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

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

I. 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)

II. 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.

A. 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).

B. 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 peoples in the criminal justice system. (38) It held that widespread discrimination, (39) alongside other adverse socioeconomic factors, serves as the source of Aboriginal overrepresentation in the criminal justice system in general and the prison system in particular. (40) Equally, the Court recognized that incarceration disproportionately disadvantages Aboriginal peoples. (41)

With all of these disadvantages considered, the Court called for a judicial remedy to the overrepresentation of Aboriginal peoples in the criminal justice system:

   These findings cry out for recognition of the magnitude and gravity
   of the problem, and for responses to alleviate it. The figures are
   stark and reflect what may fairly be termed a crisis in the
   Canadian criminal justice system. The drastic overrepresentation of
   aboriginal peoples within both the Canadian prison population and
   the criminal justice system reveals a sad and pressing social
   problem. It is reasonable to assume that Parliament, in singling
   out aboriginal offenders for distinct sentencing treatment in s.
   718.2(e), intended to attempt to redress this social problem to
   some degree. The provision may properly be seen as Parliament's
   direction to members of the judiciary to inquire into the causes of
   the problem and to endeavour to remedy it, to the extent that a
   remedy is possible through the sentencing process. (42)


The Court fashioned a robust remedy in the form of a sentencing framework for Aboriginal offenders under paragraph 718.2(e). The framework has two components. First, the judiciary must consider the unique systemic or background factors that may have played a part in bringing a particular Aboriginal offender before the courts. Second, the judiciary must consider the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of her or his particular Aboriginal heritage or connection. (43) Taken in tandem, these two factors require the judiciary to exercise restraint where possible when determining whether to incarcerate an Aboriginal offender. The Court stressed that this framework must be applied in respect of all Aboriginal offenders. (44)

When Gladue was decided in 1999, the Court described the over-incarceration of Aboriginal peoples as "a crisis". (45) As the SCC recently noted, the situation has only worsened since then. (46) Over the past 13 years, the representation of Aboriginal peoples among all adults sentenced to custody in Canada has increased. (47) The need for sentencing judges to remedy the overincarceration of Aboriginal offenders, therefore, has not attenuated. In fact, it is more pressing today than it was in 1999. (48)

In sum, the over-incarceration of Aboriginal peoples is a disadvantage against this group in comparison to non-Aboriginals. This constitutes an existing "group disadvantage and prejudice" within the meaning of subsection 15(1).

2. THE PERPETUATION OF GROUP DISADVANTAGE AND PREJUDICE

In considering whether mandatory minimum prison sentences for drug offences under the Safe Streets and Communities Act perpetuate disadvantage and prejudice against Aboriginal peoples, the courts will place great weight on the nature of the interest affected. (49) The more severe and localized the consequences of the impugned laws, the greater the chance that they will be deemed to violate subsection 15(1). For example, in Egan v Canada (50) the applicant sought a declaration that a provision of a federal statute violated subsection 15(1) of the Charter on the basis that the provision allowed for a "spousal allowance" for heterosexual spouses but not same-sex spouses. Justice L'Heureux-Dube held that in this instance, "[i]f all other things are equal, the more severe and localized the economic consequences on the affected group, the more likely that the distinction responsible for these consequences is discriminatory within the meaning of s. 15 of the Charter." (51) Since mandatory minimum sentences inherently affect the liberty interest of Aboriginal peoples, (52) the degree to which the laws will be allowed to perpetuate the existing disadvantage and prejudice against this group will be minimal. Even a slight perpetuation of the over-incarceration of Aboriginal peoples is likely to amount to a subsection 15(1) violation.

As a matter of logic, the mandatory minimum prison sentences for drug offences under the Safe Streets and Communities Act will perpetuate over-incarceration if they achieve two ends. First, they must target criminal activity for which Aboriginal peoples are likely to be charged and convicted. Second, they must ensure that Aboriginal peoples are incarcerated for this activity.

