Minister of Justice and Attorney General of Canada David Lametti speaks about repealing mandatory minimum sentences during a news conference, on Dec. 7, 2021, in Ottawa.Adrian Wyld/The Canadian Press
Canada’s Justice Minister is adamant that Liberal legislation will begin reversing the country’s disproportionate rate of Indigenous incarceration, but he acknowledges more needs to be done to address racial inequities in the justice system.
In an interview, Justice Minister David Lametti responded to recent criticism that the Liberal government has produced little in the way of policy response to the problem. The Globe reported earlier this month that Indigenous women now make up 50 per cent of the female population in federal prisons, even though just 4.9 per cent of women in Canada are Indigenous. For all Indigenous prisoners, men and women, the rate stands at 32 per cent.
Correctional Investigator Ivan Zinger, who released the figures, called the situation “shocking and shameful.” Lynne Groulx, CEO of the Native Women’s Association of Canada, said in response to Dr. Zinger’s numbers that the government had ignored the issue.
Mr. Lametti acknowledged that the “magnitude of the problem is tragic,” but he challenged the notion that the government has failed to act.
He said he expects rates of Indigenous imprisonment to decline once the government implements the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and passes Bill C-5, which proposes undoing aspects of the crime agenda passed under former prime minister Stephen Harper.
“We’re turning a big ship around,” Mr. Lametti said, “and I think it’s fair to say we’re doing it incrementally in order to bring the rest of Canadian society along.”
Bill C-5 would repeal 20 different mandatory minimum sentences, mostly for gun and drug crimes, and re-establish conditional sentences, such as house arrest, for some offences.
The Indigenous incarceration crisis demands a bolder response: Decarceration
Mandatory minimum sentences are legislated penalties that predetermine the least severe punishments for certain types of crime. Advocates for Indigenous and Black people accused of crimes have argued that these minimums unfairly target their clients. Such sentences limit the flexibility of judges to craft punishments according a person’s individual circumstances. There are currently 73 different mandatory minimums in Canadian law.
Between 2007 and 2012, the Harper government introduced a series of mandatory minimums despite warnings from lawyers and civil-rights groups that many violated the Charter of Rights and Freedoms.
Constitutional challenges have mounted over the past decade. Courts have struck down an array of mandatory minimum penalties, and many more face judicial scrutiny. As of last December, the Department of Justice was tracking 217 court challenges to mandatory minimums on constitutional grounds.
Mr. Lametti said Bill C-5 would remove mandatory minimums on a number of simple-possession drug offences, “which are often the cause of over-incarceration, particularly of Indigenous women.”
He added that the bill’s reintroduction of conditional sentences for certain crimes would also affect Indigenous incarceration rates.
Conditional sentences permit offenders to serve their time outside prison, and include options such as house arrest, treatment and counselling. The Harper government barred such sentences for many crimes in 2012.
“Bringing back conditional sentence orders is something that I have been told by criminal lawyers, particularly in Indigenous contexts, will have a real positive impact on keeping people out of jail,” Mr. Lametti said. “People who shouldn’t be in jail, people whose problems are health-related or mental-illness-related, addiction-related or social-related – this will keep them out of the criminal justice system.”
Advocates for Indigenous justice agree, but they say they want the Liberals to do more than simply roll back laws passed under the Harper Conservatives.
“While we are of course supportive of this bill, it must always be kept in mind that if it passes as written all it will do is partially restore Canadian criminal law to where it was in 2012,” Aboriginal Legal Services program director Jonathan Rudin told the House of Commons Standing Committee on Justice and Human Rights on Friday.
The bill, introduced in December, is up for debate at the committee before it heads back to the House for third reading.
Senator Kim Pate, a long-time advocate for the rights of imprisoned people, said the Liberal measures amount to “tinkering,” when much broader systemic change is needed.
“I’m interested in things like guaranteed livable income, and health care, and issues around clean water – the things that will actually create more substantive equality rather than more tinkering with the criminal legal system, which seems to just make everybody feel better about putting more people in prison, particularly Indigenous women.”
She added that she would prefer the bill eliminate all mandatory minimums.
When asked about the fact that C-5 would leave many minimums in place, Mr. Lametti said, “Well, that’s a fair criticism and I’m certainly sensitive to it.”
Mr. Lametti is also in charge of creating an action plan for the government’s implementation of UNDRIP, an international human rights agreement outlining minimum standards for the protection of Indigenous rights around the world.
“I think it’s going to be transformational in the way the Charter was transformational,” he said.
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Patrick White