Conditional sentencing limits threaten reconciliation in Canada’s criminal justice system, advocates say

The Supreme Court's decision to uphold restrictions on conditional sentencing has bigger implications for Indigenous Peoples in the Canadian justice system, advocates say.

“There is now a narrow majority decision that doesn’t prioritize the systemic factors that brought Indigenous people into participation into the criminal justice system,” Sarah Niman, a lawyer on the Native Women’s Association of Canada’s legal team, said. “Essentially, it’s devaluing and not prioritizing those systemic background factors.

“It will surely worsen mass incarceration.”

The split ruling, released last week, revolved around Harper-era laws requiring prison time for those convicted of certain “serious offences,” including drug crimes. Conditional sentences — which can be served out of prison, often within a person’s community — are not an option for these offenders.

Cheyenne Sharma, the woman at the centre of the Supreme Court case, argued the conditional sentencing restrictions failed to take into account the systemic aspects of her experience as an Indigenous person. The court ruled against Sharma, with the majority decision saying she did not provide enough evidence to show the laws disproportionately discriminated against Indigenous women.

Specifically for Indigenous people in the justice system, judges must apply what’s known as the Gladue principles during sentencing. The Gladue principles, which are part of Canada’s Criminal Code, consider the unique challenges of colonization an Indigenous person has experienced, such as racism, intergenerational trauma and a disconnection from one’s family, community and culture.

Advocates like NWAC, which was an intervener in the Sharma case, argue denying judges the ability to consider conditional sentences for these offenders undermines the purpose of the Gladue principles.

For Lisa Kerr, a criminal law professor at Queen’s University, conditional sentencing is all about enabling Indigenous conceptions of justice. If someone is sent to jail, not much can be done to create culturally appropriate sanctions.

Conditional sentences allow judges to “craft conditions in partnership with that [Indigenous] community and their guidance, leadership, and carrying of the sentence,” Kerr explained.

In short, Gladue principles and conditional sentences are an important part of reconciliation, she added.

The four dissenting Supreme Court justices argued sentencing law can help address racial inequalities in the criminal justice system.

According to a correctional investigator report released the day before the Supreme Court decision, Indigenous women make up over 50 per cent of female offenders in Canada, and nearly 70 per cent of the offender population in maximum-security prisons.

The Sharma ruling came shortly before the first Indigenous justice was appointed to the Supreme Court of Canada. Michelle O’Bonsawin began her tenure in September, too late to weigh in on the Sharma case.

Some critics of the recent ruling wonder whether O’Bonsawin, who recently finished her PhD in the application of the Gladue principles, would have changed the tide in the split 5-4 decision.

However, lawyers who spoke to Canada's National Observer were reluctant to speculate on the individual composition of the court, noting the Canadian legal system is different from the highly partisan court of the United States.

That said, everyone on the Indigenous bar was thrilled to see an Indigenous member elevated to the Supreme Court, Niman said. An Indigenous judge will bring an elevated understanding of the practical applications for Indigenous Peoples.

“[O’Bonsawin] brings considerable expertise on the Gladue jurisprudence in particular,” Kerr said.

“And, of course, she brings her experience as an Indigenous person thinking about the parts of Gladue that call for Indigenous conceptions of justice to be allowed in.”

“I think we may have seen a very different decision if Justice O’Bonsawin was in this case,” Sen. Kim Pate, who has spent over 40 years working in and around the penal system in Canada, said in an interview.

Bill C-5 aims to restore judges’ power to hand out conditional sentences for a number of Harper-era laws. The bill, which is currently in its final readings before the Senate, recommends doing away with some mandatory minimum sentences.

Pate believes the bill doesn’t go far enough, removing only one-third of mandatory minimums despite the Truth and Reconciliation Commission's call to remove all of them.

She hopes to file amendments to reduce the number of mandatory minimum sentences even further.

“Jailing more Indigenous mothers and relegating their children to state care will not increase public safety, but it will be a predictable consequence of passing Bill C-5 as is,” Pate wrote to Canada’s National Observer in an email statement.

Even if Bill C-5 passes, it won’t be bulletproof in the future. Since the Supreme Court decision upheld the constitutionality of restricting conditional sentences, there is still the possibility for “tough-on-crime” legislators to side-step the Gladue principles.

“In the long run, of course, it means that all of Gladue is vulnerable,” Sonia Lawrence, a professor at the Osgoode Hall Law School at York University, said.

Matteo Cimellaro / Local Journalism Initiative / Canada’s National Observer

Matteo Cimellaro, Local Journalism Initiative Reporter, Canada's National Observer