(a) Aboriginal Peoples Are Likely to Be Charged and Convicted Under the Impugned Laws

As noted earlier, the Safe Streets and Communities Act creates mandatory minimum sentences for specific drug-trafficking offences, targeting, among others, repeat drug traffickers and traffickers that operate on behalf of criminal organizations. The Canadian policing approach to race-based statistics is quite different than the approach taken in the United States: in Canada police forces generally do not collect data on the race of persons who are charged or arrested. (53) There is a resulting dearth of race-based statistics on the number of Aboriginal people arrested or convicted for drug offences in Canada. Still, social scientists have collected data on this issue through more indirect data-gathering techniques, such as surveys and interviews. Through the use of these methods, social-science literature has long observed a nexus between drug trafficking and Aboriginal peoples. (54)

Within the prison system, the picture is more complex. While Aboriginal offenders are overrepresented in Canada's prison system, a greater proportion of non-Aboriginal offenders are incarcerated for drug offences than Aboriginal offenders. (55) At first glance, this suggests that Aboriginal peoples are not prejudiced by the drug sentencing provisions of the Safe Streets and Communities Act relative to their comparison group. However, there are three reasons Aboriginal peoples are likely to be prejudiced by these sentencing provisions to a greater extent than non-Aboriginals. Furthermore, in spite of the dearth of race-based statistics in Canada, these three reasons also suggest that Aboriginal offenders are equally or more likely to be arrested, charged, and convicted under the impugned laws than non-Aboriginal offenders.

First, the number of Aboriginal offenders incarcerated for drug offences is a reflection of the reduced use of incarceration demanded by paragraph 718.2(e) and Gladue. Mandatory minimum sentences will eliminate the discretion afforded to judges under these two heads of power. This will result in an increased use of incarceration against Aboriginal peoples. Indeed, the proportion of Aboriginal offenders incarcerated for drug offences could surpass that of non-Aboriginals under a regime of mandatory minimum sentences.

Second, Aboriginal peoples are often subject to racial profiling by law-enforcement officers. For example, in a short-lived experiment by the Kingston Police Force, data was collected on the race of persons stopped and arrested. Aboriginal pedestrians were 1.4 times more likely to be stopped than white pedestrians. (56) Furthermore, through an analysis of victimization, police, and correctional surveys, the federal government reports that Aboriginal offenders are five times more likely to be arrested for more serious reasons than non-Aboriginals are. (57) Professor Sheehy notes that reports of major drug arrests indicate that Aboriginal reserve lands "may in the future be subject to targeted surveillance" for drug production. (58) Not only is racial profiling likely to disproportionately incriminate Aboriginal peoples, thereby increasing or maintaining their rate of incarceration, but it has also been held to violate subsection 15(1) on its own. (59)

Third, it is likely that the mandatory minimum sentence for trafficking drugs on behalf of a criminal organization will disproportionately capture Aboriginal gang members. A disproportionate number of young Aboriginal adults are involved in organized crime. As well, police statistics show that in 2008 a disproportionate number of young gang members across Canada were Aboriginal (22%). (60) Granted, without the collection of race-based data by Canadian police forces, it is impossible to determine precisely what proportion of young Aboriginal gang members are arrested or convicted for drug offences. (61) However, criminological literature documents a history of significant correlation between drug trafficking and Aboriginal gangs. (62)

What is more, Aboriginal peoples form a core part of the nexus between poverty and the drug-trafficking trade in Canada. The Canadian Council on Social Development reported in 2003 that Aboriginal peoples in urban areas were more than twice as likely to live in poverty as non-Aboriginal people in urban areas. (63) In cities such as Regina where there was a larger Aboriginal population, Aboriginal people accounted for 24% of the poor; this was more than three times their proportion of the city's population. (64) Professors Scott Wortley and Julian Tanner observe that poverty is a factor that spurs young people to join the drug trade, (65) and Aboriginal young people are no exception.

Furthermore, Aboriginal gangs are acutely racially profiled. (66) In R v B(K), (67) for instance, an officer in the Winnipeg Police Service Gang Unit testified that he spot-checks 5 to 20 suspected Aboriginal gang members per day. (68) The trial judge held that "such checks were a regular practice of at least some members of the Winnipeg Police Service." (69) The Manitoba Court of Appeal held that these checks demonstrated "guilty by association" reasoning. (70) This type of discriminatory policing again suggests that the mandatory minimum sentence for trafficking narcotics on behalf of a criminal organization could disproportionately capture Aboriginal gang members.

