Thank you for the opportunity to meet with you today.
I've been researching issues associated with women's imprisonment for the past 20 years, and the alarming rise in the incarceration of indigenous women is an urgent issue for Canada. I commend the committee for studying and working to address it.
I know that the committee has heard from other witnesses about the fact that indigenous women represent the fastest growing prison population in Canada; they do harder time than other prisoners; they are more likely to be in maximum security, put in segregation, restrained, and subjected to force; and they are less likely to get parole.
At the same time, it's useful to keep in mind the fact that the sharp line the law likes to draw between victim and offender utterly breaks down when we look at the situation of indigenous women who are in prisons across this country. These are the same women who are going missing and being murdered in alarming numbers.
I'm going to spend my short time today on three issues and discuss solutions to those issues.
The first is the disproportionate impact of mandatory minimum sentences on indigenous women, including, most problematically and often not discussed, the mandatory minimum life sentence and parole ineligibility period for murder.
Second, I'm going to talk about some of the ways that section 718.2(e) of the Criminal Code—the Gladue analysis meant to reduce their incarceration—is not benefiting or effectively being applied to indigenous women.
Third, I'll address the urgent need for community release options for indigenous women, and correctional policy and planning oriented toward community release.
First, with respect to the mandatory life sentence and mandatory parole ineligibility periods for murder, everyone convicted of murder in Canada gets the mandatory life sentence and mandatory period of parole ineligibility of at least 10 years for murder and 25 years for first-degree murder. During the last decade, Parliament has amended the Criminal Code to allow parole ineligibility periods to be made consecutive to one another and has abolished an important opportunity for early parole review, the so-called “faint-hope clause”.
Indigenous women are vastly overrepresented among those sentenced to life. From 2005 to 2015, 44% of women sentenced to life or an indeterminate sentence were indigenous. A closer review of each year in this range reveals a particularly grim picture. From 2008 to 2009, four of the six women sentenced to life were indigenous. From 2012 to 2013, six of the seven women sentenced to life were indigenous.
I'll talk in a moment about the particular ways that mandatory sentences are unnecessary, costly, and disproportionate, particularly for indigenous women, but it's important first to step back and understand at the outset that while murder is obviously the most serious offence in our Criminal Code, research has shown that policy-makers often overestimate punitive desires among the public for long prison sentences. In fact, members of the public, when properly informed, are actually less punitively minded than what you may expect.
Specific to the mandatory life sentence for murder, in a 2010 study in England and Wales involving over 1,000 public participants, two-thirds of those who participated concluded that a life sentence was not an appropriate penalty in the majority of the homicide situations they were presented with. There's a huge range of situations that we often don't think of when we think about our law of murder.
Canada is increasingly an outlier among developed countries in the area of sentencing for murder. Only 11 of 42 European Union member states impose mandatory life sentences. I could talk about that, but I'll skip over those numbers to tell you that we are an outlier, other than when you look at the United States.
Mandatory minimum sentences disproportionately impact women and particularly indigenous women. Women are disproportionately impacted when sentencing judges are unable to consider the implications of removing mothers, many of whom are sole caregivers, from their children and family. The removal of the ability for judges to consider lower levels of culpability—for instance, being a party to a spouse's offences or acting in relation to an offence against oneself or one's child, which is often the case for homicide cases involving women—disproportionately impacts women, and indigenous women in particular.
Mandatory minimum sentences encourage wrongful guilty pleas, which are an important factor contributing to wrongful convictions. We have seen this in relation to child homicide cases and cases involving battered women in Canada in the past two decades.
Research suggests that indigenous people are less likely than other accused to benefit from the exercise of prosecutorial discretion to proceed with a mandatory sentence or not. Indigenous people tend to be overcharged and plead guilty at higher rates than non-indigenous people.
Mandatory minimum sentencing undermines section 718.2(e) of the Criminal Code, which is aimed at reducing the over-incarceration of indigenous people. It is at odds with the proportionality principle and interferes with a judge's ability to take circumstances into account.
that brings me to the second issue, which is paragraph 718.2(e) of the Criminal Code and the Gladue analysis meant to reduce the over-incarceration of indigenous people and the fact that it's not effectively benefiting indigenous women.
Why do I say that? The whole purpose of a Gladue analysis is to understand the social context of an indigenous person's involvement with the criminal justice system, the way that their experience connects to what we know about systemic discrimination, and the impact of colonization. The second purpose is to identify ways to get indigenous people out of prison and into the community where the results are going to be more positive.
However, Gladue factors—and these are social history factors—are, in effect, used against indigenous women in the context of risk assessment decisions at all levels of the criminal justice system—bail, sentencing, correctional placement and planning, security classification, parole, and other correctional decision-making. The fact that indigenous women have often experienced extreme trauma, poverty, substance use, and other forms of marginalization is used as evidence that they need more correctional intervention and more time in prison. Their needs are equated with risk, and this means more time in prison, even though we know prison is not necessary for public safety in the vast majority of cases, and it does not work well for indigenous women.
That connects to my third point, which is the urgent need for more community release options for indigenous women, and correctional policy and planning oriented toward community release. This is not, I should say, for the most part a problem with the law.
The law is generally set up to facilitate community release. The restrictions on the availability of conditional sentences that have been enacted in recent years, and on limits on the Criminal Code availability of conditional sentences should be repealed, in my view. I can talk more about that in questions, but with respect to the Corrections and Conditional Release Act the principles and legislative provisions are there. Sections 81 and 84 in particular—and I think other witnesses have spoken about these provisions—are meant to transfer resources to indigenous communities, both urban and reserve, to host community members there, to support their reintegration in a way that benefits the whole community and broader society.