Thank you very much.

I'd like to thank the committee for the opportunity to speak about Bill C-5.

As I begin my submission, I want to note that while the English name of our organization is Aboriginal Legal Services, our Anishnabemoin name, given to us by elder Jackie Lavalley, is Gaa kina gwii waabamaa debwewin. This translates as “All those who seek the truth”.

As the legislative summary makes clear, a major impetus for the introduction of this bill was the case of Sharma. ALS was involved in this case since it began in 2016. We wrote the Gladue report for Ms. Sharma.

Shortly after completing the Gladue report, at the invitation of Ms. Sharma's counsel, we intervened in the case at the Superior Court of Justice and led the calling of expert evidence and arguments on the charter issues. We were successful in having the particular mandatory minimum for drug importing struck down as cruel and unusual punishment. We also intervened at the Ontario Court of Appeal, where the restrictions on access to conditional sentences were found to violate the equality rights of indigenous people and the right to liberty under section 7. We recently intervened at the Supreme Court in the PPSC's appeal of the Court of Appeal decision. As you know, that case is now on reserve. I was privileged to be able to act as lead counsel for ALS throughout.

While we are, of course, supportive of this bill, it must always be kept in mind that if it passes as written, all it will do is partially restore Canadian criminal law to where it was in 2012. All of the work that was done in Sharma and all of the work of this committee just brings us back to where we were 10 years ago. While this is certainly necessary, it is hard to see this as representing progress.

We need to be clear: What is happening to indigenous people in the criminal justice system today is mass incarceration. In their paper entitled “Criminal Justice Reform and the Mass Imprisonment of Indigenous People in Canada”, Jane Sprott, Cheryl Webster and Tony Doob studied non-indigenous and indigenous rates of incarceration per 100,000 of population. In 2017-18 the non-indigenous incarceration rate was 79 per 100,000. That represented a 20% decline from 1996, when the legislation creating conditional sentences in paragraph 718.2(e) was passed. In contrast, the indigenous rate was 677 in 2017-18, a 33% increase from 1996. Indigenous Canadians are now almost nine times more likely to be in prison than non-indigenous Canadians.

When the 2017-18 rate of indigenous incarceration is compared to that of the U.S., the indigenous rate is actually slightly higher. America is the leading example of mass incarceration in the industrialized world. The fact that indigenous rates are even higher than the U.S. means that mass incarceration is the only term that can adequately describe what is happening to indigenous people. This fact is a national disgrace.

This government promised in 2015 to implement all the recommendations of the Truth and Reconciliation Commission. One of those recommendations was to abolish mandatory minimum sentences and the restrictions on conditional sentences. Bill C-5 is a start, but only just a start, on this commitment.

We believe this is likely the only opportunity Parliament will have to enact meaningful changes to mandatory minimums and conditional sentences. It is important, then, for this committee to be brave and to be bold and to proactively address the other mandatory minimums in the Criminal Code not expressly addressed in Bill C-5.

We know that the other mandatory minimums have not been studied in depth by the House, but that is not going to happen any time soon. An option that has always existed, and that we urge on this committee with respect to all other mandatory minimums, is to do what other countries have done and allow for what are called “safety valves”. A safety valve can be used by a judge who is concerned that the imposition of a mandatory minimum sentence will cause serious injustice to the particular individual before them and exempt that person from the mandatory minimum without having to declare the minimum sentence unconstitutional.

The advantages of such an approach are twofold. First, it is quicker than having to challenge the constitutionality of a mandatory minimum and leaves the legislation in place for most offenders. Second, decisions of trial judges are, of course, subject to appellate review. Within a few years, we would have a robust set of jurisprudence on what sort of cases merit the use of a safety valve.

Introducing an amendment to permit judges to rely on a safety valve for other mandatory minimums is a necessary and positive step forward.

Meegwetch. Nia:wen. Thank you.

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