This is not to imply, however, that young Aboriginal people are likely to be criminals, or that young and poor Aboriginal drug traffickers are likely to be members of organized crime. The only inference to be drawn from these studies is that young Aboriginal adults are more likely than their non-Aboriginal counterparts to be involved in organized crime; if "Aboriginal gangs" constitute "organized crime" as that term is legally defined, (71) a correlation exists which may make some of these gang members subject to the mandatory minimum penalties for drug trafficking. This vulnerability to the penalties is exacerbated by discriminatory policing techniques.

A section 15 claim against the drug sentencing provisions of the Safe Streets and Communities Act is likely to encounter the most difficulty at this stage of the analysis. Historically, section 15 claims have foundered from a lack of evidence proving that the burden created by the state perpetuates the disadvantage or prejudice of the litigant's group. (72) In Symes v Canada, (73) for example, the litigant challenged a federal tax provision that limited the tax deduction for child-care expenses. (74) The litigant argued that the tax provision adversely discriminated against women because women disproportionately bear the burden of child care in society. The claim ultimately foundered at the SCC due to a lack of evidence. Justice Iacobucci, writing for the majority of the Court, held:

   In my view, in order to establish such an effect, it is not
   sufficient for the appellant to show that women disproportionately
   bear the burden of child care in society. Rather, she must show
   that women disproportionately pay child care expenses.... [I]t is
   difficult to imagine how such statistics could arise. (75)


A section 15 claim against the drug sentencing provisions of the Safe Streets and Communities Act benefits from the wealth of statistics that document how Aboriginal persons are equally or more likely to be arrested, charged, and convicted under these provisions than are non-Aboriginal offenders. However, these statistics prove no more than correlations and, in many instances, the correlations are tenuous due to small or otherwise flawed samples. Therefore, while a potential claimant could demonstrate that Aboriginal peoples are likely to be adversely impacted by the impugned law more than non-Aboriginals, they cannot prove that this will happen. Furthermore, due to the lack of race-based police data, the litigant cannot prove that this does happen. The lack of evidence could prove fatal to the section 15 claim.

(b) Aboriginal Peoples Are Certain to Be Incarcerated under the Impugned Laws

The SCC has foreclosed judges from overriding mandatory minimum sentences (76) and granting constitutional exemptions when a mandatory minimum sentence is implicated (77) if the mandatory minimum sentencing provision is constitutional. As a result, every Aboriginal person who commits a drug offence that carries a mandatory minimum prison sentence as a result of the Safe Streets and Communities Act will be incarcerated upon conviction if the sentencing provisions do not violate the Charter.

This degree of incarceration flies in the face of the social-scientific data and academic commentary that calls for restraint when sentencing Aboriginal offenders. Mandatory minimum sentences are equally contrary to the direction for alternative sanctions given by Parliament in paragraph 718.2(e) and the SCC in Gladue. (78) Indeed, the Gladue sentencing framework was designed in part to remedy over-incarceration of Aboriginal peoples, (79) discrimination, (80) and the adverse effects of incarceration on Aboriginal peoples. (81) As Professor Larry Chartrand notes, "it follows that any statutory provision that denies Aboriginal offenders the benefit of [this remedial sentencing framework] is in itself discriminatory." (82) Due to their repudiation of paragraph 718.2(e) and Gladue, then, the mandatory minimum prison sentences for drug offences under the Safe Streets and Communities Act violate section 15(1).

This concern was not lost on some lawmakers during the consideration of Bill C-15, (83) a precursor to the Safe Streets and Communities Act. Bill C-15 proposed to create the same mandatory minimum prison sentences for specific drug crimes as those that now exist under the Safe Streets and Communities Act. Senator Joan Fraser, among others, advised that Bill C-15 would discriminate against Aboriginal peoples:

   Now we come to the matter of Aboriginal offenders. Surely there can
   be no more serious question for members of this chamber to
   consider. As we know, the Criminal Code now requires judges, when
   levying sentences, to take into account "all available sanctions
   other than imprisonment that are reasonable in the circumstances
   ... with particular attention to the circumstances of aboriginal
   offenders." There have been numerous court decisions on this
   language, including, but not only, the Gladue case.

