional Rights

Emily Lam and Marianne Salih, for the proposed
    intervener the Criminal Lawyers Association

Caitlyn E. Kasper and Douglas Varrette, for the proposed
    intervener Aboriginal Legal Services

Saman Wickramasinghe and Zachary Kerbel, 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

Jonathan Shime and Nana Yanful, for the proposed interveners
    the Black Legal Action Centre and the Canadian Association of Black Lawyers

Dana Achtemichuk, for the proposed intervener the Canadian
    Civil Liberties Association

Taufiq Hashmani, for the proposed intervener Canadian
    Muslim Lawyers Association

Annamaria Enenajor, for the proposed intervener the Urban
    Alliance on Race Relations

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:

(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.


