An Ontario Superior Court judge has been asked to adopt a new way of sentencing Black offenders, similar to how courts must consider the impact of the social and cultural history of Indigenous Canadians when determining punishment.

On Tuesday, Toronto defence lawyer Emily Lam told Justice Shaun Nakatsuru her case is an opportunity to address the problem of over-incarceration, which has been viewed as a relevant sentencing factor in cases involving Indigenous offenders, who, like Black people, are over-represented in prison.

“We can’t continue what we’re doing, clearly something needs to change,” Lam said concluding her argument on behalf of Jamaal Jackson, 33, who is originally from Nova Scotia.

Jackson is Black and believes he has Indigenous ancestry. He pleaded guilty last November to possession of a prohibited firearm and breach of a prohibition order. He has a lengthy criminal record and has been incarcerated for much of his adult life.

At the outset of the sentencing hearing, and with the Crown’s permission, Lam submitted a report to the court called an Impact of Race and Cultural Assessment (IRCA), written by Halifax social worker and sociologist Robert Wright.

“It is a founding premise of IRCA’s that a person’s race and cultural heritage should be considered as a significant factor in considering their sentence in a criminal matter,” Wright says in a letter filed with the court. Nova Scotia is the only province that routinely orders — and pays for — such reports, Lam said in an interview.

Across Canada, judges regularly request “Gladue” reports — named for a 1999 Supreme Court of Canada case — in cases involving Indigenous offenders. They encourage sentencing judges to be sensitive to the disadvantages and systemic racism faced by Indigenous people and consider alternatives other than incarceration.

The IRCA report includes interviews with Jackson, and his family members, about his childhood in Cole Harbour, N.S., and his path to the justice system which was “complex and tragic. A light-skinned African Nova Scotian with an absent father and a mentally ill mother, his psycho-social and racial identity development was impaired from his earliest years,” the report states.

In her factum filed in court, Lam wrote that “Black Canadians ... have some important shared experiences with Aboriginials, including slavery, colonialism, segregation and racism, which has contributed to their involvement in the justice system.”

She explained to the Star on Tuesday that her argument is not that the experience of Black Canadians is the same as that of Indigenous people.

“The argument is that they are unique and different and not to compare them as apples to apples, but that the impact on the over-incarceration ... is the same,” she said.

It will be up to Nakatsuru to determine how much weight to give the IRCA report, Lam said.

If the judge finds it useful and recommends the criminal justice system should consider “using these reports similar to Gladue reports, and ordering them, that would be a precedent,” she said.

She is seeking a sentence for Jackson of four years incarceration, minus time served in custody.

Crown attorney Sue Adams, who is seeking a sentence in the range of 7.5 to 9 years for possession of a loaded firearm and one year consecutive for breach of probation, told the judge she is not opposed to the courts having more information.

“The more information we have about an offender, their entire history, the better, it’s always important,” Adams said. “I’m not saying that the reports are not important, I’m saying they should be detailed, there should be more than self-reporting, but they shouldn’t be mandatory.”

And courts already rely on a plethora of pre-sentence reports, including psychiatric assessments, psychological and cultural assessments, “but they consistently say background factors and systemic issues do not allow for mitigation of sentence in very serious cases,” she argued.

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When asked if he had anything to say, Jackson delivered a passionate, 20-minute appeal to the judge asking for leniency and pledging to live a lawful lifestyle.

“I actually am someone that can successfully reintegrate back into the community and it’s just not talk, or mumble jumble,” he said. “I just swayed the wrong the way and I want to come back and I need that opportunity.”

Nakatsura said he will sentence Jackson April 23.