   That was written 10 years ago, honourable senators, and let me tell
   you, the problem is worse today.

   Existing measures in the Criminal Code clearly have not solved the
   problem. However, Bill C-15, as it came to us, would have
   eliminated even that protection for Aboriginals and what the
   Supreme Court has termed their unique circumstances. (84)


Australia's experience with mandatory minimum sentences suggests a similar caution. (85) Professor Martin Flynn of the University of Western Australia has warned that mandatory minimum sentences violate the principle of equality for Australia's Aboriginal peoples under articles 1(1), 2, and 5 of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) :

   The Preamble and articles 1(1), 2 and 5 of CERD prohibit acts which
   have a discriminatory purpose or effect. The effect of mandatory
   sentencing laws is that the court must ignore racial factors that
   are relevant to sentencing. The effect is to violate the right to
   equal treatment before the tribunals administering justice. Equal
   treatment before courts administering justice in Western Australia
   and the Northern Territory requires consideration of the different
   impact of sentencing options on different racial groups. The
   persistence of mandatory sentencing legislation in Western
   Australia and Northern Territory ensures the disproportionate
   imprisonment of Aboriginal people in those jurisdictions. (86)


Professor Flynn's remark is apposite for subsection 15(1) of the Charter. Like Australia, Canada is a signatory of the CERD. Further, article 5(a) of the CERD contains the same concept of substantive equality as subsection 15(1) of the Charter. (87)

Statistics indicate that the mandatory minimum prison sentences for drug offences under the Safe Streets and Communities Act will contribute not only to the incarceration of Aboriginal offenders who may not have otherwise been incarcerated for drug-trafficking crimes, but also to the reincarceration of Aboriginal offenders once they are released from prison. Despite the fact that offenders convicted of drug crimes are among the least likely offenders to be re-incarcerated, Aboriginal offenders are more likely than non-Aboriginal offenders to return to correctional facilities after being previously incarcerated. (88) Moreover, a Juristat study that examined offenders in Saskatchewan over a period of four years revealed that the rate at which Aboriginal offenders in that province return to correctional facilities is higher during their first 12 months of release than non-Aboriginal offenders. (89) And, most poignantly, among all Aboriginal offenders who are given a sentence involving custody and community involvement, more offenders released from custody are returned to correctional facilities than those released from a community program. (90) Hence, without the benefit of a non-custodial sentence in certain circumstances under the Safe Streets and Communities Act, Aboriginal offenders are more likely to recidivate once they are released from custody.

i. Confusion clarified: Paragraph 718.2(e) and Gladue apply to every Aboriginal offender

Much confusion has arisen from the SCC's statement in Gladue that "[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing." (91) In the subsequent decision of R v Wells, (92) Justice Iacobucci, writing for a unanimous Court, stated that there is a practical limitation on Gladue in cases involving serious and violent crime. Justice Iacobucci justified this limitation on the basis that the sentencing principles of denunciation and deterrence take on increased importance in these cases. (93)

Recently, in R v Ipeelee, (94) the SCC rejected the suggestion that the case law allows for the limited application of Gladue where an Aboriginal offender is sentenced for a so-called "serious offence". Ipeelee involved two Aboriginal offenders who were each subject to long-term supervision orders (LTSOs) due to their extensive criminal records. Both offenders breached their LTSOs. The Court was tasked with determining how to sentence these offenders in light of their Aboriginal status. The Court described Ipeelee as an opportunity to "resolve ... misunderstandings, clarify certain ambiguities, and provide additional guidance so that courts can properly implement [paragraph 718.2(e)]." (95) With respect to the application of Gladue to "serious offences" the Court held that

   a sentencing judge's failure to apply s. 718.2(e) in the context of
   serious offences raises several questions....[W]hat offences
   are to be considered 'serious' for this purpose? As Ms. Pelletier
   points out:

