The Toronto Star (Windspeaker.com) – The Supreme Court of Canada will be weighing the arguments it heard March 23 to determine whether the inability to make conditional sentencing available in some cases amounts to systemic racism for Indigenous offenders, infringing on their Charter rights.
In 2012, the Criminal Code was amended through the Safe Streets and Communities Act to add mandatory minimum incarceration terms for certain offences. Mandatory minimums do not allow for conditional sentences. The nine justices heard arguments from legal counsels for the federal government and provinces of British Columbia and Saskatchewan about why restrictions on conditional sentences do not infringe on the Charter rights of Indigenous peoples.
Interveners representing a number of organizations, including Indigenous and women’s groups, argued that the inability of trial judges to fully consider Gladue reports on all charges and thus the inability to use all forms of sentencing – including conditional sentencing – was a restriction that impacted on those Constitutional rights.
Gladue principles, implemented through Gladue reports, were introduced in the Criminal Code in 1996 in response to the over-representation of Indigenous people in the justice system. When imposing sentences, judges are required to take into consideration the personal impact colonialism has had on Indigenous offenders, which is outlined in the reports. But Safe Streets made it difficult for judges to implement what they learn through Gladue reports for sentencing and therefore limited the court’s access to remedy the over-incarceration of Indigenous Canadians, said Eva Tache-Green, counsel with Nunavut Legal Aid, first time intervener at the Supreme Court.
By the time the Ontario Court of Appeal (ONCA) heard Sharma’s appeal and ruled that conditional sentence restrictions infringed upon Sharma’s Charter rights, Sharma had completed her incarceration. The majority of judges said that Sharma should have received an 18-month conditional sentence.
It is the ONCA’s ruling (one judge dissented) that is being argued at the Supreme Court.
Legal counsel for the Federation of Indigenous Sovereign Nations (Saskatchewan) and the Assembly of Manitoba Chiefs argued that Indigenous people had their own systems of justice well before colonial courts took over. They said Gladue reports and conditional sentences were an important part of a Canadian system of justice that continued to ignore and undermine First Nations laws.
“While the Assembly of Manitoba Chiefs does not wish to conflate restorative justice with First Nations legal responses to harm or to suggest that First Nations legal responses to crime must only result in a conditional sentence, the Assembly of Manitoba Chiefs submits that conditional sentences are a very important means of implementing First Nations laws and perspectives as they may assist in restoring peace and equilibrium,” said legal counsel Carly Fox.
“Without this particular tool of restorative justice to promote healing and reintegration in a culturally appropriate way, the justice system will continue to fail Indigenous people. There will be a continuing gross incarceration of Indigenous people in Canadian jails and correctional centres,” said legal counsel Eleanore Sunchild.
“FSIN submits that this honourable court has a very real opportunity here to protect and strengthen the ability of sentencing judges to achieve restorative justice because conditional sentence are one of the only alternatives to incarceration to combat high rates of Indigenous people ending up in facilities.”
The Supreme Court will deliver its decision at a later unspecified date.
Windspeaker.com