Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com
On the evening of September 30, 2020, over 120 lawyers and other professionals attended virtually to hear from Roger Love and Faisal Mirza on “Civil, Charter, and Human Rights Challenges,” part 2 of the Race and Policing Series, co-hosted by the Criminal Justice and Constitutional Civil Liberties and Human Rights (“CCLHR”) sections of the Ontario Bar Association (“OBA”).
I had the pleasure of co-moderating the program, along with Alan Spiegel. Spiegel is Crown Counsel on the Firearm Bail Team, a provincial initiative to address gun crime, with more than 20 years’ experience, currently assigned to the province’s Firearms Bail Team. Spiegel moderated the discussion with Faisal Mirza, a criminal defence lawyer in Toronto. Mirza co-founded the Sentencing Project Canada, a non-profit organization that helps marginalized, Black defendants prepare enhanced pre-sentencing reports.
Mirza spoke about the value of pre-sentencing reports, to assist judges to have a fuller picture of a defendant’s circumstances before deciding on a sentence. The Supreme Court of Canada highlighted the need for such evidence in R. v. Gladue,  1 S.C.R. 688, at para. 83, which states:
In all instances it will be necessary for the judge to take judicial notice of the systemic or background factors and the approach to sentencing which is relevant to aboriginal offenders. However, for each particular offence and offender it may be that some evidence will be required in order to assist the sentencing judge in arriving at a fit sentence. Where a particular offender does not wish such evidence to be adduced, the right to have particular attention paid to his or her circumstances as an aboriginal offender may be waived. Where there is no such waiver, it will be extremely helpful to the sentencing judge for counsel on both sides to adduce relevant evidence. Indeed, it is to be expected that counsel will fulfil their role and assist the sentencing judge in this way.
Mirza described his experience using Gladue reports to advocate for fairer sentences for his vulnerable clients. For example, in R. v. Morris, 2018 ONSC 5186, Justice Nakatsuru admitted two reports into evidence before sentencing Morris to 15 months for various weapons offences. One report concerned anti-Black racism in Canada, and the other was about the defendant’s own social history. The judge described the sentence he imposed as “lenient.”
In his presentation, Mirza explained the need and legal rationale for the admission of enhanced reports and practice points for lawyers seeking to prepare them for their own clients. He highlighted how such evidence helps the offender and the community at large. Mirza stressed the importance of avoiding unduly long sentences, which can obstruct rehabilitation, particularly where most offenders will re-enter society after serving time. Further taking this evidence into account is responsive to the documented problem of over-incarceration of Black people.
Next, I was fortunate to moderate a discussion with Roger Love, a litigator currently serving as counsel for the Ontario Human Rights Commission. Love discussed helping clients seek redress for racial profiling. He began his presentation by defining profiling and discrimination. Next, he described the procedures and remedies available in different forums, including the Human Rights Tribunal of Ontario (“HRTO”), the Canadian Human Rights Tribunal, the courts, as well as reviewing the jurisdiction and authority of the SIU, coroner inquests, and the OIPRD.
Next, he discussed his own professional experience at the HRTO, representing the family of a Black, six-year old boy, who was handcuffed by the police at his school in response to a behavioural issue. Love was successful in his HRTO application, after having adduced evidence about stereotypes about black children. See JKB v. Peel (Police Services Board), 2020 HRTO 172. He provided tips to lawyers considering making similar arguments about anti-Black or anti-Indigenous racism and implicit bias.
At the conclusion of the program, the panelists took questions from attendees about the proliferation of video evidence, particularly of police interactions, and about “reverse” discrimination.
Saba Ahmad is a civil litigator in Toronto, called to the New York State bar in 2004, and the Ontario bar in 2009. She Is currently the newsletter editor for the OBA’s CCLHR section, and the public affairs liaison for the Civil Litigation section.