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Too many Indigenous and Black people are in Canada’s prisons. Here’s how the parties will — or won’t — fix that

Too many Indigenous and Black people are in Canada’s prisons. Here’s how the parties will — or won’t — fix that
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Bold reform of Canada’s criminal justice system is needed to tackle its long-standing problem of the overrepresentation of Indigenous and Black people in prisons, legal experts say.

The question is, have the three major parties vying to form the next federal government demonstrated they’re up to the challenge?

Experts who spoke to the Star say one party has good promises, but is short on details and unlikely to form the next government; another has recycled adequate promises from the past that it failed to follow through on; and yet another makes promises that will do little to tackle the problem, and may even exacerbate it.

“We’re in a moment where to not boldly follow the clear evidence seems to me irresponsible,” said Sen. Kim Pate, in the Senate and is a former executive director of the Canadian Association of Elizabeth Fry Societies.

“I would say that to every party, and I hope every Canadian asks every candidate: What are you trying to do to ensure a more substantively equal country?”

Indigenous adults make up about 30 per cent of the prison population, despite representing only about five per cent of the Canadian population, while Black adults represent three per cent of the Canadian population but slightly more than seven per cent of federal offenders.

Experts have been saying for years that one of the important ways to tackle the overrepresentation of Black and Indigenous people in prison is to repeal mandatory minimum sentences , which prevent judges from crafting sentences tailored on the specific circumstances of the offenders.

It’s an idea that also appears popular with the public. A survey conducted for the Department of Justice in 2017 showed that judges should be given flexibility to impose sentences below the mandatory minimums.

There have also been long-standing calls to repeal all offences for simple drug possession as part of a package of necessary measures — along with a safe drug supply — to combat Canada’s deadly opioid epidemic.

Liberals

Under fire for failing to implement meaningful justice reform after nearly six years in power, the Liberals finally tackled mandatory minimum prison sentences this year when they introduced Bill C-22 , which would remove them for all drug offences and some firearms offences.

But the bill — which faced criticism for not going far enough — , and died when the election was called. The bill also allowed for the greater use of conditional sentences, which can include house arrest.

The Liberals committed in their election platform released Wednesday to reintroduce Bill C-22 within their first 100 days if re-elected, and to create a “Black Canadians Justice Strategy” to address anti-Black racism in the system.

“C-22 is just a start, and the challenge for the Liberals is that the promises they are going to make are promises they have already made,” said Jonathan Rudin, program director at Aboriginal Legal Services.

“This is the third election campaign where they will be making these promises and you start to wonder, when are they actually going to follow through?”

Bill C-22 also proposed a framework requiring police and prosecutors to use their discretion to keep simple drug possession offences out of the courts — but stopped short of actually repealing those offences.

A full repeal is necessary to ensure police are not disproportionately charging Indigenous and Black people, given that charges would still remain at the discretion of officers under C-22, said University of Toronto criminologist Akwasi Owusu-Bempah.

“The police discretion is key, as they are the gatekeepers to the system,” he said, “and we know the police do not exercise their discretion fairly.”

Liberal Leader Justin Trudeau — who has been dismissive in the past of the idea of decriminalization — said Tuesday during a campaign stop that a Liberal government would be “absolutely open to working” with provinces that want to see some form of decriminalization within their boundaries.

But he also did not commit to a full repeal of the offences that would apply nationwide.

The Liberals also announced millions of dollars in funding this year to support what are known as “impact of race and culture assessments,” which can be used at sentencing to help judges “better understand the effect of poverty, marginalization, racism and social exclusion on the offender and their life experience” and how that might relate to the offence committed.

Conservatives

The Conservatives do not commit to repealing any mandatory minimum sentences, and in fact promise to introduce at least three more in the areas of domestic violence, gun smuggling and the criminal use of a firearm.

Unlike the NDP’s platform and the Liberals’ stated intention with Bill C-22, the Conservative platform makes no mention of the impact of mandatory minimum sentences on Indigenous and Black people.

“The Conservative policy is quite clear, but it’s clearly regressive and only going to exacerbate the problem of overrepresentation of Black and Indigenous peoples in the justice system,” said Daniel Brown, vice-president of the Criminal Lawyers’ Association.

“The idea that being ‘tough on crime’ will somehow deter others from committing crime is simply not true, from what we’ve seen all over the world.”

The Conservatives promise to provide $25 million for a “national police support and community training program to reduce the incarceration rates of Canada’s Indigenous communities,” but Brown countered the party is “talking out of both sides of their mouth.”

“If they were genuinely concerned with over-incarceration, they would deal with the root causes of that, which are these failed mandatory minimum sentences,” he said.

The Conservatives say they will treat the opioid epidemic as a health issue, and that “the last thing that those suffering from addiction should have to worry about is being arrested” — while not explicitly stating they would repeal possession offences.

The stance was seen as a step in a new direction for the party, given that Leader Erin O’Toole has also said a Conservative government would not block the creation of safe injection sites.

“They had to shift because the wave of public opinion is completely against them on things like that, people are getting more and more educated about the social and mental health realities of drug use and addiction,” criminal defence lawyer Annamaria Enenajor said.

“And it’s unconscionable for any government to continue to pretend as though the criminalization of drug use in our country has a net positive effect.”

The party would make significant investments in law enforcement, including hiring 200 additional RCMP officers to tackle gangs, guns and drugs, and providing $100 million over five years for training for police forces on sexual and online offences.

The Conservatives would also partner with the private sector to create a “gang exit strategy” program.

New Democratic Party

The NDP promises to remove “most” mandatory minimum sentences, starting with all drug offences and “allowing trial judges to have greater discretion in sentencing.”

Rudin said the mandatory minimum promise is the “most explicit statement” he’s seen on the issue in a platform, and “would go a long way” in addressing some of the problems in the system.

Other measures proposed by the party include proactively expunging criminal records for minor cannabis convictions, prioritizing the collection of race-based data, and introducing an “African Canadian Justice Strategy.”

The NDP would repeal simple possession drug offences.

And the party promises to create a “national task force to develop a road map to end this systemic injustice,” referring to the overrepresentation of Black and Indigenous peoples in prisons.

“We’re going to get nowhere with that. You need to pass laws,” said Enenajor about the task force idea.

It’s a sentiment echoed by Owusu-Bempah. “We need the government to get on and do what the numerous task forces have told us in the past to do,” he said. “We need an action force, not a task force.”

“The NDP platform is frustratingly superficial on key issues and jumps all over the place,” she said.

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