Less than four years after Prime Minister Stephen Harper made a public apology for the “aggressive assimilation” of Aboriginal children into residential schools that began in the 1960s, there are concerns the federal government will repeat history with the introduction of the Omnibus Crime Bill currently before the Senate.
Bill C-10, titled the Safe Streets and Communities Act, will introduce mandatory minimum sentences for various crimes, longer detention times and the elimination of some conditional sentences, which National Chief Shawn A-in-chut Atleo of the Assembly of First Nations (AFN) believes will have a negative impact on Canada’s Aboriginal people.
Speaking at the AFN’s National Justice Forum, held in Vancouver Feb. 21-23, Atleo said the over-representation of Aboriginal people in the Canadian prison system will only get worse as actions proposed by the Omnibus Crime Bill are rolled out.
Currently, 88 per cent of inmates in the Northwest Territories are Aboriginal. Atleo raised the concern that extended incarceration times and a greater frequency in incarceration over the community justice system will lead to an increase in criminal activity among Aboriginal people.
However, the specific impact that Bill C-10 will have on any part of Canada, including the costs that will be driven down to the provinces and territories (an estimated $137 million, according to a recent report from Kevin Page, Canada’s Parliamentary budget officer), is still unknown.
“These restrictions may result in more sentences of actual incarceration for those who would previously have been allowed to serve their sentences in the community. These restrictions may have a more significant impact on Aboriginal offenders,” said Josh Stewart, a spokesperson for Alberta Justice.
The greatest concerns are related to how Bill C-10 will change Section 718(2)(e) of the Criminal Code of Canada, which provides that all available options other than imprisonment that are reasonable in the circumstances be considered for all offenders.
Stewart said the changes to the section will have to be carefully monitored to ensure the law does not give rise to unintended consequences for Aboriginal offenders convicted of offences that may have otherwise qualified for conditional sentencing. He said he was optimistic that the concerns would be addressed as the bill is passed by the Senate and is implemented.
Senator Nick Sibbeston of the Northwest Territories has been an opposing voice to the bill in the Senate, but the majority Conservative Senate is bound to give it the stamp of approval. Senators opposing the bill are hamstrung because they’re outnumbered, he said.
Circle sentencing in the North’s community justice system has been proven effective, and the personal nature of the system has demonstrated a smaller chance of re-offending compared to traditional prison sentences, he said.
“The circle sentencing is going to be less possible, because if they’re charged with these offences, they’ll have to go to the courts, and the courts will have to impose the minimum two years or whatever is allowed,” Sibbeston said.
Mandatory minimum sentences, including new ones for drug-related offences, could have a profound impact on the community justice system. With sentences for a variety of crimes having mandatory minimums under the new law, courts will have no choice in how they sentence people convicted of specific types of crimes, and one possible consequence is an increase in the number of people in Northern prisons.
Nunavut Minister of Justice Daniel Shewchuk raised similar concerns in an address to the Senate on the Nunavut justice system and rehabilitation.
“Incarceration does not equate to the values of a people who have been living off the land for thousands of years. As well, mandatory minimums do not allow for traditional community and elder involvement in the justice system, as the outcome is predetermined by the minimum mandatory sentence regardless of community opinion or involvement,” Shewchuk said.
Sibbeston said the Conservatives are “getting tough on crime” based on realities in southern Canada. In trying to reduce crime in large urban centres, the southern mindset is going to result in harsher penalties on crimes that have traditionally been dealt with by community justice in the North.
“Unfortunately, we’re adversely affected by it. I think the act is going to be tougher on native people,” Sibbeston said.
Ninety per cent of Aboriginal people in the NWT prison system are there as a result of committing crimes while under the influence of alcohol, which Sibbeston described as a social problem rather than a criminal one.
“Unfortunately, because of the provisions in the laws that they have passed, it’s going to mean there are people in the North being sent to jail for longer periods of time,” he said. “There are many minimum sentences where the judge has no discretion.” For instance, theft over $5,000 will carry a minimum six-month prison sentence, whereas circle sentencing may require the stolen property to be returned and an apology to be made in an effort to make restitution to the victim.
Shauna MacKinnon, director of the Canadian Centre for Policy Alternatives, warned that Bill C-10 could perpetuate the damage of the Sixties Scoop that the Harper apology has yet to wipe away.
“While Bill C-10 does not explicitly target Aboriginal people, the implications for Aboriginal people cannot be ignored. Many argue that the Harper government policy is essentially creating a new form of residential school,” MacKinnon wrote on the Policy Fix blog, Jan. 24.