   "Statutorily speaking, there is no such thing as a 'serious'
   offence. The Code does not make a distinction between serious and
   non-serious crimes. There is also no legal test for determining
   what should be considered 'serious"' .... Trying to carve out an
   exception from Gladue for serious offences would inevitably lead to
   inconsistency in the jurisprudence due to "the relative ease with
   which a sentencing judge could deem any number of offences to be
   'serious"'[.] (96)


The Court emphasized that sentencing judges have a statutory duty to consider the unique circumstances of Aboriginal offenders and a "[f]ailure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation." (97) Such a failure will produce an unfit sentence that is inconsistent with the fundamental sentencing principle of proportionality in every case. (98)

Although Ipeelee is a resounding direction to apply Gladue in every sentencing decision involving an Aboriginal offender, it should not be read too broadly. LTSOs do not carry a mandatory minimum sentence. There is a passage in Ipeelee that states that "the entire range of sentencing options is open to a sentencing judge, including non-carceral sentences" where minimum sentences are not mandated by statute. (99) This passage suggests contention regarding whether Gladue can, or should, be applied when a sentence is governed by a mandatory minimum provision.

Moreover, it can be argued that paragraph 718.2(e) and Gladue provide space for mandatory minimum sentences. In describing how judges are to arrive at a fit sentence, the Court stated in Gladue:

   The role of the judge who sentences an aboriginal offender is, as
   for every offender, to determine a fit sentence taking into account
   all the circumstances of the offence, the offender, the victims,
   and the community. Nothing in Part XXIII of the Criminal Code
   alters this fundamental duty as a general matter. However, the
   effect of s. 718.2(e), viewed in the context of Part XXIII as a
   whole, is to alter the method of analysis which sentencing judges
   must use in determining a fit sentence for aboriginal offenders.
   Section 718.2(e) requires that sentencing determinations take into
   account the unique circumstances of aboriginal peoples. (100)


Read carefully, the Court's words suggest that a judge need not examine the unique circumstances of an Aboriginal offender before considering all other factors. Rather, a judge need only include this examination in their overall determination of a fit sentence. This carves out an analytic space for the judiciary to consider mandatory minimum prison sentences as well as paragraph 718.2(e) and Gladue.

After a mandatory minimum prison sentence has been applied, a judge can consider the unique circumstances of the Aboriginal offender to determine whether additional sanctions, namely further incarceration, should be applied. This line of analysis was perhaps in the Court's mind in Gladue when it described the appropriate use of incarceration for Aboriginal offenders:

   Clearly there are some serious offences and some offenders for
   which and for whom separation, denunciation, and deterrence are
   fundamentally relevant.

   Yet, even where an offence is considered serious, the length of the
   term of imprisonment must be considered. In some circumstances the
   length of the sentence of an aboriginal offender may be less and in
   others the same as that of any other offender. (101)


The locus of this argument was adopted by Justice Rothsetin in Ipeelee. Justice Rothstein partially dissented in the judgment by concluding that the paramount consideration of an LTSO is the protection of society and that, as a result, a sentencing judge "may have no alternative but to separate the Aboriginal long-term offender from society for a significant period of time." (102) In Justice Rothstein's view, paragraph 718.2(e) and Gladue can be given effect in such cases through the provision of rehabilitative custodial programming: "[D]uring the period of incarceration, the Aboriginal status of the long-term offender should be taken into account for the purpose of providing appropriate programs that are intended to rehabilitate the offender". (103) Hence, under Justice Rothstein's formulation, an Aboriginal offender's circumstances are not taken into account in determining the length of incarceration but are reflected in the incarceration's nature.

The broader argument--that there is analytic space for the judiciary to consider mandatory minimum prison sentences as well as paragraph 718.2(e) and Gladue--suggests that mandatory minimum prison sentences, such as the drug sentencing provisions of the Safe Streets and Communities Act, can allow for the application of paragraph 718.2(e) and Gladue. Although these sentencing provisions will contribute to the over-incarceration of Aboriginal peoples, they will do so in a manner that takes the unique circumstances of Aboriginal offenders into account at the sentencing stage--the same way that every other criminal law does. It follows that the impugned laws under the Safe Streets and Communities Act may not in fact violate subsection 15(1).

