Reconciling mandatory minimum sentences
With the indigenous prison population soaring in Canada, some legal experts are welcoming the news that the Liberal government plans to reduce mandatory minimum sentences.
But they caution that this is only one of many factors that have resulted in indigenous peoples making up more than a quarter of the prison population when they make up less than five per cent of the general population.
Historical discrimination and violence done to indigenous communities through colonial practices means addressing the high incarceration rate will take more than changes to the judicial system.
Mandatory minimums in Canada
At the start of November Justice Minister Jody Wilson-Raybould announced the Liberals would soon be reducing minimum sentencing, a core element of Stephen Harper’s years in office.
But it’s not unique to Conservative governments. Pierre Trudeau’s government introduced mandatory minimums for gun crimes in 1977 and Jean Chretien’s liberals introduced Bill C-68 in 1995, which set mandatory minimums for certain offences, such as armed robbery.
Mandatory minimums were attached to several different offences during the decade Harper was in office, resulting in an increased incarceration rate, despite a falling crime rate in Canada over the last 25 years. This was done through the Safe Streets and Communities Act, passed in 2012, which imposed minimum sentencing policies for drug offences, gun crimes and offences against children.
The following former bills that became a part of the act and included changes to mandatory minimum sentences:
Bill C-54: The Protecting Children from Sexual Predators Act
- Implemented new mandatory minimum sentences for child exploitation offences
- Increased maximum prison sentences for some of these offences
Bill S-10: The Increasing Penalties for Organized Drug Crime Act
- New mandatory minimum sentences for drug offences if offenders are a part of organized crime or if youth are the targets
- Maximum sentence increased to 14 years for the manufacture of drugs in Schedule II of the Controlled Drugs and Substances Act (including marijuana)
- Higher maximum penalties for use of date-rape drugs
Impact on indigenous offenders
Skyrocketing incarceration rates for indigenous offenders are due to a myriad of factors, including mandatory minimum sentences, say some experts.
“Mandatory minimums have impact on indigenous over-representation in the criminal justice system,” said Michelle Mann-Rempel, a criminology professor at the University of Ottawa.
In 1997, indigenous people made up 12 per cent of the prison population. By 2016, the rate jumped to 26 per cent.
When sentencing indigenous offenders, judges apply what’s called the Gladue Principle, said Mann-Rempel, who specializes in Indigenous law and corrections.
This principle was developed after the R. v. Gladue Supreme Court of Canada decision in 1999. It specifies that offenders can serve time in their communities – instead of prison – for less serious offences.
The principle is found in section 718.2 (e) which states “A court that imposes a sentence shall also take into consideration the following principles: all available sanctions or options other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”.
Mandatory minimums prevent judges from using Gladue, even though its purpose is for indigenous offenders to be rehabilitated within their communities, said Mann-Rempel.
“They’re going to have better access to resources in the community, generally speaking, than in a provincial prison,” she said.
“If you think of the impact, even with a one-year mandatory minimum, that person might lose their job, their housing, their spouse or their children,” she said.
The reduction or removal of these mandatory minimums could help reduce the increasing indigenous incarceration rate but it’s only one of many things that need to be done, said Mann-Rempel.
The ongoing over-representation of indigenous peoples in prison can be attributed to a violent colonial history that has separated families through residential schools, and a western justice system that was forcefully imposed, she said.
“It’s actually unbelievable that year after year for the last 20 years, the over representation got worse, every single year,” said Ivan Zinger, executive director and general council for the Office of the Correctional Investigator.
The office investigates complaints from prisoners and examines issues within the prison system. Their most recent annual report from 2015 found that the prison population grew ten per cent over the last decade, growth they attributed to the increased incarceration of indigenous people, women and visible minorities.
He said he was pleased to see that Prime Minister Trudeau addressed the issue of over representation in the prison system specifically, in his mandate letter to Minister Wilson-Raybould.
Possible ways to help the issue include having better legal representation for indigenous people, full application of the Gladue Principle and the provisions listed by the Truth and Reconciliation Commission last year, he said.
But one recommendation the office has made to alleviate the issue has been consistently rejected for a decade.
“We want to appoint a deputy commissioner for indigenous affairs,” said Zinger. This would be one person on the executive committee of correctional services solely responsible for overseeing indigenous issues within the corrections system.
“The biggest disappointment was that they continued to reject that recommendation,” he said. “Governments have an incredible task to stop that over representation or to reverse it.”
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