Criminal Law & Marginalization in Canada
Public Policy Intern
November 2016- June 2017
Aàron is a Law student based in Montreal, originally from El Salvador. He loves to travel and enjoys conversations with people from all around the world with different positive ideas. With an interest in security, particularly in Latin America and the Middle East, Aàron believes the law will lead to improved and sustainable ways of solving global security issues.
In San Salvador, the capital of El Salvador, there is a big monument of a naked lady with a sword and a set of scales in a busy downtown traffic roundabout. I remember being around 13-14 years old and visiting my family in the capital and asking about its meaning. ‘’La Chulona’’ was put in place after the peace accords of 1991 after the civil war that had ravaged the country for more than 12 years; she represents Justice and the country's loyalty to the new constitution of 1993. In El Salvador, the power of law was the key to step away from civil war and to have a peaceful and normal life for its citizens. My parents are from El Salvador, but because of the war, they had to flee the country, and I was born in Montreal, Canada. I guess the image and the power of Justice resonated strongly in me, because I studied International Law and am now finishing Law school in Montreal. Furthermore, I too believe the power the law is key to implement peaceful living, but also equality.
However, it is not everyone who feels equal in front of the power of law. For the past few years in America, the movement ‘’Black Lives Matter’’ has been demanding justice loudly because of the treatment african-americans felt they were receiving by the legal system as well as a series of murders committed by police officers against African-Americans that seemed to be cooperating (some of those were caught on camera). Canada’s history has shown that First Nations are the group that is being marginalized from Canadian law. For native communities, there is distrust for Canada’s legal system resulting in overpopulation of native offenders in penitentiaries, even if it is supposed to be a tool promoting equality. After showing how First Nations’ communities are marginalized by criminal law in Canada, we will demonstrate two policies the government could embrace to fix the problem of overcrowding of native offenders in Canadian jails.
First Nations and criminal law in Canada
Canada is a fairly well regarded country in the world when it comes to respecting international fundamental rights, signing and ratifying the Universal Declaration of Human Rights and other international conventions. There is a mechanism from UN Human Rights called the Universal Periodic Review which is ''a State-driven peer-review process before the UN Human Rights Council. Under the UPR, each country is reviewed by other UN Member States every four and a half years. This provides an opportunity for States to discuss their domestic human rights framework as well as measures taken to promote and protect human rights in their country.’’ Canada was under review in 2009 and 2013; other states from around the world targeted Canada’s main deficiency with respect to Human Rights as being their treatment of First Nations’ communities.
Local leadership in First Nations’ communities have started a movement called Idle no more, challenging the Canadian government to help improve their conditions and give them more political authority in the country. There are a lot of social issues involving First Nations and the relationship between them and the rest of the country, but the one social issue that is putting Canada to shame (at least through the UPR reviews) is the over-representation of First Nations in penitentiaries. In the past 20 years, the ratio of natives being incarcerated has more than doubled, going from 12 to 25.4% ; the statistics for women are worse, the number now stands at 36%. In provinces such as Saskatchewan and Manitoba, the representation of natives in provincial jails is astonishing, reaching 72% and 55% respectively. In Canada, the First Nations account for almost 4% of the Canadian population. Those high ratios are explained by a number of social reasons such as unemployment, cultural loss, heavy past with the government, drug and alcohol use, and multiple more criminogenic factors.
This problem is one that local leadership has tried to solve for years. Groups such as Idle no More are still claiming their rights to improved conditions to get out of a social problem that is overpopulation in the Canadian penitentiary system. The Canadian government has seen this trend happening in the country, and it decided to change the criminal law in 1996 to have comprehensive sentencing for criminals of those communities. It did not work because it was not focusing on the causes of the high rate of delinquency of aboriginals, but this reform in 1996 has laid the foundation for solving the problem. Since it is a social issue, it will take some time to turn the situation around for aboriginal people and their relationship with Canadian authority. In the meantime, there are some new experiments being performed in the sentencing of Aboriginal criminals based on 718.2 e) of the Criminal Code. Those experiments take into account Aboriginal traditions such as Aboriginal law and the power of the community to implement a comprehensive sentence to those offenders.