Still, this argument is premised on the prioritization of sentencing principles in a situation that has not been directly considered in the case law. Two statutory provisions are at odds with one another: the statute prescribing a mandatory minimum sentence, which stresses denunciation and deterrence, and paragraph 718.2(e), which stresses rehabilitation and restoration. It is unclear which statute should be given priority. Although Ipeelee appeared to foreclose the possibility of considering non-carceral sentencing options when a mandatory minimum prison sentence is involved, this comment was obiter. What is more, the section of the judgment in which this comment was made only discussed general sentencing principles. (104) Paragraph 718.2(e) and Gladue were considered later in the judgment. (105) It does not appear that Ipeelee directly considered or decided upon the prioritization of sentencing principles when mandatory minimum prison sentences, paragraph 718.2(e), and Gladue are involved.

Judicial consideration of this issue is critical because, again, the imposition of mandatory minimum prison sentences contributes to the over-incarceration of Aboriginal peoples, a disadvantage and prejudice in the context of subsection 15(1). In addition, mandatory minimum prison sentences, unlike other carceral sentences, imprison Aboriginal offenders before or in exclusion to the application of paragraph 718.2(e). If the courts hold that this manner of sentencing repudiates paragraph 718.2(e), mandatory minimum prison sentences will perpetuate the disadvantage and prejudice faced by Aboriginal peoples contrary to subsection 15(1). Conversely, if the courts hold that this does not repudiate paragraph 718.2(e), mandatory minimum prison sentences will, like all other carceral sentences, not violate subsection 15(1).

Interestingly, analogous case law on this issue is unsettled. The case law does nevertheless provide direction for how the courts might balance competing arguments.

ii. Analogous case law

In R v King, (106) the Ontario Court of Justice found that a mandatory minimum prison sentence violated the section 15 Charter rights of an Aboriginal offender. The offender was convicted of impaired driving contrary to paragraph 253(a) of the Criminal Code. The Crown issued a notice under section 727 of the Criminal Code that ostensibly required the judge to impose a minimum penalty of 90 days' imprisonment. The offender argued that his section 15 Charter rights were violated by this penalty because it precluded the judge from considering paragraph 718.2(e). (107)

   The Crown countered that the mandatory minimum sentence did not
   render paragraph 718.2(e) inoperative because the judge could still
   use it in determining how much above the mandatory minimum sentence
   the offender ought to be sanctioned. (108) The Court rejected this
   submission, holding that this submission does not address the
   alleged negation of s. 718.2(e) because it does not address the
   point that paying particular attention to the circumstances of
   aboriginal offenders is tied to the words, 'all available sanctions
   other than imprisonment . . . should be considered'. The mandatory
   consideration of an aboriginal offender's particular circumstances
   relates not only to the decision to impose imprisonment, or the
   length of imprisonment, but also to the possibility of there being
   no imprisonment. (109)


King stands for the proposition that a mandatory minimum sentence repudiates paragraph 718.2(e) if it prevents a judge from considering alternative sanctions to imprisonment.

The opposite conclusion was reached by the Ontario Superior Court of Justice in R v Bressette.. (110) In this case an Aboriginal offender pleaded guilty to a weapons offence for which there was a mandatory minimum prison sentence. For the same reasons as in King, the offender argued that this sentence violated subsection 15(1). The Court held that mandatory minimum sentences are not contrary to subsection 15(1) of the Charter merely because they fetter a trial judge's discretion. (111) The Court explained:

   The fact that an Aboriginal individual must start from a one year
   inflationary period of incarceration because of a mandatory
   minimum, does not negate sentencing principles within s. 718.2 of
   the Criminal Code including s. 718.2(e). As stated by Justice
   Arbour, there is a maximum ceiling that is reflected in these
   firearm related offences, which obviously allows a trial judge
   significant latitude to tailor an appropriate penalty reflecting
   both the circumstances of the offence and the personal
   circumstances of the accused. (112)


For this reason, the Court held that subsection 15(1) was not violated by the mandatory minimum sentence.

