A newly launched not-for-profit organization is embarking on a mission of tackling anti-Black and systemic racism in the justice system by working to directly support those impacted during the sentencing process and to better educate the legal community.
Faisal Mirza, a criminal trial and appeals lawyer, is one of three directors who recently launched The Sentencing and Parole Project.
The initiative, which has been in the works for months, has three focus areas: Addressing the over-representation and mistreatment of racialized residents in correctional facilities; proving education as it relates to anti-Black and systemic racism to all those involved in the justice system; and providing courts with enhanced pre-sentence reports.
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“You have systemic discrimination into society intersecting with systemic discrimination in the justice system, so they don’t live in silos,” Mirza told Global News in an interview.
“In society, you will have a disproportionate number of racialized people living in the lower socio-economic conditions they will experience … which numerous studies have now documented.”
Indigenous, Black inmates disproportionately in Canadian correctional facilities
According to the Office of the Correctional Investigator’s (OCI) 2018-2019 annual report, Indigenous and Black inmates were over-represented in Canada’s corrections system.
While the 2016 Census found that approximately 4.9 per cent of Canada’s population is Indigenous, the OCI report said 28 per cent of those in custody were Indigenous — an 11 per cent overall increase compared to 10 years earlier.
Census data estimated Black residents make up almost 3.5 per cent of Canada’s overall population, but the OCI report found eight per cent of those in custody are Black — an overall one per cent increase compared to 10 years earlier and a two per cent decrease compared to three years earlier.
Issues have been raised about mistreatment in correctional facilities. The report noted “though still low,” discrimination complaints appeared to be trending upward. The OCI said reports of discrimination from Black inmates represented 37 per cent of all complaints between 2008 and 2018.
The OCI report also noted there has been a disproportionate increase of inmates who identify as being Muslim, noting there has been a 74 per cent increase over 10 years — now representing 7.73 per cent of the overall population. The report said the reason for this increase was unclear.
Meanwhile, the OCI found there was a “relative and proportional decline” in the total number of white inmates. As of 2018-2019, 52 per cent of those in custody are white — down overall by 14 per cent. 2016 Census data estimated almost 73 per cent of Canada’s population is white.
Pre-sentence reports and the call for enhanced information
Mirza said when it comes to the justice system and addressing systemic racism, an area that needs immediate attention is the pre-sentence report process.
Pre-sentence reports are often requested of probation officers by judges in cases where someone has been found guilty of a serious criminal offence. The specific policies and use of pre-sentence reports vary by province and territory. Judges are not bound by pre-sentence reports and can potentially use the reports as one of multiple factors in sentencing.
“The problem with the conventional pre-sentence report is that it is insufficient and inadequate, and over the past several decades we’ve relied on those conventional pre-sentence reports to provide essential information about offenders and the reality is that they fail to do so,” he said, noting while some submitted reports are decent others have just basic biographical details with limited background information.
“What we’ve tried to do is address that gap in information because we think it’s critical for judges to have that information in order to fairly sentence people — in order to get to the right determination.”
In Ontario’s pre-sentence report process, information gathered by a probation and parole officer includes factors relating to personal and family details, education and employment history, substance use and addictions, character and behaviour, a response to community supervision, an overall assessment and recommendations for the court. The officer can potentially gather information from interviews with the person charged, family members and police sources.
At the Sentencing and Parole Project, an enhanced pre-screening report prepared for the court is written by a clinician or an expert with medical training. They too can potentially conduct interviews with the person charged as well as with family and friends.
The enhanced report more broadly considers the person’s social history — how they identify, background on their family, their social environment, their social relationships, education, lived experiences with anti-Black racism, work history, jail conditions, substance use and addictions, their character and behaviour, and an overall assessment and summary. The enhanced report may also include more detailed interview notes and contacts.
“It’s very difficult for an individual over the span of a single interview that lasts a few hours to tell them about what it was like to grow up in an impoverished neighborhood, what it was like to have significant police presence and negative experiences with the police, what it was like to be streamed in the education system and be subject to unfairness,” Mirza said, noting systemic disadvantages have affected the ability to get employment for many.
“So it’s very hard for a probation officer to get that information from an individual because they don’t have the resources, they don’t have the time, they don’t have the training, and they don’t seem to be able to develop the trust relationship in order to pull that information out.
“If you can’t identify what the person has gone through, got them up to that point, then you can’t really figure out what programs that they should be put into and then that’s where you get the problems and the jails.”
Mirza said the enhanced pre-sentence report process is newer in Ontario, noting it took quite a bit of time to get the first test case report done. He said The Sentencing and Parole Project can now potentially file an enhanced report between 60 and 90 days, a time period consistent with conventional reporting.
‘Level the playing field’
While Mirza said the enhanced pre-sentence report process is newer in Ontario, he cited “pioneering” work in Nova Scotia by social worker Robert Wright.
He said courts in Nova Scotia aren’t waiting for defence lawyers to get legal aid funding and that enhanced pre-sentence reports are routinely ordered by judges.
Mirza said some lawyers have brought that approach to Ontario, adding over-representation of racialized residents in the justice system is a major concern.
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“[The reports] provide the type of information that’s required for fairness, for decisions to be based on accurate information, so they’re evidence-based decisions. [It’s} no different than if somebody had a mental health issue — you would want the judge to know the particulars of that mental health issue so that they could use that information to determine what the right disposition is and what the right programs are for the individual,” he said.
“When they receive a report, it’s not an ‘aha’ moment. It’s an, ‘I understand. I get it. I’ve been exposed to this,’ right? And I can connect the dots so that when the individualized information is presented, they move away from the one-size-fits-all approach.”
Mirza said providing access to enhanced reports helps “level the playing field” for those who are marginalized and don’t have money to get privately funded pre-sentence reports prepared by social workers and doctors.
“They provide that information and the courts will look at that and say, ‘you know, this is a good person who did something wrong.’ And then the filter through which those people are examined is entirely different,” he said.
“This is a very important piece of the puzzle and we think that there needs to be a recognition that these better pre-sentence reports are required for everyone, and in particular for people who are over-represented, to understand their experiences with racial inequality and poverty.”
Educating the legal community, calls for other measures
When it comes to tackling systemic discrimination, Mirza said the provincial and federal governments have a lot of work to do and need to make investments.
He said education and government action needs to start at the earliest levels of education, citing recent reports of allegations of racism at the Peel District School Board.
As for other justice system reforms, he called for mandatory anti-Black racism training for all those in the justice system, improved use of force and de-escalation training, and scrapping mandatory minimum sentences.
“Anti-Black racism is at the forefront right now because of the social movement that’s going on and it presents an opportunity for us to do some inflection and look at what are the deficiencies in our justice system.”
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