Apples, oranges, and steel: the effect of mandatory minimum sentences for drug offences on the equality rights of aboriginal peoples.

• Author: Sewrattan, Christopher

In March 2012 the federal government passed the Safe Streets and Communities Act. (1) Part of this legislation created mandatory minimum prison sentences for certain drug offences. (2) This article will analyze the effect of these drug-related mandatory minimum prison sentences on the equality rights of Aboriginal peoples (3) under section 15 of the Canadian Charter of Rights and Freedoms? The article will detail how social-scientific data, government reports, academic commentary, and criminal jurisprudence document a disadvantage and prejudice against

1. THE SAFE STREETS AND COMMUNITIES ACT

   A mandatory minimum prison sentence is a sanction that requires sentencing judges to incarcerate an offender for not less than a prescribed period of time. (5) The Safe Streets and Communities Act amended a number of criminal statutes, one of which is the Controlled Drugs and Substances Act (6) The amended Controlled Drugs and Substances Act now prescribes mandatory minimum prison sentences in certain circumstances for the production or trafficking of drugs listed in Schedule I or Schedule II of the Act. (7) These drugs include heroin, cocaine, methamphetamine, cannabis, and marijuana. (8) The mandatory minimum penalties range between one and two years, depending on the circumstances and the substance. Generally, the mandatory minimum penalty will apply where there is an aggravating factor, such as trafficking for the benefit of organized crime or a prior conviction for a related offence. (9)

2. SECTION 15 OF THE CHARTER

   The Supreme Court of Canada (SCC) interpreted section 15 relatively recently in R v Kapp. (10) Subsection 15(1) of the Charter guarantees that "[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination". (11) Subsection 15(2) states that subsection 15(1) does not preclude affirmative-action programs. (12) Under the analytical framework established in Kapp, a government accused of violating section 15 can establish the constitutionality of its impugned legislation by showing that the law falls under subsection 15(2). If the government fails to do so, the law must receive full scrutiny under subsection 15(1) to determine whether its impact is discriminatory. (13) A law will fall within subsection 15(2) if it has an ameliorative or remedial purpose and it targets a disadvantaged group. (14) The mandatory minimum prison sentences for drug offences under the Safe Streets and Communities Act seek to incarcerate all offenders who commit serious drug offences. These laws clearly do not fall under subsection 15(2), as they lack an ameliorative or remedial purpose. (15) The analysis must therefore move to a consideration of subsection 15(1).

   A law will be deemed discriminatory and in violation of subsection 15(1) if a rights claimant proves two elements on a balance of probabilities. (16) First, the law must create a distinction based on a discriminatory ground. Second, the distinction must impose a disadvantage on the basis of stereotyping or have the effect of perpetuating group disadvantage and prejudice. Each of these elements will be considered individually.

   1. THE SAFE STREETS AND COMMUNITIES ACT CREATES A DISTINCTION BASED ON AN ENUMERATED GROUND

      Under the first element of the subsection 15(1) test, the courts must determine whether the mandatory minimum prison sentences for drug offences under the Safe Streets and Communities Act create a distinction based on a discriminatory ground enumerated in subsection 15(1). (17) As Professor Sheehy notes, a distinction can be created if a law has a disparate impact on a population because the law affects this population in a disproportionate manner or because the population "will feel particularly harsh effects emanating from the [law]". (18) For example, in R vM(C), (19) the Ontario Court of Appeal found that section 159 of the Criminal Code? (20) which used a higher age of consent for anal intercourse than that used for other forms of sexual intercourse, had a discriminatory effect on homosexual men. (21)

      Similar facially neutral laws (22) have been held to unconstitutionally distinguish between Aboriginal and non-Aboriginal offenders. (23) As will be shown later in this article, the mandatory minimum prison sentences for drug offences under the Safe Streets and Communities Act create a comparable distinction. They affect Aboriginal peoples in a disproportionate manner and impose particularly harsh effects on this population.

      Moreover, aboriginality, or race more generally, is an enumerated ground under subsection 15(1). (24) The drug sentencing provisions of the Safe Streets and Communities Act therefore create a distinction based on an enumerated ground, satisfying the first element of subsection 15(1).

