Today is something of an auspicious day.  US elections aside and all that means for social policy in the States, today is the date that the mandatory minimum sentences under the Controlled Drugs and Substances Act come into force in Canada.  Bundled as part of the Harper government's Omnibus Crime Bill approved a year ago, these latest provisions coming into force will mandate that judges impose prison sentences on offenders convicted of certain crimes.  But, despite the rhetoric from the Conservatives that the target of this legislation is high-level traffickers and drug "kingpins", the mandatory minimums are more likely to capture small-time drug users, people with addictions or mental health issues, and aboriginal people.

In today's National Post, UVic law student and former Pivot intern, Laura Drake, and I parse out some of the reasons why the Safe Streets and Communities Act is bad for aboriginal people and people with disabilities who will be caught up in the net this legislation casts.  The Supreme Court of Canada has repeatedly acknowledged the disproportionate level that aboriginal people are caught up in the criminal justice system and that this fact should be considered by judges when sentencing.  This new legislation, however, removes that discretion from judges and is likely unconstitutional because of that.

It is a fact that aboriginal people, as a group, are disproportionately represented in our prison system.  Although the 2006 Census counted aboriginal people as three per cent of Canada’s population, that year they made up 18.5 per cent of the total federal offender population. The numbers are just as bad, if not worse, in provincial jails. In 2008, 81 per cent of people in Saskatchewan prisons were aboriginal people, despite making up only 11 per cent of that province’s population, according to Statistics Canada. The ethnicity of people convicted of the drug crimes for which there are now mandatory minimums is not tracked, but it’s reasonable to assume aboriginal people are similarly over-represented for those offences.

For people with mental health issues, the numbers are also disturbing.  In 2006, more than ten per cent of male offenders had a psychiatric diagnosis on admission to the federal prison system. This represented an increase of 71 per cent over the previous nine years. During the same nine-year period, the number of female offenders diagnosed with a psychiatric disorder rose by 61% to one-out-of-five women.   The presence of psychiatric disorder in men incarcerated in federal prison is an alarming 16 times higher than its presence in the community.

As recognized by the Supreme Court of Canada this year, the sentencing of aboriginal offenders must recognize “the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for aboriginal peoples.” It is a reasonable position, explicit in the Criminal Code and recognized as necessary by the highest court in Canada, but completely absent from the new mandatory minimum sentencing provisions of the legislation.

One of the most troubling things about the new sentencing regime is that it’s impossible to say that the Conservatives were simply ignorant of the discriminatory impacts the mandatory minimums will have on marginalized groups.  In fact, the federal government expressly rejected provisions discussed in 2009 that would have lessened the discriminatory impact of the new sentences on aboriginal people.

When the Conservatives previously proposed mandatory minimums to Parliament in 2009, they came in a standalone bill and not part of an omnibus package. After scrutiny of the bill, the Senate Committee on Legal and Constitutional Affairs introduced amendments to make the regime fairer.

One of their key changes to the bill was to introduce a clause giving sentencing judges the flexibility to exempt an aboriginal offender from one of the new mandatory minimum sentences if the sentence would be excessively harsh because of the offender’s circumstances and another reasonable sanction would suffice. It was not an automatic exemption from the minimum for aboriginal offenders -- it simply afforded a judge the ability, if the situation warranted, to give a sentence below the mandatory minimum. This proposed change was tied directly to the crisis of over-representation of aboriginal people in Canada’s jails.

There are many people who would say this isn’t truly a problem -- that anyone who commits a crime, regardless of race, should go to jail if that’s what the situation warrants. The problem with this view, though, is that it ignores the systemic racism to which aboriginal people are subjected on a daily basis. Aboriginal people are more likely to be stopped by police, more likely to be charged with an offence, more likely to get jail and more likely to be sentenced to custody than non-aboriginal people. Across the board, the system works to put aboriginal people in jail where non-aboriginal people with the exact same culpability are often given a break even before they are in front of a judge.

The other problem with this view is that it misapprehends the purpose of criminal sentencing. The fundamental principle of sentencing in Canada is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This year, the Supreme Court of Canada affirmed that in order to properly perform this core responsibility of sentencing in relation to Aboriginal offenders, courts must recognize “the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.”

If the point of sentencing is to determine what an offender owes in terms of his or her debt to society, for an aboriginal offender this can’t truly be calculated without first dealing with the debt Canada’s non-Aboriginal society owes them. A sentencing judge cannot properly determine the responsibility of an aboriginal offender without heed to this crucial context -- indeed, it is mandated in the Criminal Code.

But, when the new legislation comes into effect today, this safety valve of judicial discretion will be gone.  And, we are worse off for that.