Mandatory minimum sentencing and its effects on Indigenous women

Mandatory minimum sentencing has always been a controversial topic in Canadian law. It requires a judge to sentence an individual to a determined length of prison time based on the severity of the crime.

I suppose, in theory, mandatory minimum sentences seemed like a good idea to ensure the worst crimes were dealt with accordingly. However, as time goes on, we see that these mandatory sentences are not only problematic for the fact that they are cruel, but also because they disproportionately impact minorities. And more specifically, Indigenous peoples.

Colonialism in Canada and its effects on the Indigenous population have long been a topic of conversation. The Indian Act, Residential schools and the 60s Scoop are just a few examples of the way the Canadian government has contributed to intergenerational trauma amongst the Indigenous population. And now, mandatory minimum sentencing, which disproportionately affects minorities, is another way the government is perpetuating the vicious cycle of this trauma.

And the group most affected by mandatory minimum sentences are Indigenous women.

As of May 6, 2022, Indigenous women account for half of all women in federal prisons, yet represent fewer than 4% of women in Canada.

Now just think about that statistic for a second. Canada has a population of nearly 37 million people. Out of those 37 million, only about 1.4 million are Indigenous women. There are only 1.4 million Indigenous women in Canada, and yet, they account for half, 50%, of all women in federal prisons.

How could this be possible? A big contributor responsible for such a harrowing statistic is mandatory minimum sentencing.

In general, 85% of all women in federal prisons have histories of physical and or sexual abuse, and 91% of Indigenous women alone.

When it comes to reporting an assault, women in general have a hard time coming forward due to the fear of not being believed. It is a very real fear, and numerous stats and reports show that the fear is a logical one.

But Indigenous women specifically suffer the most when it comes to reporting such crimes, as police often make them feel like what happened to them was their own fault, or believe the women, themselves, are the problem. This has horrible consequences, and it leaves these women feeling like they have no one to turn to and therefore have to find ways to protect themselves and their children.

And then, the system that failed them in the first place, criminalizes the women for the steps they are required to take because of the lack of support and resources available to them.

In 2016, the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) was launched, to try and end the high levels of violence against Indigenous women.

The inquiry found that “The Canadian justice system criminalizes acts that are a direct result of survival for many Indigenous women. This repeats patterns of colonialism because it places the blame and responsibility on Indigenous women and their choices, and ignores the systemic injustices that they experience, which often lead them to commit crimes.”

Indigenous women are hung out to dry by the justice system from the very beginning, even before they come forward to report an assault, because of racist, sexist stereotypes that are imposed upon them.

When you look at mandatory minimum sentencing from this perspective, it makes it all the more problematic.

For example, if an Indigenous woman is forced to defend herself after the system fails her, and her defending herself results in the death of her abuser, she will be criminalized and tried for murder.

It doesn’t matter if she was defending herself, or if it was accidental, the justice system does not care, it just sees her as another statistic and she will end up behind bars.

And the most heart-breaking part about all of this is that due to their own internalized racism, these women often believe it is their own fault, and because most lawyers who represent these women do not inform them of their rights, they take the blame for what happened.

The only people that mandatory minimum sentencing benefits are crown prosecutors, who see mandatory sentences as the perfect bargaining tool. While judges are trained to use discretion to determine an appropriate sentence for specific situations, mandatory minimum sentences take all that power away from judges and put it in the hands of the crown, who are often more concerned with garnering a conviction than ensuring a sentence is justified and fitting.

What about section 718.2(e) of the Criminal Code

Due to the generational trauma, the Canadian government has caused Indigenous peoples, there is a section in the Criminal Code, Section 718.2(e), which requires consideration of an individual’s Indigenous history as part of the process for determining a fair and just sentence.

However, mandatory minimum sentencing does not allow for this consideration to be made by the judges who are overseeing the cases, and this only increases the risk of Indigenous women being sentenced to unfair punishments.    

Most lawyers who represent Indigenous women do not understand the importance and relevance of a history of abuse to defend their cases. In some cases, due to the traumatic experiences of not being believed in the first place when reporting abuse, women are afraid and hesitant to speak with their lawyers and relay the important information that could benefit their case.

The National Inquiry into MMIWG determined that ‘when Indigenous women are incarcerated because of violent crime, it is most often a response to the violence they experience.’

This is something judges could take into consideration when determining an appropriate sentence, but again, because of mandatory minimum sentencing, that discretion is taken away.

Alternative sentences cannot be considered

Not only does mandatory minimum sentencing force judges to impose certain punishments on Indigenous women, it also takes away their ability to consider alternations to punitive sentences.

The National Inquiry also found that “Mandatory minimum sentences are especially harsh for Indigenous women, girls, and 2SLGBTQQIA people as [section 718.2(e)] … cannot be applied.” Instead of the Canadian legal system taking steps to help find alternatives to mandatory minimum sentences, and ways to better support Indigenous women to help them reintegrate into society, the people in power instead create spaces within prisons they believe will accommodate Indigenous women. This could include Indigenous teachings or ceremonies, in colonial prisons.

The life sentence after the prison sentence

Mandatory minimum sentences do not just impose an unfair prison sentence on Indigenous women, but a life sentence as well. Because once these women are released from prison, they face the ongoing risk of being sent back to prison.

They live under a microscope and often face very isolating parole conditions that keep them from their family and friends. If conditions are breached, even for reasons such as desperation or by accident, they can be sent right back to prison for menial reasons, and not because they are a risk to society.

This creates the vicious cycle of women being forced away from their children, their children ending up in foster care and therefore increasing the likelihood of those children ending up in prison. This forced separation of mother and child only ensures the generational trauma in Indigenous communities will continue on an ongoing loop, and as long as that is the case, the colonial agenda in Canada will remain at large.

Mandatory minimum sentences, in general, are problematic within the Canadian legal system. When you factor in all the disadvantages, racism and sexism Indigenous women constantly face, mandatory minimum sentences are more than just problematic, they are a huge part of the ongoing injustices that result in the overrepresentation of Indigenous women in Canadian federal prisons.

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