Closing the gap between the rhetoric and reality of Indigenous sentencing

There is a contradiction at the heart of Canada’s approach to criminal sentencing, especially Indigenous people convicted of an offence. 

Sentencing principles and Supreme Court jurisprudence direct judges to give special consideration to the circumstances of Indigenous offenders. Section 718.2(e) of the Criminal Code directs courts to consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances […] with particular attention to the circumstances of Aboriginal offenders.” According to the Supreme Court, this provision “is remedial in nature and is designed to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.”

However, sentencing judges are often constrained by mandatory minimum penalties (MMPs) and other restrictions that undermine the restorative approach. While MMPs have existed in Canada for many years, they have proliferated in recent decades, with starkly differential impacts. In 2007-2008, Indigenous people made up 17.5% of individuals admitted to federal custody for a firearms offence punishable by an MMP. By 2016/17, the number had risen to 40%.

That’s why I’m enthusiastically supporting Bill C-5, legislation that will help close the gap between Canada’s enunciated philosophy of criminal sentencing and the reality of its application.

C-5 has three main components. First, it would repeal several MMPs, including a dozen in the Criminal Code for relatively less serious weapons offences, such as unauthorized possession or recklessly discharging a non-restricted firearm. (To be clear, all firearms offences are serious, but even among serious offences, there is a spectrum.)

The bill would also repeal all MMPs under the Controlled Drugs and Substances Act. This is significant, considering drug offences account for 75% of all admissions to federal custody for offences punishable by an MMP. If C-5 is adopted, judges could fully exercise their discretion and apply Gladue principles for sentencing Indigenous people in all drug cases.

Not that repealing MMPs precludes lengthy sentences. Judges could still impose the maximum sentence where circumstances warrant.

The second component of the bill would enhance the availability of conditional sentence orders (CSOs). For sentences of less than two years, and where public safety is not at risk, CSOs allow for community-based sentences with conditions such as house arrest, mandatory treatment, and weapons prohibitions. CSOs have been part of our criminal justice system since 1995, but their use was restricted in 2012.

According to UBC researcher Elspeth Kaiser-Derrick, the 2012 restrictions had significant impacts on Indigenous women. In a study of 44 Indigenous women who received CSOs, she found that 36 of them would be ineligible under the current regime. By undoing the 2012 changes, we can promote the well-being of Indigenous women offenders, holding them accountable for breaking the law without removing them from their communities, families, jobs and social supports. Also, by keeping mothers out of prison, we can help keep their kids out of the child welfare system.

Finally, C-5 would require police and prosecutors to consider alternatives to criminal charges for drug possession, such as taking no action, issuing a warning, or referring someone for treatment. This would essentially align the law with guidance issued by the Director of Public Prosecutions in 2020, and with a recent report by the Canadian Association of Chiefs of Police, which “endorse[d] alternatives to criminal sanctions for simple possession of illicit drugs.”

Too many people – especially Indigenous people – have been sucked into the quicksand of the criminal justice system because they are addicted to drugs or alcohol. If C-5 passes, police and prosecutors will have a positive obligation to try to keep them out of jail, and perhaps direct them to treatment or other community resources to prevent further negative interactions with the law.

Taken together, these measures would constitute real progress toward addressing systemic racism and the over-representation of Indigenous people in the provincial, territorial and federal prison systems. But, of course, they’re nowhere near enough. Investments into Indigenous-led, community-based, historic-trauma healing programs need to be made across Canada to address the underlying criminogenic factors that contribute to this over-representation.

There have been some encouraging recent developments on this front, such as an agreement between the B.C. First Nations Justice Council and the federal and provincial governments to support and expand Indigenous Justice Centres in that province. But we need to see exponential expansion of this type of initiative.

Further, we need more Indigenous-owned healing lodges (established under Section 81 of the Corrections and Conditional Release Act) across Canada, to ensure that Indigenous offenders who go to prison receive effective, culturally-based healing programs designed to address historic trauma (otherwise known as Gladue factors). Sections 81 and 84 remain under-utilized, even though their capacity to reduce recidivism and promote successful reintegration is well documented.

In short, it will take a muscular, sustained, multi-pronged effort to address the legacies of colonization and racism that have led to the tragic overrepresentation of Indigenous people in Canada’s criminal justice system. No single piece of legislation will solve the problem, but I look forward to the significant progress Bill C-5 will achieve.

And then we keep working.