It is impossible to know how hard the federal government is working to address Indigenous over-representation in Canada’s federal prisons, but it is clear it is not working very effectively. Indigenous people now make up 30 percent of the inmates in federal prisons, the troubling figure newly announced by Canada’s Correctional Investigator, Dr. Ivan Zinger, who acts as an ombudsman for federally sentenced offenders. The investigator provides oversight of the Correctional Service of Canada. He says if the trend continues, three years from now, fully one-third of all inmates in federal prisons will be Indigenous. He calls the trend “disturbing and entrenched.”
Jordan Crosby, director of parliamentary affairs for the minister of public safety, has reacted by calling it an “unacceptable situation that we are working very hard to address.”
It is important to acknowledge that the causes of Indigenous over-representation are complex. They stem from the impacts of previous government policies such as the residential school system and are compounded by the current challenges that many Indigenous people face in accessing basic necessities such as clean water and a decent education. While progress is being made on those fronts, it is slow.
There are things, however, that the federal government could do right away that would address the specific concerns of the correctional investigator and reduce the number of Indigenous people in federal prisons.
For example, the government could help fund Gladue reports for Indigenous offenders. The reports offer a fuller picture of a person’s background, with relevant information and alternatives to traditional sentencing. Courts have found Gladue reports very helpful when sentencing Indigenous people, but there are still some regions of the country where they are not available. Given that the federal government helps fund the Indigenous courtworker program and the Indigenous Justice Program across the country, the reluctance to provide more funding for Gladue reports makes little sense.
The most obvious and immediate step is to give judges the option to move away from a mandatory minimum sentence when to do so would result in a just sentence. Many countries that have mandatory minimums, such as Great Britain and Australia, allow judges to depart from them in particular circumstances. Canada’s Criminal Code is littered with mandatory minimums that require people convicted of particular offences to serve sentences of two years or more in a federal penitentiary. For sentences under two years, offenders serve their time in provincial or territorial jails. Mandatory minimums are direct pipelines to the penitentiary. And there are two important differences between serving time in a federal prison and a provincial or territorial jail.
First, the penitentiary is a breeding ground for further criminal involvement. In many penitentiaries, particularly out west, the penitentiary is a gang recruitment centre. An Indigenous offender who goes into the pen without gang affiliation will likely come out a full-fledged gang member. That hardly contributes to community safety.
Second, with a provincial or territorial sentence, there are options that allow the offender to serve the time in the community under a conditional sentence. Conditional sentences can come with strict conditions – house arrest, for example – but they also allow people who are taking steps to move in a more positive direction to keep on that road. Many conditional sentences require the person to continue their participation in treatment programs – programs that are much more effective than those available in jail. And that does lead to community safety. Conditional sentences, however, are only available if the sentence is under two years and there is no mandatory minimum attached to it.
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The Truth and Reconciliation Commission in its calls to action has specifically called on the federal government to allow judges to depart from mandatory minimums and to take away restrictions on the use of conditional sentences. Prime Minister Trudeau promised during his 2015 election campaign to implement all the recommendations of the TRC that fall within the federal government’s powers, but his government has not addressed the issue of mandatory minimums at all.
The lack of movement by the government on this issue is puzzling. Courts are striking down mandatory minimums with increasing frequency, as with this case, for example, and this case. But leaving this issue to the courts is not the answer. For one thing, a court can only strike down the particular mandatory minimum sentence that is being challenged. Also, a decision of a court in one province is not binding on a court in another province or territory. Unless a mandatory minimum is struck down by the Supreme Court of Canada, that law will remain in force in some provinces.
Finally, challenging a mandatory minimum sentence can take a long time. I know of one instance where it took more than four years from first court appearance to a decision by the Supreme Court of Canada to strike down a mandatory victim fine surcharge. We know this all too well because we at Aboriginal Legal Services were part of that challenge, and we have been part of other mandatory minimum challenges as well.
This is no way to make public policy.
If the government is serious about reconciliation, serious about responding to the calls to action from the TRC, it must make it a priority to introduce legislation as soon as possible to give judges the ability to depart from mandatory minimum sentences when the circumstances dictate that this is the just response. If it continues to do nothing, we can expect another news release from the Office of Correctional Investigator in a few years telling us that his dire predictions have come true.
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