OTTAWA -- Legal experts fear the Harper government's push for mandatory minimum sentences will unfairly target aboriginals.
"Aboriginal people are being locked up like it's going out of style," said Manitoba lawyer Brad Regehr, the outgoing chairman of the Canadian Bar Association's national aboriginal law section.
"This is simply going to impact them further. It's not rocket science."
The Canadian Bar Association wants the federal government to ensure upcoming legislation on mandatory minimum sentences will not override a 1999 Supreme Court decision directing judges to consider sentencing alternatives for aboriginals. The Gladue decision said judges should take into account the poor social and economic conditions facing aboriginals as well as the devastating effects of residential schools on aboriginal families.
In addition, Canada passed an amendment to the Criminal Code in 1995 asking judges to consider all sanctions other than imprisonment for aboriginal offenders.
Justice Minister Rob Nicholson is expected to introduce an omnibus crime bill this fall that pulls together nearly a dozen previous justice and public safety bills that did not pass before the spring election. They include bills that will introduce mandatory minimum sentences for everything from more minor drug offences -- such as growing a few pot plants -- to violent sex offences and for being involved in organized crime.
At its annual meeting in Halifax this week, the bar association passed a resolution asking Nicholson to ensure the bill leaves room for judges to consider an aboriginal offender's background.
Members also questioned Nicholson. Regehr said he asked Nicholson flat out how he plans to institute mandatory minimum sentences and adhere to the Supreme Court directive to consider aboriginal offenders' special circumstances.
"We haven't gotten an answer," Regehr said.
At the meeting, Nicholson flatly rejected another bar association resolution asking him to leave a "safety valve" for judges to ignore mandatory minimums when they would be wholly inappropriate, such as for offenders who have a mental illness.
On Thursday, a spokeswoman for Nicholson said Parliament is expected to draft and enact laws that reflect the values of the citizens who elected them.
"It is the role of the legislator to give guidance to the judiciary on maximum penalties, as well as on minimum penalties," Pamela Stephens said.
"For certain offences, our government firmly believes that a minimum period of incarceration is justified."
She said there are means, through the Aboriginal Justice Strategy, to help reduce and prevent crime in aboriginal communities.
During the election, the Conservatives pledged to introduce the omnibus crime bill and get it passed within 100 sitting days in Parliament.
The Supreme Court decision and the change to the Criminal Code were aimed at addressing the over-representation of aboriginal offenders in Canada's penal institutions and the historical injustices they have faced.
Nationally, 20 per cent of inmates in federal prisons are aboriginal. In Manitoba, 70 per cent of the inmates in provincial facilities and half of the inmates in the two federal institutions are aboriginal.
Yet, aboriginals make up only 15 per cent of the population in Manitoba and about four per cent nationally.
Aboriginal offenders also appear to be sent to prison more often than non-aboriginals. In Manitoba, they make up more than two-thirds of offenders in custody but less than half of those serving conditional sentences.
Howard Sapers, correctional investigator of Canada, said mandatory minimum sentences will eliminate much of the use of judicial discretion.
Winnipeg criminal defence lawyer Josh Weinstein said the mandatory minimums will have a disproportionate impact on aboriginal offenders and likely drive up the rate of incarceration of aboriginal offenders.
In many cases a judge uses discretion to sentence an offender to a community sentence, with requirements for restorative justice programming, aboriginal sentencing circles, healing ceremonies or other programs that force an offender to make peace with his or her community, Weinstein said.
But, Weinstein said, if the judge has to send someone to jail because of a mandatory minimum, the use of alternative justice programs will likely end.
"If it could be demonstrated that Canada is safer because of mandatory minimums then they might be appropriate ,but that has never been demonstrated," he said.
Alternatives to jail
-- In 1999, the Supreme Court of Canada issued the landmark Gladue ruling. It called on judges to take into account the past when passing sentence on aboriginal offenders. Critics dismiss it a "get out of jail" card but the country's highest court disagreed. It said aboriginal people were over represented in prisons.
-- In 1991, the Aboriginal Justice Inquiry in Manitoba gave the criminal justice system a failing grade:
"Historically, the criminal justice system has discriminated against aboriginal peoples by providing legal sanction for their oppression. The oppression of previous generations forced aboriginal peoples into the current state of social and economic distress. Now a seemingly neutral system discriminates against current generations of aboriginal peoples by applying laws which have an adverse impact on people of low socio-economic status. This is no less racial discrimination; it is merely laundered racial discrimination."
-- Numerous studies and the Aboriginal Justice Inquiry have all pointed to alternatives to incarceration for long-term success at rehabilitating aboriginal offenders and addressing the problems that likely led to them breaking the law. Alternative justice, such as sentencing circles and elder counselling, have shown some success in Manitoba. Five-hundred offenders went through the Manitoba Keewatinowi Okimakanak alternative justice program between 2002 and 2007. They were less than half as likely to reoffend within the four years they were followed than offenders who did not participate. The program included sentencing circles, elder counselling and addictions rehabilitation.
John Hutton, executive director of the John Howard Society of Manitoba, said the association's Restorative Resolutions program has better success than jail at rehabilitating offenders: "Our recidivism rate is 17 per cent, half that of someone on probation. For someone who's incarcerated, the recidivism rate is 45 per cent."
He said mandatory minimum sentences turn the law into a one-size-fits-all, regardless of the circumstances.
Harsher sentences also lead to higher incarceration costs, overcrowded prisons and higher crime rates. "What the government is doing is replacing the judgment of judges with that of politicians who are completely removed from the facts of the case."