Former TRC chair criticizes Liberal bill to end some mandatory minimum sentences

The Trudeau government’s proposed legislation aimed in part at reducing the mass imprisonment of Indigenous people in Canada misses the mark, Murray Sinclair said Thursday.

The former Truth and Reconciliation Commission (TRC) chair and retired senator told the Senate legal committee studying Bill C-5 that it “does not go nearly far enough” as a strategy to reduce the overincarceration of Indigenous and Black offenders.

The bill, if passed, would eliminate about one third of the country’s mandatory minimum penalties, provisions in the criminal code imposing compulsory prison time for those convicted of certain offences, Sinclair explained.

“The government has provided no data to justify a piecemeal approach to the repeal of mandatory minimum sentences,” he said, “nor have they explained why they have rejected TRC Call to Action 32.”

The TRC’s 2015 final report urged federal and provincial governments to commit to eliminating the overrepresentation of Indigenous offenders behind bars over the following decade in Call to Action 30.

In Call to Action 32, the TRC urged the federal government to amend the criminal code so judges, after weighing all the evidence, can depart from mandatory minimums by imposing discretionary sentences.

Murray Sinclair speaks as chair of the Truth and Reconciliation Commission in Ottawa on Tuesday, June 2, 2015. (Adrian Wyld/Canadian Press)

By not putting this statutory power in judges’ hands, Sinclair said the Liberal bill fails to implement that particular call to action.

“I urge the government to reconsider and fully implement Call to Action 32,” Sinclair said. “We need to move away from a simplistic, punitive, one-size-fits all response, and we need to trust and allow our judges to do the job they have been appointed to do.”

The Harper government introduced many mandatory minimum sentences into Canadian law as part of a tough-on-crime agenda. Some, such as mandatory minimum gun crime penalties, have been deemed unconstitutional by the country’s highest court.

When introducing C-5, Justice Minister David Lametti touted it as a set of reforms that would immediately address overincarceration.

Advocates for their repeal, such as Independent Sen. Kim Pate, have argued these laws excessively punish Indigenous people, and women in particular.

Indigenous women make up 50 per cent of the federal prison population, according to Correctional Investigator Ivan Zinger, Canada’s prison ombud.

Indigenous men and women combined comprise 32 per cent of the penitentiary population, Zinger said in a release last year, calling the numbers “unconscionable.”

Before the hearing, Pate told CBC News passing C-5 unamended would risk failing to achieve the bill’s desired effect.

“This risk is that we will continue to see the exponential increase in the numbers of Indigenous people in prison as well as those of African descent, and most especially we will continue to see the trajectory of the incarceration rate of Indigenous women skyrocketing,” she said.

The bill passed in the House of Commons but not without opposition from Conservatives.

Ontario Tory MP Michael Barrett slammed the proposed reforms during last year’s House debates as a “criminal-first agenda” and “soft-on-crime approach” that will keep violent offenders out of prison.

Independent Sen. Kim Pate has long pushed for legislative reform to allow judges to avoid delivering “mandatory minimum penalties in cases where it would be unjust and unfair to do so.” (Colin Perkel/Canadian Press)

Pate argues the evidence backs her and Sinclair’s position.

“That kind of political rhetoric is all aimed at inflaming public opinion, not looking at the evidence and determining what we actually need to address,” she said.

“All of the evidence shows that in fact tailoring sentences, ensuring that accountability exists, but tailoring sentences to meet the circumstances is far more effective.”

Senators also heard from other legal and policing experts following Sinclair.

Sarah Nieman, legal counsel with the Native Women’s Association of Canada (NWAC), threw her support behind the proposed amendment.

“Many of the Indigenous women coming out of federal prisons today are not coming out whole, healed or restored,” Nieman testified.

“The criminal justice system is failing them and we ask you to do your part in remedying that harm.”

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