Defending against sentences imposed upon a cardboard cut-out of an “Offender”

BY SIMONE J. SMITH

“Sentencing 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.

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.” Justice Nakatsuru, R v Jackson, 2018 ONSC 2527

Canada is often praised as a tolerant nation that embraces immigration and diversity. Just turn on your radio, or television, and you will see propagation of the country’s stance on diversity and inclusion. This population diversity, propaganda, and robust human rights framework serve to mask the past and present injustices experienced by African Caribbeans and other racialized groups in Canada. The over-representation and experiences of Black people in Canada’s criminal justice system is increasingly acknowledged by scholars and policymakers as an important social issue, and it stands as a legacy of Canada’s colonial past (Owusu-Bempah & Gabbidon, 2020).

Matthew A. Gasperatti, author of the research study titled, “Crime and Punishment: An Empirical Study of the Effects of Racial Bias on Capital Sentencing Decisions, notes that racism has left an indelible stain on North American history, and remains a powerful social force that continues to shape crime and punishment in the contemporary United States. Interestingly enough, empirical research shows that crime is strongly correlated with economic disadvantage, not race. Given this social reality and the intergenerational trauma caused by slavery, segregation, and discrimination, crime soared in African American communities in the late twentieth century.

Matthew presents data illustrating that in 2019, 51.2% of those arrested for murder and nonnegligent manslaughter were of African descent, as were 41.6% of death row inmates in 2020. Yet, African Americans represent only 13.4% of the population.

This is prima facie evidence that the criminal justice system is racially biased, and this overrepresentation may also be attributable to: unrelated structural racism, economic marginalization, and elevated crime rates in disadvantaged neighborhoods. This demonstrates that disparities in capital trial outcomes are racially motivated and shows that a defendant of African descent is more likely to receive the death penalty than a White defendant ceteris paribus.

Akwasi Owusu-Bempah, Maria Jung , Firdaous Sbaı , Andrew S. Wilton , and Fiona Kouyoumdjian, authors of “Race and Incarceration: The Representation and Characteristics of Black People in Provincial Correctional Facilities in Ontario, Canada,” share that racially disaggregated incarceration data are an important indicator of population health and well-being, but are lacking in the Canadian context. In their study, they aimed to describe incarceration rates and proportions of African Caribbean people who experienced incarceration in Ontario, Canada during 2010 using population-based data.

This is the first Canadian study of its kind to present detailed incarceration rates by race. They found substantial overrepresentation of African Caribbean men in provincial correctional facilities in Ontario. They also found that a large proportion of African Caribbean men experience incarceration.

Recent societal advancements reflect a growing recognition of the systemic issues contributing to the disproportionate incarceration of African Caribbean men, fostering initiatives that aim to dismantle structural inequalities, reform criminal justice policies, and promote equal opportunities, thus charting a course towards reducing the alarming rates of incarceration within this community.

One such initiative is the Sentencing and Parole Project (SPP) a non-profit organization that prepares enhanced pre-sentence reports (EPSRs) for African Caribbean people marginalized by poverty and racial inequality. Their work has been built upon the use of the reports in Nova Scotia where they are ordered by the judiciary to assist with the sentencing of marginalized African Caribbean people. The SPP is founded by experienced counsel: criminal lawyers Faisal Mirza and Emily Lam, and human-rights lawyer Anthony Morgan.

Emily Lam is an accomplished litigator, creative problem solver, and a partner at Kastner Lam LLP. She has appeared at all levels of court, largely representing individuals from marginalized and racialized groups. She has a particular interest in addressing issues of systemic discrimination in both criminal and civil law, and has expanded her practice to include inquests, civil charter litigation and police accountability.

Anthony Morgan is a human-rights lawyer and the manager of the City of Toronto’s Confronting Anti-Black Racism Unit. Anthony has appeared at various levels of court, including the Supreme Court of Canada, the Divisional Court, and he has also appeared before a United Nations human rights committee.

Shawn Richard is an experienced family and estates lawyer. He is the founder of ASR Family and Estates Law, a litigation boutique that practices in all aspects of family and estates litigation. Shawn is a past President of the Canadian Association of Black Lawyers (CABL) and has served as a reviewer of the Peel District School Board to look into issues of anti-Black racism. He has appeared before standing committees and members of provincial and federal Parliament to speak on issues affecting Black communities. Shawn is faculty at the Lincoln Alexander School of Law.

The Sentencing and Parole Project (SPP) prides itself on authoring Enhanced Pre-Sentence Reports (EPSRs) for African Caribbean and racialized offenders and sees this as an important and necessary part of the sentencing process for marginalized individuals. Enhanced pre-sentence reports (EPSRs) are prepared by clinical social workers that provide judges and parole boards with a complete picture of an individual’s personal background, and include recommendations for culturally appropriate, community-based rehabilitation programs.

Through EPSRs, lawyers are able to tell the personal histories of individuals, connecting specific biographical information with research and data about the impact of anti-Black racism.

The process to complete EPSR’s is often complex due to the in-depth and highly individualized approach social workers undertake to write and present a comprehensive review of the offender’s background for the Court. Social workers are also tasked with identifying and examining anti-Black racism in relation to client’s life experiences, which is an involved part of the report writing process and all of which takes considerable time to complete an accurate and thorough report to assist the Court.

Depending on the complexity of the individual’s circumstances, it is reasonable for the report writing process to take up to three months. Less, or more time may be required depending on the circumstances to ensure that systemic factors are investigated and conveyed in writing in a meaningful manner.

The Sentencing and Parole Project (SPP) prides itself on authoring Enhanced Pre-Sentence Reports (EPSRs) for Black and racialized offenders and sees this as an important and necessary part of the sentencing process for marginalized individuals.

For inquiries about obtaining an EPSR, or any other general inquiries, please feel free to reach out to them at sentencingproject.ca.