The Supreme Court focuses on the “mass” of indigenous prisons

Nearly half of all women in Canada’s federal prisons are natives.

That is 10 times their share of the population in general.

Looking at men and women together, indigenous peoples account for about a third of those in federal custody.

These facts were included in the latest report on indigenous prisons by Ivan Zinger, Canada’s detective investigator, who said the country was approaching “historic and unscrupulous levels of indigenous concentrations in federal prisons.”

Many argue that the number of indigenous prisons in Canada is already unscrupulous, and they have increased, despite Prime Minister Justin Trudeau’s commitment to reduce the over-representation of indigenous peoples in the criminal justice system.

“It’s a national injustice,” said Pam Hrick, executive director of the Women’s Legal Education and Action Fund. “It’s not just over-imprisonment, I think it goes so far as to call it mass imprisonment, and it’s directly linked to systemic discrimination and the effects of colonialism.”

On Wednesday, the Canadian Supreme Court will hear a case that spokesmen say if approved, it will help reduce the number of indigenous peoples behind bars.

The case concerns a First Nations woman named Cheyenne Sharma, a single mother and survivor of an upper secondary school who in 2015, when she was 20 years old, was arrested at Toronto Pearson Airport after arriving from Suriname with a suitcase lined with almost two kilos of cocaine.

Sharma, who had been subjected to significant abuse in her life and had no criminal record, was behind with her rent and facing exposure with her daughter. She agreed to deliver the suitcase for $ 20,000.

She confessed shortly after she was arrested and later pleaded guilty to importing cocaine, an offense which, due to sentencing laws passed by Stephen Harper’s government, resulted in a mandatory minimum sentence of two years in prison.

But the judge ruled it would be “grossly disproportionate” in Sharma’s case, and he dropped the mandatory minimum for importing more than a kilo of cocaine, saying it violated the charter’s right not to be subjected to cruel and unusual punishment. . The Crown did not appeal.

Due to the same laws from the Harper era, the judge in Sharma’s case was also prevented from considering a conditional sentence – one served in society without imprisonment.

Sharma’s lawyer argued that a conditional sentence would be appropriate in her case, given the Gladue principles, which require judges to consider the unique circumstances of indigenous peoples and look for alternatives to prison. Sharma’s lawyer argued that the limitation of a conditional sentence was tantamount to racial discrimination.

The judge disagreed and gave Sharma 18 months in prison, which she served.

The Ontario Court of Appeals later overturned that ruling, saying that lack of access to a conditional sentence “deprived the court of an important means of redressing systemic discrimination” against indigenous peoples, which “had the effect of reinforcing, perpetuating or exacerbating the disadvantage” for Indigenous Offenders .

The court ruled that the limitation of conditional sentences was in violation of the Charter and that Sharma should have avoided jail time.

The federal government appealed this decision to the Supreme Court, arguing that conditional sentences were never intended for serious crimes such as importing drugs, and that parliament, not the courts, should decide when conditional sentences should apply.

While it may seem technical, those struggling to remove the restriction of conditional sentences say it is important to give judges more freedom in sentencing.

“It’s a way to combat the mass imprisonment of indigenous women,” said Hrick, whose organization is one of 20 groups intervening in the case. She added that removing restrictions on conditional sentences is in fact one of the 94 calls for action from the Truth and Reconciliation Commission to Canada’s legacy of housing schools.

“So identifying the ways in which colonialism has disproportionately affected and improved the way of life of indigenous peoples, and taking steps to address these issues and listening to indigenous societies in relation to these issues is an important step toward reconciliation.”

Increased access to conditional sentences will not in itself solve the problem of high rates of indigenous prisons, said Jonathan Rudin, program director for Aboriginal Legal Services, another intervener.

“But every barrier that is removed allows judges to do what they think is right.”

In December, the federal government reintroduced legislation – which was not passed in the previous session of parliament – that would abolish mandatory minimum sentences for all drug crimes and certain gun crimes. Bill C-5 will also allow for greater use of conditional sentences. Justice Minister David Lametti has also reiterated the government’s commitment to address systemic discrimination and the over-representation of indigenous peoples, as well as racist Canadians, in the criminal justice system.

Despite these commitments, Rudin said the Supreme Court ruling in Sharma is still important because there is no guarantee that the Liberals’ latest bill will be passed, and even if it does, a new government could just as easily repeal it. . Meanwhile, the number of native prisons continues to rise.

“Every day the law is not changed, indigenous people go to jail who do not have to go to jail.”