National Post / Scott Bernstein & Laura Drake / November 6, 2012 —
Touted as a blow to organized drug crime, Stephen Harper’s Safe Streets and Communities Act, passed in the spring, introduced a convoluted scheme of mandatory minimum sentences into the Controlled Drugs and Substances Act, the legislation that covers all crimes related to illicit drug use, production and trafficking in Canada.
With this new sentencing regime coming into force this week, Canada is taking yet another step backward from being the just and equal society guaranteed by the Charter of Rights and Freedoms.
The Conservative government peddled this legislation as a necessary next step in the “war on drugs.” They claimed, then and now, that it specifically targets high-level traffickers. It does nothing of the sort.
In fact, it is a poorly worded legislative scheme that will have the most far-reaching consequences for marginalized drug users and people with disabilities. What is more, these changes will cost Canadian taxpayers millions of dollars in court and prison costs while doing virtually nothing to reduce drug crime.
According to Canada’s Correctional Investigator, nearly all the population growth in Canada’s prisons over the last decade has been drawn from aboriginal people, visible minorities, people struggling with addictions, and the mentally ill. In many cases, offenders are members of more than one of these groups. The new sentencing regime for our drug laws will incarcerate even more people from these groups without any regard for their already-disadvantaged position in society.
Aboriginals, as a group, long have been disproportionately represented in our prison system. Although the 2006 Census counted aboriginals as 3% of Canada’s population, that year they made up 18.5% of the total federal offender population. The numbers are just as bad, if not worse, in provincial jails.
For people with mental health issues, the numbers are also disturbing. In 2006, more than 10% of male offenders and 20% of female offenders had a psychiatric diagnosis on admission to the federal prison system.
When mandatory minimums came before Parliament for consideration in 2009, the Senate recognized the disproportional impact of the justice system on marginalized groups and passed the bill with a clause allowing a sentencing judge discretion in the case of aboriginal offenders. That version of the bill died on the order paper when Parliament was prorogued in December 2009. When the bill was resurrected as a section of the Safe Streets and Communities Act in September 2011, the new mandatory minimums for drug crimes were still there, but the discretion for judges sentencing aboriginal offenders was gone.
These sensible amendments would have given judges the flexibility to exempt an aboriginal offender from a mandatory minimum sentence if the sentence would be excessively harsh because of the offender’s circumstances and another reasonable sanction would suffice. It wasn’t an automatic reduction of a sentence, but allowed a judge to put the offender’s circumstances into the context of the offence.
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.
That the Conservative government expressly removed the one safety valve in the Act that would have taken account of systemic discrimination of aboriginal people, and failed to address impacts to other marginalized groups, flies in the face of Canadians’ belief that their country stands for equality, justice and fairness under the law.
Scott Bernstein is a lawyer and heads up Pivot Legal Society’s Health and Drug Policy campaign. Laura Drake is a third-year law student at the University of Victoria.