Abstract

Excerpted From: Sophie Vaisman, Rectifying the Over-Incarceration of Indigenous Women: A Charter Approach, 45 National Journal of Constitutional Law 1 (June 2024) (122 Footnotes) (Full Document Requested)

Indigenous women experience constant, systemic injustices in their interactions with the criminal legal system. The injustices Indigenous women encounter mirror the stereotypes and discrimination they face in their daily lives in Canadian society. In recent years, the Courts and legislature have made attempts to lessen the issues Indigenous women face in our carceral system, but these changes on paper have not made quantifiable differences in Indigenous womens' experiences. In a memo to the Senate Committee on Legal and Constitutional Affairs, the Honourable Marion Buller asked whether it is possible that mandatory minimum sentences discriminate against Indigenous People, since their individual circumstances are not factored during sentencing. This possibility runs contrary to the dictates of s. 718.2(e) of the Criminal Code, which requires sentencing judges to consider all available sanctions for Indigenous individuals. With mandatory minimum sentences, sentencing judges are not able to fulfill the requirements under s. 718.2(e), as they cannot legally consider all available sanctions. In this paper, I will examine the situation of Indigenous women in the criminal legal system, and evaluate how the current sentencing provisions could be improved by a legislative amendment.

The amendment I explore here would allow and require sentencing judges to apply the considerations under s. 718.2(e) before any other offence-embedded sentencing provisions--including mandatory minimums. By this I mean that judges would consider s. 718.2(e) before applying provisions requiring specific lengths of incarceration or type of sentence, including any penalty that might otherwise be considered a mandatory minimum. This suggested amendment brings the application of s. 718.2(e) more in line with the Charter, and furthers the goals of reconciliation and equality. The Truth and Reconciliation Commission suggested a similar legislative change to the Criminal Code, at call to action 32. This call to action informs this paper.

The Supreme Court of Canada is unlikely to suggest a specific solution for the government to take, but it is within their power to do so. If judges were able to consider s. 718.2(e) prior to any other sentencing considerations--including mandatory minimums-- their decisions would be more closely in line with Charter values, and would help lessen the systemic inequality faced by Indigenous women. This type of legislative amendment is called a legislative exemption clause, and these types of clauses exist in other contexts already. The Supreme Court of Canada has also advocated for this solution, most notably in R. v. Lloyd. These clauses generally allow sentencing judges to depart from mandatory minimums where imposing such a sentence would be unconstitutional. Since these types of clauses are created in legislation, they do not interfere with the division of powers.

One question might be: why not simply advocate for the erasure of mandatory minimum sentences completely? First, the Supreme Court of Canada has struck down some mandatory minimums, but has also decided not to do so. This slow process of test trials is admirable, but the issue of over-incarceration of Indigenous women is simply too dire to wait for slow, inching progress from the courts. Secondly, mandatory minimum sentences are the most extreme, but not the only constraint on the use of s. 718.2(e). Suggesting the legislation of a primary consideration of s. 718.2(e) addresses all provisions which impose lengths or types of sentences.

This topic is wide-ranging, and due to its social justice orientation, there are a lot of fascinating topics to explore. Unfortunately, I will not be able to cover all of them. I am focusing my paper on a section 7 Charter analysis. I also believe that someone could make this claim under section 15 or even 28 of the Charter with very similar challenges, hurdles, and successes. The foundation of systemic discrimination against Indigenous women is vast, and could include a study on policing, court, and correctional practices. For the purposes of this paper, I start with the premise that judges take all sentencing principles into account, including the preference against incarceration. Although practice reveals that this preferred practice is not the case, it is outside the scope of this paper to fully discuss all the individual and system biases and discrimination that result in Indigenous women being vastly over-represented and the fastest-growing prison population in Canada. Also important is the potential for positive obligations under the Charter, which I only touch on briefly.

Before I begin, I must acknowledge the legal presumption that while the courts can signal disagreement or concerns with the impact of legislative decisions, the courts are generally expected to give deference to the government's will. In Gosselin, however, Justice L'Heureux-Dubé noted that the courts do sometimes help the government determine whether social programs are necessary, when dealing with social matters. Given this reasoning, the court could indicate that an amendment to the Criminal Code is necessary for Charter and underlying social reasons, without breaching the sanctity of deference. It would then be up to the federal government to make the changes, in the way Parliament chooses.

[. . .]

Based on section 7 Charter arguments, I have laid out the types of claims available to ensure the correct prioritizing of s. 718.2(e). While I believe in light of the SCC decision in Sharma it might be difficult to succeed on this case, the appointment of an Indigenous woman to the Court and the inception and proper taking-up of the United Nations Declaration on the Rights of Indigenous Peoples might provide the necessary changes to enable a new reality. Even given the court's reluctance to accept new burdens on behalf of the government, the strong legal arguments in favour of requiring s. 718.2(e) primacy provides hope for these important arguments.

Between life, liberty and security of the person, the issue of the over-incarceration of Indigenous women falls best under the right to liberty. Incarceration is a destruction of liberty. Arguing the right to life has been violated is also possible, since the evidence exists to support social and physical death resulting from time in prison, both for the incarcerated individual and their community.

By prioritizing s. 718.2(e), sentencing judges would have the power to truly take historic and ongoing individual and systemic discrimination, violence, and trauma against Indigenous women into account. With these factors at play, fewer Indigenous women will be incarcerated simply as a result of stereotypes, biases, and trauma responses. Section 718.2(e) was introduced to try and ensure that the sentencing of Indigenous Peoples was more equitable, and I suggest it is time for this sort of challenge to make the section fit for its purpose.

Sophie Vaisman is a recent graduate of the University of Ottawa Common Law Program.