Opinion: In the absence of real systemic reform, a bill would allow judges to adjust sentences despite mandatory minimums makes an unjust system better

Patricia M. Barkaskas is the academic director of the Indigenous Community Legal Clinic at the Peter A. Allard School of Law at the University of British Columbia. Emma Cunliffe is an associate professor in the Peter A. Allard School of Law at the University of British Columbia. Both are expert advisors with EvidenceNetwork.ca.

There is no justice for Indigenous women in the current Canadian justice system.

Indigenous women are violently victimized at almost three times the rate of their non-Indigenous counterparts. Indigenous women are also more likely to commit criminal offences—but nine times more likely than non-Indigenous women to be sentenced to prison.

Independent Sen. Kim Pate recently announced her intention to introduce a private member’s bill that would grant Canadian judges the power to impose an appropriate sentence for any offence, regardless of whether the offence carries a mandatory minimum sentence of imprisonment. An appropriate sentence reflects the seriousness of the offence committed and the offender’s degree of responsibility. But it also takes into account the circumstances in which someone has committed a crime.

Judges already have the power to impose a more severe sentence than the mandatory minimum. This bill would allow them to impose a lesser sentence than the usual minimum in appropriate circumstances.

Adopting an evidence-based approach to sentencing reform makes sense for all actors within the Canadian criminal legal system. However, it is an urgent imperative for Indigenous women. For them in particular, a mandatory minimum sentence is often a systemic response to an offence committed in the context of extreme poverty, violent victimization or fear of state apprehension of children. Indigenous women’s experiences of racism and colonial violence are “risk factors” that lead some to commit criminal acts.

Mandatory minimum sentences remove judicial discretion to account for these circumstances in sentencing. Worse, they have a disproportionately harsh impact on Indigenous women as judges are unable to craft sentences that reflect the circumstances in which Indigenous women offend.

The proportion and number of Indigenous women in Canadian prisons has grown rapidly as the use of mandatory minimum sentences has proliferated.

The recent case of Cheyenne Sharma illustrates the pattern. Sharma, a 20-year-old Saugeen woman, was arrested at Pearson airport while carrying cocaine. She had no previous criminal record and co-operated immediately with the police and investigation. Sharma later explained that she had agreed to carry a suitcase through customs for money because she was terrified of losing her housing and, consequently, her daughter. Like too many Indigenous families, Sharma and her daughter were living in poverty and often precariously close to becoming homeless.

Sharma’s personal and family history reveals intergenerational patterns typical of many Indigenous women in her position: her grandmother was a residential school survivor, her mother spent time in foster care and Sharma experienced poverty, sexual violence and addiction from an early age.

However, Sharma’s case is unusual because Aboriginal Legal Services successfully challenged the mandatory minimum sentence that would otherwise have applied to her. Mounting such a challenge takes resources that are rarely available within our chronically underfunded legal aid system.

Eventually, even the prosecutor conceded that the mandatory minimum sentence was too harsh for Sharma because of her family history and personal context. However, as Jonathan Rudin, director of Aboriginal Legal Services in Toronto observed: “The fact that the Crown thinks [her personal history is] exceptional speaks to the fact that they don’t really understand the circumstances of Indigenous people.”

The trial judge agreed with Aboriginal Legal Services: imposing the mandatory minimum sentence upon Sharma would be “cruel and unusual.”

Allowing judicial discretion in sentencing is also important because research shows that Indigenous women who have experienced violence are more likely than other women to plead guilty to serious charges and more likely to be sentenced to lengthy periods in custody. Sen. Pate’s bill would permit a trial judge to craft a just sentence for an offender such as Sharma without the need for an expensive court battle of the kind that most individuals before Canadian courts cannot afford.

Sen. Pate’s bill, however, would just be the beginning. Ending mandatory minimum sentences would only make an unjust system less unjust. Ultimately, neither judges nor the Canadian justice system are capable of unilaterally delivering justice when it comes to Indigenous peoples in Canada, and a fuller solution must begin with the restoration of Indigenous legal systems and processes and with approaches that incorporate Indigenous women’s knowledge, concerns and needs.

Providing judicial discretion to depart from mandatory minimum sentences is a simple step that can ameliorate some of the harshest impacts of the criminal justice system on Indigenous women. But it doesn’t change the need for deeper systemic reform.

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