Advocacy Matters - Summer 2020

acism will improve sentencing decisions and
ultimately reduce the over-incarceration of racialized
people in Ontario.
Mirza, a well-respected Toronto-area lawyer,
has almost 20 years of experience as a criminal
trial and appellate lawyer. He opened his own
firm shortly after he finished articling at Greenspan
Humphrey Lavine. Mirza chose to base his
practice in Peel Region after recognizing that
it was an underserviced and rapidly changing
community. He noticed that the people before
the Court were predominantly racialized, but
the bench and Bar were not. He sought to draw
on his own experience to assist a community
that he knew well.
Mirza, Lam and Morgan donate their time spent
running the project. They received a Law Foundation
of Ontario grant to fund the social workers
with specialized anti-racism training who
interview clients, collect information and write
the reports. The Law Foundation also provides
funding for two professors, Dr. Carl James and
Dr. Akwasi Owusu-Bempah, to collect and analyze
data from the project. The academics’ goal is
to use the data generated by the project to identify
ways to improve outcomes and reduce racial
disparities within the criminal justice system.
The project is based on a shared commitment
of its co-founders to educate the justice system
about systemic racism and promote the imposition
of just sentences, and was inspired by a
pair of 2018 cases on which Mirza was co-counsel:
R. v. Jackson and R. v. Morris. Both cases
were decided by Superior Court Justice Shaun
Nakatsuru and both involved young Black men
found guilty of illegally possessing guns. Justice
Nakatsuru sentenced Jackson to 6 years in jail
and Morris to 15 months in jail; both sentences
were substantially lower than what was sought
by the Crown. In explaining his reasons for the
sentences, Justice Nakatsuru made extensive
reference to Impact of Race and Culture Assessment
(“IRCA”) reports describing the history of
anti-Black racism and systemic racism in Canada
and how the defendants’ lives were affected
by racism. IRCA reports are the forerunners to
the SPP’s Enhanced Pre-sentence Reports. They
have been used for several years in courts in
Nova Scotia, primarily to educate judges about
the racism and injustice endured by that province’s
historical Black communities.
In Jackson, Justice Nakatsuru explained the
value he saw in the information contained in
the IRCA reports, “[s]entencing is about judging
a fellow human being. The more a sentencing
judge truly knows about the offender, the more
exact and proportionate the sentence can be.
Sometimes it should include a broad swath of
relevant historical, social, and cultural knowledge.
An IRCA gives the judge an opportunity to
learn about how this relates to the offender. A
sentence imposed based upon a complex and
in-depth knowledge of the person before the
court, as they are situated in the past and present
reality of their lived experience, will look
very different from a sentence imposed upon a
cardboard cut-out of an “offender”.”
The content of the SPP reports varies according
to the nature of the case and the history of
the defendant. The reports often contain evidence
that support a link between the individual
defendant’s personal history and the broader
body of research on how racially biased policies
and historical injustices have harmed Black
people. One example is the disproportionate
impact that Ontario’s academic streaming system
in secondary schools had on the educational
outcomes of racialized children.
While the SPP project is relatively new, Mirza
estimates that they have already worked on
about 20 cases. He points to, as an example of
the project’s work, a recent Brampton Superior
Court sentencing decision in R. v. Kandhai. In
that decision, Justice David Harris noted that
“one’s head would have to be in the sand not
to acknowledge that Mr. Kandhai’s responsibility
is affected in some measure by the racism
and poverty in the community in which
he grew up.” The trial judge said that he gave
significant weight to the effect of that history
on Mr. Kandhai as described in the Enhanced
Pre-sentence Report in determining that 49
months in jail was a fit sentence.
Lam says that the value of these reports is
not only in their direct effect on the length of
the sentence, but also the message they send
to marginalized people that their experience is
being paid attention by judges.
Mirza credits the project’s success so far to
a combination of factors that speak to the justice
system’s increasing embrace of the value of
diversity. Mirza is proud that collaboration between
racialized social workers, academics, and
counsel has produced both quality reports and
advocacy. Likewise, diversity in the judiciary has
contributed to acceptance of the impact of racism.
After working in the areas of sentencing
reform and systemic racism for the past twenty
years with mixed results, Mirza hopes that we
are at a turning point. He believes that mandating
education in this area for current judges together
with increased diversity in the judiciary
will facilitate long-term progress. Ultimately,
advancing these objectives may improve the
perception of the administration of justice for
Black, racialized and Indigenous communities.
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