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Jamie Sarkonak: The crusading judge who helped Liberals build a race-based sentencing regime

As a lawyer, Faisal Mirza pushed judges to adopt racial reasoning. Now on the bench, he uses that reasoning to toss out evidence

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There is a judge on the Ontario Superior Court of Justice whose signature move is letting violent men walk free because of racism. One of the architects of race-based sentencing, his name is Faisal Mirza, and he was appointed to the bench by former prime minister Justin Trudeau in 2022.

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Mirza’s flourish of race-based acquittals is not a case of a judge gone rogue: indeed, it’s perfectly on-brand. He was writing about the need for more racial considerations in the Canadian justice system in 2001, before he even became a lawyer. Back then, he argued in the Osgoode Hall Law Journal that mandatory minimum sentences for drug and weapons offences would be racist because of the disproportionate impact they’d have on Black people.

Jamie Sarkonak: The crusading judge who helped Liberals build a race-based sentencing regime Back to video

Toronto police, he asserted, were racist because of the arrest statistics they produced: in 1988, Black individuals comprised 51 per cent of drug arrests, 82 per cent of mugging arrests and 55 per cent of purse snatching arrests. This, he said, was evidence of over-targeting. He concluded that more mandatory minimums would exacerbate the effect, because the threat of being convicted on a charge with a guaranteed jail term would disproportionately pressure Black accused persons to make plea deals and forfeit the opportunity to expose racist police at trial.

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This became a career pursuit. When the Supreme Court was deciding whether to strike down the mandatory minimum for illegally possessing a loaded firearm in 2014, he argued as an intervener in the case that its disproportionate impact on Black individuals needed to be taken into account. The court ultimately ruled that this mandatory minimum was unconstitutional.

In 2018, Mirza laid the foundation for Ontario’s racial sentencing regime. He was the defence lawyer of Kevin Morris, a Black man who was convicted of various firearms offences. They were lucky to draw the hyper-progressive, destructively lenient Shaun Nakatsuru for a judge. Mirza filed two racial context reports about Morris and Black people as evidence, and the judge emphatically agreed to consider them. He settled on a 15-month sentence to account for the racial factors, even though three years was considered the starting point. On appeal, the Ontario Court of Appeal made racial considerations in sentencing the province-wide rule in 2021.

In 2019, he was also an intervening lawyer in the Supreme Court case of R. v. Le, advocating for racial considerations in assessing the legality of police searches, which the court agreed with.

In 2020, he co-launched a non-profit that wrote pre-sentence reports for non-white criminals, and for Black offenders in particular. It started as an optional service that defence lawyers could use, but it became essential in 2021, when the Ontario Court of Appeal ordered the province’s judges to give racial discounts to Black offenders if the individual’s criminal conduct could be somehow connected to racism and its nebulous cousin, “systemic racism.” For that work, and for its contributions to the anti-racism movement, it won two federal government grants totalling $780,000.

It was also in 2021 that Mirza, while representing the Criminal Lawyers’ Association, succeeded in convincing the Nova Scotia Court of Appeal to adopt racial sentencing in the case of R. v. Anderson. The court quoted his submissions: “It is time that the distinct mistreatment of Black people in society be given its due recognition in criminal sentencing.”

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Mirza was rewarded by the feds with a judicial seat in 2022. Now a judge on the Ontario Superior Court of Justice, he’s able to put his principles into practice.

In 2024, Mirza decided the case of a middle-aged Indigenous man who sexually abused his girlfriend’s daughter between the ages 11 of 13 by forcibly kissing her, fondling her breasts and genitals, and sexually assaulting her with his mouth. The Crown asked for a sentence between 4.5 and 5.5 years, but after Mirza considered the impact of colonialism and racism, he settled on three years.

In 2025, Mirza presided over the case of a Jamaican-Canadian pimp with a history of criminal activity who trafficked a semi-homeless Indigenous woman. He pegged the starting point for the sentence at five years, but shaved a year off to address the man’s personal circumstances — primarily racism, which cumulatively put the offender at “higher risk for negative decisions and involvement in crime.”

It was around that time that Mirza started throwing evidence out because of “racism.” In one case, police had detained the occupants of a car idling in a sketchy motel parking lot at 3 a.m. whose licence plate had been flagged by the gang unit. Police repeatedly asked him to exit the vehicle for a sobriety check, and the man — who was actually wanted for a stabbing at Tim Horton’s weeks earlier — refused; police broke his window, and when he still refused to exit, they tased him. After a struggle to subdue the man, during which he tried to put the vehicle in gear, police found a loaded firearm on the ground next to the driver’s side. This triggered a search of the car that turned up cocaine. The man was on a no-weapons order.

Mirza went on to rule that police actions constituted “racist mistreatment,” and excluded all evidence, from questioning to the loaded gun. The car was associated with a black male and gang “flags,” which the judge found to be the reason for arrest; the officers didn’t immediately identify the man (in Mirza’s view, they jumped to a racist conclusion); the officers behaved as if the vehicle’s occupant was dangerous (not unreasonable, considering it was gang-flagged with tinted windows, and not incorrect, considering the loaded gun). Mirza also chastized the police for not reading the man his rights as he resisted arrest (though it’s appropriate to wait until the situation is under control).

The arrest still deserved scrutiny, but Mirza’s diagnosis of racism tilted the calculation of whether to exclude evidence strongly in the accused’s favour: “When a court finds racial profiling or racist mistreatment the evidence must be excluded.”

In January, Mirza issued another judgment tossing out evidence for men caught possessing loaded firearms on the basis of racism. In that case, a victim had reported being robbed by two Black men in a red BMW, possibly with a gun, and provided the licence plate number and the robbers’ associated address. Police found the car in the parking lot of that address and towed it away for investigation. As another officer went to the building superintendent’s office in hopes of finding the owner, and soon enough, the owner came to the office with two companions, hoping to track down his car.

The officer, outnumbered, tried to detain the men on suspicion of robbery. The owner tried to run off, and in the ensuing scramble, a loaded handgun fell from his waistband. The officer held the man on the ground until backup arrived, but did not read him his rights in that time — a fatal delay for the case, in the eyes of the judge.

The whole interaction, he found, was tainted by racism: the officer “decided to dominate the Applicant physically and disregard of his rights because he was Black,” he wrote, downplaying the dangerous situation and the description-matching suspects.

To his credit, there have been instances where Mirza refrained from applying a racial discount, and from tossing out evidence because of racism, but it doesn’t excuse the other times when he let his biases reign. It’s undeniable that he has a habit of projecting racism in assessing any interaction with the state and undermining public safety with his assumptions. One day, it’s going to end up getting someone hurt — if it hasn’t already.

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