Systemic racism and discrimination should be taken into account when African Canadians are sentenced, a Toronto judge said Monday, in order to address the issue of their over-representation in the criminal justice system.

But Superior Court Justice Shaun Nakatsuru declined to apply the approach used in sentencing Indigenous people to the sentencing of African Canadians such as Jamaal Jackson, who is Black.

“I find little value in comparing the situation of Indigenous persons to African Canadians. There are similarities but there are also significant differences,” Nakatsuru wrote.

As well, the sentencing of Indigenous people is unique and their special recognition is enshrined in the Criminal Code, he noted.

Jackson, 33, pleaded guilty last year to possession of a loaded gun and breaching a court order prohibiting him from having such weapons. He has a long and serious criminal record and has spent most of his adult life behind bars.

At his sentencing hearing last month, defence lawyers Emily Lam and Faisal Mirza asked Nakatsuru to adopt a new way of sentencing Black offenders, similar to the way courts consider the history of Indigenous people.

In Canada, judges can request “Gladue” reports for Indigenous offenders, which encourage sentencing to be sensitive to the disadvantages and systemic racism they face and to consider alternatives to jail.

Jackson’s lawyers provided the judge with studies on anti-Black racism, and an Impact of Race and Cultural Assessment (IRCA) report written by Halifax social worker and sociologist Robert Wright. The IRCA included interviews with Jackson and his family about his childhood in Cole Harbour, N.S., and his experiences with racism and economic disadvantage. It also included historical context about the racism experienced by Black people living in Nova Scotia.

In his 35-page decision, Nakatsuru said the report painted a “fuller picture” of Jackson’s slide into criminality, and agreed “the time has come” where he as a sentencing judge “must take judicial notice of slavery, policies and practices of segregation, intergenerational trauma and racism, both overt and systemic, as they relate to African Canadians.”

But while Nakatsuru said that alternatives to incarceration — such as community healing — would be appropriate in some situations, this case required a prison sentence.

He turned down the Crown’s request for a sentence of 7.5 to nine years, and the defence argument for four years. Instead, he imposed a six-year sentence, adding it was not a “race-based discount.” After credit for pre-trial custody, Jackson will serve another two years and 257 days in prison.

“We think it’s a watershed moment in the sentencing of African-Canadian offenders,” Mirza said outside the court.

“There’s a number of segments of the ruling that have moved the needle forward, in particular the acknowledgement of the systemic legacy of discrimination against African Canadians.”

Lam called it a “beautiful judgement.”

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“We hope that this decision will have a long-standing impact on the manner in which African-Canadians are sentenced in the years to come,” she wrote in an email.

Jackson, however, was not impressed. “How do they justify giving me six years for one firearm? Someone needs to appeal that. So I have to do 18 months now?” he said before being led out of court.