Crime bill cuts concessions to aboriginal circumstance

WinnipegFreePress.com – opinion/westview – The View From The West
Posted: 12/6/2011.    By: Peter Kirby, Kenora

The Supreme Court of Canada recognized in R. v. Gladue (1999) that Canada has failed to come to terms with the over-incarceration of aboriginal offenders.

To illustrate, today, although representing only four per cent of the Canadian population, aboriginals represent 20 per cent of the prison population.

A recent head count at the Kenora District Jail revealed First Nations inmates represented 85 per cent of male and 100 per cent of female inmates. The Gladue decision urges courts to be more creative with sentencing, to look deeper into causes and solutions and to draw from aboriginal traditions.

One of these traditions is restorative justice, which seeks to bring victims and offenders together, enabling offenders to make meaningful amends for the harm they have done.

The judicial tool that has allowed for such creative sentencing is the conditional sentence.

It is usually in the form of house arrest, which allows an offender to live at home under a 24-hour curfew, with exceptions permitting going to work and attending medical appointments and rehabilitation programs.

Bill C-10, the Safe Streets and Communities Act, however, will continue to cut away at the ability of courts to impose these conditional sentences.

Former Manitoba Court of Appeal judge Charles Huband has written about C-10: “It makes little sense to incarcerate offenders in ever more expensive jails and prisons if an available alternative is allowing the offender to continue as a productive citizen, supporting himself and others.”

The Kenora Lawyers Sentencing Group, a group of local lawyers, has sent a letter to all members of Parliament stressing that conditional sentences are “the lifeblood of Gladue.”

Their submission articulates concern that Bill C-10 will not only reduce conditional sentencing, but it will also increase the application of mandatory minimum sentences.

These tough new measures are not supported by any evidence that shows conditional sentences are not working, or that tougher measures will cut down crime or will rehabilitate offenders. The government’s own research says so.

For example, a 2007 parliamentary legislative summary lists the following concerns about minimum sentences: increased pressure on court resources caused by more trials — offenders have no incentive to enter guilty pleas; jail overcrowding; opportunity costs — money spent on prison beds will not be there for crime prevention or other government programs; and the targeting of minorities — which led Australians to repeal their mandatory minimum laws.

Bill C-10 will not address these concerns, will do nothing to promote restorative justice, will increase the number of persons sent to jail and will increase the length of sentences.

The government is not only ignoring the Supreme Court of Canada and its own research, but it is ignoring what all Canadians know: that poverty, lack of housing and clean water and education and training and the fallout from residential schools all contribute to crime within aboriginal communities.

Instead of putting money into improving living conditions and rehabilitation programs, the government appears content to make jails the residential schools of the 21st century.

Costly policy costs us all.

Peter Kirby is a lawyer practising in Kenora, Ont.  <pklaw@kmts.ca>

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