Through art.718.2 e) of the Criminal Code, alternative sentences are now given to First Nation criminals as punitive consequences to enhance their chance of reinsertion without going spending time in jail. Of course, to avoid jail time, the crime cannot be severe. Therefore, for the same crime, through 718.2 e) Cr.C., the First Nations’ criminal will have the right to be sentenced through alternative means of justice if the crime is not considered as violent or as a serious offence against society’s values. Today, several programs exist to tackle the problem of overpopulation of First Nations in prison : Probation services spent in native communities, the possibility to be with an Elder (from the same community) at hearings of the Parole Board of Canada, as well as the creation of justice committees between the victims (and their family) and the offender.
However, even if those techniques are a step in the right direction, a recent study from Correctional Service Canada shows that the overpopulation of native offenders in penitentiaries is not reducing, but seems to be increasing. The first reason of this sad reality keeps being the cultural gap between Canada’s government and First Nations’ authority; even with efforts from Justin Trudeau’s government, there is still a profound disconnection between Canadian law and Canadian natives. Furthermore, Stephen Harper’s government (in his tenure of almost 10 years - 06-02-2006 to 04-11-2015) instaured hard repression policies against any criminal activity, particularly with the establishment of mandatory minimum sentences.
Here are potential courses of action the Canadian penal system could use to see a real positive change towards reducing and at some point exterminate over-population of native offenders in Canadian prisons.
First, integrating First Nation traditions to sentencing methods in Canadian criminal law would be ideal to reduce the cultural gap between ‘’Canadian’’ law and First Nations. Sentencing methods in today’s Canadian courts are individualized to the offender. This goes completely against the philosophy behind sentencing in traditional First Nations cases, which had a more integrating approach to sentencing because the community played a huge part of it. Cases were shown in front of the entire community to bring shame, but also acceptance and forgiveness, because the judicial and individual identity of a native offender is defined by its community. The sentencing process cannot be generated without the help of a native organization created to assist the legal system in criminal cases involving a native offender. To integrate such traditions with a special committee, we ought to allow a larger interpretation of art.11d) of the Canadian Charter of Rights and Freedom (Constitution Act, 1982). The article says the offender has a right to a ‘’public hearing by an independent and impartial tribunal’’. These independent and impartial tribunals could be chaired by native community leaders or be a joint collaboration between a First Nation committee and a qualified judge.
Second, the canadian legal system can give more space to native elders and community leaders in circles of healing and circles of sentencing. These methods already exist in the dealing of cases including a native offender. But the judge is face and front of the whole process because (s)he listens to the arguments from lawyers and (s)he leads the case; also, the judge comes from a background of canadian criminal law and has no bases on traditional native sentencing. Therefore, to improve such techniques, the person leading the case needs to be prepared both in the Canadian criminal legal system as well as the native approach to sentencing. Again, to establish a comprehensive relationship between the native offender and criminal law, the circles of healing and circles of sentencing can be directed by Elders and native community leaders. Also, the judge (or Elder) should not be at the forefront of the case. Since First Nations place a lot of importance to their community, the ‘’spotlight’’ should not be on the one judging the case, but on all of the participants. In the case of circles of healing or circles of sentencing, this means that the direction is taken by the group, and not by the judge (or Elder).Then, it is by allowing an increased role to native communities and by changing the perception of importance of the judge that sentencing can be more efficient in tackling the problem of overpopulation in jails for First Nations in Canada.
In conclusion, with the help of First Nations’ leadership, the Canadian government will be able to implement solutions to a problem that has been noted internationally, but felt deeply in First Nations’ communities and Canada itself. This is a perfect example of how a state driven system needs the contribution of state and non-state actors to implement policies through law and improving the lives of many. Electing inclusive policies for sentencing native offenders will likely eradicate the major issue of overpopulation of First Nations’ offenders in Canadian prisons.
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