Some mandatory minimum sentences repealed by Ottawa

• JOY SPEARCHIEF-MORRIS

Toronto Star: When the Liberal government repealed some mandatory minimum prison sentences in 2022, it billed those changes, in part, as a response to the overrepresentation of marginalized communities — including Indigenous people — in Canadian prisons.

However, experts say that hasn’t done anything to reduce the number of incarcerated Indigenous people, which grew under the previous Conservative government and has continued to rise during Justin Trudeau’s tenure as prime minister.

Instead, advocates say what’s needed is a focus on healing in Indigenous communities — both in and outside of the criminal justice system — that recognizes intergenerational impacts of trauma that Indigenous people continue to live with.

Despite making up only five per cent of Canada’s population, Indigenous people now account for 33 per cent of federal inmates. The numbers are even more stark for incarcerated women, of whom Indigenous women make up 50 per cent, and incarcerated youth, 48 per cent of whom are Indigenous.

According to Statistics Canada and the Office of the Correctional Investigator, the Indigenous population in federal prisons was about 2,500 when Stephen Harper became prime minister in 2006. By the end of his term in 2015, there were about 3,700 Indigenous inmates, an increase of about 50 per cent.

Since then, the number has risen by another 20 per cent to about 4,500.

In 2015, the Truth and Reconciliation Commission called for changes to the Criminal Code to allow judges to depart from mandatory minimum sentences — which impose set sentences for certain convictions and remove judges’ discretion to impose lesser penalties. Seven years later, Trudeau’s government repealed some minimum sentences that the Harper government had imposed — specifically, for drug, firearms and tobacco-related offences.

Critics charge that the strategy has failed — although they cite different reasons.

Sen. Kim Pate noted that mandatory sentences were not eliminated for other offences, which she said Indigenous people are disproportionately likely to be charged with, such as those involving violence and the use of weapons — particularly Indigenous women.

The government’s action, Pate said, “has not resulted in a reduction in the number of Indigenous prisoners because the ones they chose to repeal aren’t the ones that result in people ending up in longer-term incarceration.”

The Ministry of Justice did not respond directly to the Star’s questions on the lack of impact of the mandatory minimum repeals on Indigenous people, but spokesperson Chantalle Aubertin said it is making efforts to develop Indigenous and Black justice strategies.

Dr. Ivan Zinger is Canada’s Correctional Investigator — the federal government’s independent ombudsman for the Correctional Service of Canada. He agrees that mandatory minimums can prevent a judge from tailoring sentences to an individual’s circumstances.

However, Zinger also notes the total population of inmates in federal prison today is about the same as it was in 2006.

Between 2006 and 2015, the federal prison population rose from about 13,500 inmates to about 14,700. Early releases during the COVID-19 pandemic meant that the number currently stands at about 13,700 — virtually unchanged in almost two decades.

Zinger believes there was no massive spike in the number of federal inmates because Harper’s mandatory minimums simply codified the sentences judges were already giving for serious crimes.

“I think this is why we never saw this, this massive amount of incarceration, because judges were already providing about the same sentences when those mandatories were introduced,” Zinger said.

Despite the current political debate about mandatory minimum sentences — Conservative Leader Pierre Poilievre has criticized the Trudeau government for removing some and promises to expand them — Zinger doesn’t believe they greatly affect the number of federal inmates.

“Removing them I doubt would have a huge impact by decreasing the prison population and specifically the Indigenous admission into penitentiaries,” he said.

The ongoing impacts of colonialism, residential schools and intergenerational trauma and the impact of the child welfare system — including the Sixties Scoop — have been cited by advocates as far more likely to be the root causes of the overrepresentation of Indigenous Peoples in prisons.

In February, Zinger told the House of Commons standing committee on Indigenous and northern affairs that focusing on anti-racism initiatives, education, housing, health care and employment for Indigenous people could reduce the trend in Indigenous incarcerations.

But for that to happen, Pate said Indigenous leaders need to have control over investments in their communities.

“What we need is for there to be investments of resources into housing, health care and support in community so that people can, one, be prevented from ending up in prison, and secondly, with those services be supported to be released into the community,” she said.

Carol McBride, president of the Native Women’s Association of Canada and a former chief, agrees there needs to be a focus on lifting up communities.

“One of the priorities we had was making our children feel good and preparing them to go on the outside and keeping that self-esteem and being proud of who they are,” McBride said. “I think that’s where we have to start, is working with these young people and letting them know that they’re loved and are supported and they belong.”