A note from the Supreme Court of Canada

At the Supreme Court of Canada.
That's me next to David Fai (centre), counsel for Joseph Lloyd, and Maia Tsurumi (right), Pivot's pro bono counsel


The Supreme Court of Canada. I’ve only just caught my breath.

On Wednesday I appeared before the Supreme Court alongside our pro bono counsel Maia Tsurumi on Pivot’s intervention against mandatory minimum sentencing in Canada.

Along with the Union of BC Indian Chiefs (UBCIC), we were intervening in the case of R v Lloyd. Mr. Lloyd was charged and convicted for possession of a small amount of illicit substances for the purposes of trafficking in Vancouver’s Downtown Eastside. These were the same drugs he was addicted to. Mandatory sentencing meant that he was fated to at least the one-year minimum jail term for the crime.
It is a fundamental principle of Canadian criminal law that the punishment judges give people must fit the crime. This principle is called proportionality. But, as in Mr. Lloyd’s case, mandatory minimum sentences prevent this.
One-size-fits-all punishment is out-of-step with Canadian penal policy and out-of-step with Canadian values. Worse, it can lead to sentences that violate the Charter rights of marginalized people.
When I found out that we received leave to make oral submissions, I got that feeling that I’m sure every social justice lawyer gets before a big hearing: you feel like maybe the struggle is too great, that everything is against us, and where, exactly, do I get the nerve packing my bags in the Downtown Eastside and going to tell the Supreme Court justices what to think about fairness and equality?
But then I got a note from a comrade from the trade union movement. I told him that I was nervous and he said: “But you have righteousness. You will prevail.”
And so, Maia and I went to Ottawa to shine a light on the impact tough-on-crime policies have on vulnerable offenders. We said for indigenous people, for women, and for people who come before the court as a result of their addiction, mandatory minimum sentences can lead to cruel and unusual punishment. They continue the sad legacy of colonialism; they separate mothers from families; and they criminalize people for their addiction.
We explained how in our community, the bright line between drug users and dealers was not so simple, because many people who are struggling with addiction are paid in drugs for their work as low level drug trade workers.
We said that women, who are primary caregivers of children, often have their children apprehended when they go to jail when, before the Conservatives brought in a host of new mandatory minimums, these people were most likely to get shorter sentences, sometimes serving them in the community.
In our submission to the Supreme Court, we pointed out that indigenous people are overrepresented in Canada’s jails. One in four prisoners is indigenous. If we look at only female inmates, one in three is indigenous.
The government has known this for a long time. Twenty years ago it introduced a provision into the Criminal Code in the hopes of addressing the problem. Section 718.2(e), or the “Gladue Factors” has been considered in two landmark Supreme Court of Canada cases- first the 1999 Case R v Gladue, and more recently in 2012 R v Ippeelee. These cases together say that sentencing judges must consider the impact of colonialism on indigenous people when they are sentenced for a crime.
We reminded the court of the too-frequent experience of indigenous people with jail, of Parliament’s efforts to address it, and of the court’s important decisions. Then we pointed out that when there is a mandatory minimum sentence in place, it is actually impossible for sentencing judge to apply the Gladue factors.
We said the mandatory minimum sentence conscripted judges into frustrating what efforts at reconciliation are possible within the criminal system. And for people from remote communities, compulsory jail means people are transported long distances from their home communities, so people cannot visit them. This replicates the intentional pattern of family disruption that has long been a feature of Canada’s shameful policy towards indigenous people. 
Striking down these harmful provisions will free judges to do their job of being expert front-line justice workers and crafting fit sentenced. It will soften some of the harm the criminal justice system has had on my neighbours in the Downtown Eastside and in communities across the country.
I’m hoping they heard us. I’m hoping my optimistic labour friend is right and that we will prevail. But as I close this file and wait for the decision, I know our work is far from over.