For decades sound social science research has shown that the explanation a judge gives for sentencing is a critical factor in achieving procedural fairness. But there are risks. You could say something a bit inarticulate and draw criticism or reversal. There are no easy answers to this dilemma. If it is a thought driving your decision shouldn’t transparency rule the day?

Thanks to Judge Wayne Gorman there is this Canadian decision to tee up the discussion.

R. v. Abdullahi, 2021 ONCA 82, February 8, 2021, at paragraphs 11 to 113:

The appellant is a black man. In considering the fit sentence for the appellant, the trial judge wrote the following as part of his discussion of the need to apply the principles of denunciation and deterrence for offences involving the trafficking of firearms:

Crimes involving the use of firearms that are committed by people of racial minorities, such as the defendants, may lead to stereotypical or other racist attitudes against the minority group at large.

The appellant submits that this comment was an improper basis for increased emphasis on principles of deterrence and denunciation over rehabilitation or mitigating factors. In his factum, the appellant submits: 

The implicit logic of this statement is that crimes committed by members of marginalized communities that align with stereotypes or other prejudicial beliefs about their community are necessarily more serious and merit greater denunciation because they can reinforce bigoted attitudes. Although the intent of this consideration may be well-meaning and motivated by a desire to reduce prejudice, its result is to apply a unique aggravating factor to members of minority groups, and convey that marginalized offenders are responsible for bigotry directed against their communities. Effectively, this would require longer sentences for offenders from marginalized backgrounds whenever they commit crimes that bigots believe their community is more prone to committing, as a punishment for reflecting poorly on their community. This was improper.

I accept the appellant’s submission about the implicit logic of the trial judge’s comment and the risk that it applies a unique aggravating factor to members of minority groups. While I have no doubt that the trial judge made the comment in furtherance of the fundamental purpose of sentencing to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society, his apparent imposition of a unique aggravating factor on members of minority groups has no place in Canadian sentencing principles. It was an error for the trial judge to have made that statement.