   2. THE DISTINCTION PERPETUATES GROUP DISADVANTAGE AND PREJUDICE

      Under the second element of the subsection 15(1) test, the courts must determine whether the distinction imposes a disadvantage on the basis of stereotyping or has the effect of perpetuating group disadvantage and prejudice. Since the drug sentencing provisions of the Safe Streets and Communities Act are facially neutral, they do not impose a disadvantage on the basis of stereotyping. The laws do, however, have the effect of perpetuating group disadvantage and prejudice. To examine this effect, it must be broken down into its two constituent parts: the existence of group disadvantage and prejudice, and the perpetuation of group disadvantage and prejudice.

      1. THE EXISTENCE OF GROUP DISADVANTAGE AND PREJUDICE

         The existence of group disadvantage and prejudice against Aboriginal peoples logically presumes that this population suffers from a preexisting disadvantage compared to non-Aboriginal peoples. The existence of such a disadvantage is a strongly weighted factor in the subsection 15(1) analysis. (25) Social-scientific data, academic commentary, and criminal jurisprudence indicate that Aboriginal peoples are disadvantaged by the criminal justice system, particularly with regard to the use of incarceration.

         (a) Social-Scientific Data

         Statistically, Aboriginal peoples are overrepresented in the federal and provincial prison systems. In 2007-08, Aboriginal adults accounted for 22% of all admissions to adult correctional services who were sentenced to custody, while representing just 3% of the Canadian population. (26) This correlation is most pronounced in the Western provinces. In Alberta in 2007-08, for example, the incarceration rate for Aboriginal adults aged 20 to 34 years was 9.3 times higher than the incarceration rate of similarly aged non-Aboriginal adults. (27)

         (b) Government Reports and Academic Commentary

         Government reports, (28) academic commentators, (29) and a wide assortment of studies (30) suggest that Aboriginal peoples are over-incarcerated. The Report of the Aboriginal Justice Inquiry of Manitoba, a government report, provides the flavour of this line of commentary:

         Why, in a society where justice is supposed to be blind, are the inmates of our prisons selected so overwhelmingly from a single ethnic group? Two answers suggest themselves: either Aboriginal people commit a disproportionate number of crimes, or they are the victims of a discriminatory justice system. We believe that both answers are correct, but not in the simplistic sense that some people might interpret them. We do not believe, for instance, that there is anything about Aboriginal people or their culture that predisposes them to criminal behaviour. Instead, we believe that the causes of Aboriginal criminal behaviour are rooted in a long history of discrimination and social inequality that has impoverished Aboriginal people and consigned them to the margins of society. (31) The academic commentary echoes and adds to this sentiment. For example, Professor Rudin commented in 2009:

         In some provinces, youth jails are almost exclusively the preserve of Aboriginal young people--and all across the country these figures are rising as well. If the tide is rising in youth custodial facilities then there is no reason to think that the rise in overrepresentation in adult facilities will subside any time soon. If Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today? (32) The academic commentary is unanimous in the conclusion that legislative and judicial action ought to be taken to remedy this over-incarceration. While there is some dissent as to how action ought to be taken, the prevailing consensus is that sentencing judges must address the unique circumstances of Aboriginal offenders. (33)

         (c) Criminal Jurisprudence

         In 1996, Parliament attempted to remedy the disadvantage faced by Aboriginal offenders at the sentencing stage by amending the sentencing scheme of the Criminal Code. (34) Among other changes, Parliament introduced paragraph 718.2(e), which states that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders." (35) The Minister of Justice explained the purpose of the concluding words of the section at the House of Commons Standing Committee on Justice and Legal Affairs:

         [T]he reason we referred specifically there to aboriginal persons is that they are sadly overrepresented in the prison populations of Canada. . . . What we're trying to do, particularly having regard to the initiatives in the aboriginal communities to achieve community justice, is to encourage courts to look at alternatives where it's consistent with the protection of the public--alternatives to jail--and not simply resort to that easy answer in every case. (36) The SCC acknowledged Parliament's purpose in R v Gladue, (37) a case in which the Court interpreted paragraph 718.2(e). The Court began its interpretation by documenting the overrepresentation of Aboriginal...