Thank you very much.
We are very pleased to have this opportunity to speak and provide our perspective on Bill C-75 to the Standing Committee on Justice and Human Rights. In the interests of time I will not speak extensively about Aboriginal Legal Services, except to say that our Ojibway name is Gaa kinagwii waabamaa debwewin, which translates as “All those who seek the truth”.
The focus of our submissions today will be on four aspects of the bill that we think are steps forward, two that we see as significant steps backwards, and one glaring omission that represents a broken promise to indigenous people.
Let me start with the four provisions of the bill that we endorse. First, we are completely supportive of the elimination of peremptory challenges in jury trials. We have worked extensively on the issue of indigenous jury representation, or more precisely under-representation, for over 10 years. Government neglect and the use of peremptory challenges have had a corrosive impact on efforts to encourage indigenous people to act as jurors. We know that the committee will hear tomorrow from Professor Kent Roach on this matter and, having read his submissions already, we want to say that we support them wholeheartedly.
For that reason, we will leave peremptory challenges and move to the second area where we feel the bill provides a step forward, and that's effectively decriminalizing many administration of justice offences. Study after study has shown that indigenous people are significantly overrepresented among those charged with administration of justice offences. Penalties for these offences often result in jail.
As significantly, these convictions themselves are often bars to release on bail on subsequent arrest. This then leads to people pleading guilty to offences they did not commit just to get out of pretrial custody. You heard about that in the last session. The root problem in this area is the overuse of unnecessary bail conditions by judges and justices of the peace, at the urging, it must be pointed out, of Crown attorneys. Hopefully, the use of these conditions will diminish when and if it becomes clear that breaches of them will no longer result in further criminal convictions or jail.
Speaking of bail, that brings us to the third amendment we are very supportive of, and that's the amendment that enshrines the application of the Gladue principles to bail. Although courts in most parts of the country have arrived at this conclusion on their own, this will ensure that the law is applied evenly everywhere.
Finally, with regard to the victim fine surcharge, returning discretion to judges with regard to the imposition of the surcharge is long overdue. It is an important and much-needed change.
Now I will go to the two provisions that we feel should be rethought. The first is the reverse onus provision on bail applications for those charged with a domestic violence offence who have been convicted of such an offence in the past. ALS takes the issue of domestic violence very seriously, and we are all too aware of the impact of this violence on indigenous women and girls.
At the same time, we are also very aware that many well-meaning attempts to address the scourge of domestic violence not only fail but have unintended consequences that can be damaging to the very people they are supposed to help. In this context, we would point out the phenomenon of dual charging, which occurs when a man charged with domestic assault insists that his partner started it and should be charged. That has led to more and more women becoming enmeshed in the criminal justice system. One of the impacts of dual charging is that women end up with convictions for assault that they should never have had. If these provisions go through and their partner once again alleges abuse, then they may have trouble meeting the reverse onus. This means that they'll be detained, they will likely plead guilty, and the cycle will continue.
We need to be aware that over 40% of women in custody today in Canada are indigenous. The provision of this bill will make a shameful situation worse. If someone has a prior conviction for domestic assault and they are charged again with a similar offence, and then if there are concerns for public safety, whether for a particular individual or the community, bail should be denied. There is no need to resort to a reverse onus that will not end up accomplishing what its proponents hope, but will have dire consequences for indigenous women.
Our second concern relates to the increase in the number of what are now called super summary offences. We know from over 25 years of working in the criminal courts with indigenous people what will happen if the maximum penalty for summary conviction offences are raised. What will happen is that Crowns will insist on higher penalties and judges will impose those higher penalties, and one of the justifications for the higher penalties will be that it reflects the will of Parliament.
This is a perfect example of what criminologists call “net widening”. If there is a need to have some super summary offences where straight indictable offences now become hybrids—and I stress “if”—then perhaps their use can be justified. However, as it stands now, the promise of increased hybrid offences is being used as a Trojan horse to lead to widespread and unjustified increases to the maximum penalty for summary offences.
Finally, let me address what's missing from the bill. Given how comprehensive this bill purports to be and how many issues, big and small, it addresses, it is baffling to us how it avoids the issue that has to be the elephant in the room: the proliferation of mandatory minimum sentences and unjustified restrictions on the access to conditional sentences. This is the single largest change that's happened in our criminal justice system in the 21st century.
This government knows that mandatory sentences, minimum sentences, don't work. The Minister of Justice has spoken on this issue. Almost a year ago exactly, on September 29, 2017, to be precise, this is what the minister said about mandatory minimum sentences:
There is absolutely no doubt that MMPs have a disproportionate effect on Indigenous people, as well as other vulnerable populations.... The data are clear. The increased use of MMPs over the past decade has contributed to the overrepresentation in our prison system of Indigenous people, racialized communities and female offenders. Judges are well-equipped to assess the offender before them and ensure that the punishment fits the crime.
One of the purposes of this bill is to increase efficiency and unclog the courts, yet there are many, many charter challenges currently under way and more being contemplated to mandatory minimum sentences. Having been involved in a number of those challenges, I can tell you that they take a lot of court time. Every day that the government fails to address the impact of mandatory minimum sentences, people are sent to jail who don't need to go there—every day.
How do mandatory minimums affect indigenous people? You can look to see the number of challenges brought to mandatory minimums by indigenous people, and you can listen to the words of the Minister of Justice. This government pledged to enact all the calls to action of the Truth and Reconciliation Commission that fell within its ambit. Call to action 32 reads, “We call upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.”
Members of the committee, it is past time to heed this call to action. If this bill is not amended to address the issue of mandatory minimum sentences and lack of access to conditional sentences, then it won't happen before the next election. If it doesn't happen before the next election, it will be years before it happens.
This government does not believe in the utility of mandatory minimum sentences. This government believes that they're not only ineffective, but that they contribute to inequality in the justice system. This government is completely right in those beliefs. There can be no excuse for waiting. There can be no justification for waiting. We all know what the right thing is to do, and we need to do it.
Thank you. Meegwetch.