Despite horrors, Aboriginal overincarceration surmountable problem

At only five per cent of the population in Canada, Aboriginal people now represent 30 per cent of federally sentenced inmates. This is a five percent bump from the last available data. It doesn’t require a statistician to determine that it’s only getting worse.

I woke up the day after the late-January release of a special watchdog report to the sound of two reporters commenting about the “most overcrowded” institutions in Ontario: Sudbury and Kenora. I’ve practised in Kenora for the past 14 years. Overcrowding has always been an issue. The past few years it has deteriorated. Most of the inmates are Aboriginal with 93 per cent of females being Aboriginal.

Over the past year I’ve had four serious jailhouse assault cases. In Ontario violence misconduct charges have increased from 2010-2017. What’s interesting is that this violence seems to be related to the boiling point inside the jails.

The study found that there was no relationship between being in custody for a violence charge and involvement in violence in the jail. This means that inmates who are in custody for non-violent offences are sometimes leaving with violent convictions.

Politicians, our current prime minister being no exception, have little to no incentive to do anything about this.

It took more than 10 years to undo most of the damage from Harper’s mandatory minimums. It will take another 10 to repair the harm caused by Bills C-51 and 75, sneakily passed under the Trudeau administration. Among the most impactful changes: The new laws make it easier to obtain convictions in sex assault cases. These convictions trigger some of the longest custodial sentences. The reforms also eliminate preliminary inquiries, taking matters out of provincial court and into the superior court arena where sentencing is typically higher.

In response to the watchdog report, Public Safety Canada issued a statement pointing to the $120 million investment to support Aboriginal reintegration into the community. Their response demonstrates a lack of understanding about the issue.

Reintegration means that they have already served their sentence. This is the back end of the process. As defence counsel I’m uncertain where this federal funding has gone. I have not seen it in the northwest region.

All I’ve experienced are massive cuts to legal aid, particularly the Gladue funding that would assist Aboriginal offenders at the bail and sentencing level. These cuts will no doubt contribute to the growth in overincarceration of Aboriginal peoples.

What is the solution? I’d recommend the obvious: stop passing laws that add to their overincarceration. Stop spending federal funds on researching the issue, we already know that there’s a problem. Stop cutting legal aid funding. Stop only listening to victim’s rights groups to reform the system. Start listening to the lawyers, judges, chiefs and band council members who are at the front line of this battle.

The Criminal Trial Lawyers’ Association of Alberta called upon the government to issue mass pardons to Aboriginal offenders in federal institutions who are not serving time for violent offences.

That could be a start in the right direction.

Originally published in The Lawyer’s Daily February 10, 2020:

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