In a less related and more anomalous decision, R v Johnson, (113) Justice Green of the Ontario Court of Justice considered the effect of the various amendments created by Bill C-25, cited as the Truth in Sentencing Act, (114) on sections 7, 12, and 15 of the Charter for an accused person who was of Aboriginal or African descent. The Truth in Sentencing Act "limits the credit that may be granted to an offender upon sentencing to, at most, one day for each day of his or her pre-sentence custody or, 'if the circumstances justify it,' 1.5 days of credit for each day of pre-sentence custody served by the offender." (115) Prior to the enactment of the Act the conventional metric for the credit applied to pre-sentence custody on sentencing was two to one. Justice Green held that the Act does not create a distinction based on race in violation of section 15 of the Charter, because the legislation applies to all offenders: (116)

   While a disproportionate number of black and native persons may be
   captured by the amendments, they do not distinguish the Applicant
   from other offenders on the basis of his heritage, either in intent
   or effect....Zooming out, the current demographic evidence
   relating to pre-trial custody suggests that detention orders are
   correlated with considerations such as attenuated community ties,
   unemployment and a history of prior criminality. These factors may
   disproportionately characterize members of the black and Aboriginal
   community, but they are present in all racial and ethnic groups and
   are far from universal or defining features of persons sharing
   either of the Applicant's ancestries. (117)


Justice Green's decision adhered to a strict formal-equality conception of section 15. In doing so, the decision embraced a conception of equality that pervades American equality jurisprudence; the decision also ignored the tradition of substantive equality that has pervaded Canadian equality jurisprudence since the 1980s. Seminal decisions such as Little Sisters Book and Art Emporium v Canada (118) and M(C) (119) appear to have been lost on Justice Green. In this respect, Johnson ought to be regarded as an anomalous decision of the Ontario Court of Justice.

Moreover, Johnson is distinguishable on three grounds in its application to a section 15 analysis of the mandatory minimum prison sentences for drug offences under the Safe Streets and Communities Act. First, Johnson involved an accused person who was of Aboriginal and African descent. Justice Green's analysis was thus split in its consideration of the historical disadvantages faced by Aboriginal and African peoples in the criminal justice system. While there are definite parallels between the two groups, Aboriginal peoples share a unique and more egregious set of disadvantages in the criminal justice system. As Professor Carter comments, "poverty and other incidents of social marginalization may not be unique, but how people get there is. No one's history in this country compares to Aboriginal people's." (120) Indeed, this is a foundation on which paragraph 718.2(e) and Gladue are premised. Second, Justice Green was unable to consider a statutory provision that called for restraint in the imprisonment of Aboriginal peoples in his section 15 analysis. Quite the opposite, Justice Green's lone legislation for consideration--the Truth in Sentencing Act--was a direction from Parliament to increase the length for which convicted offenders are imprisoned. Third, Justice Green's section 15 analysis was strictly limited to the effect of Aboriginal and African heritage on pre-trial custody. This limited scope prevented Justice Green from considering paragraph 718.2(e) and Gladue in his decision. Accordingly, Johnson offers no guidance for a section 15 analysis of the drug sentencing provisions of the Safe Streets and Communities Act.

With regard to King and Bresette, the lack of consensus in the case law is likely the result of a confluence of factors, ranging from doctrinal to ideological. On the doctrinal end, until recently paragraph 718.2(e) and Gladue were premised on a different conception of equality than section 15 of the Charter. Paragraph 718.2(e) and Gladue pertain to the attenuation of the incarceration of Aboriginal peoples and reducing their involvement with the criminal justice system. The objective of this jurisprudence is of an a priori nature: it is not dependant on the degree to which other groups of people in Canada are incarcerated or involved with the criminal justice system. Rather, its primary, and arguably only, concern is the number of Aboriginal persons incarcerated or involved with the criminal justice system vis-a-vis the general Aboriginal population.

By contrast, until recently the jurisprudence of section 15 of the Charter was primarily relational. Section 15 has been said to protect from discrimination, or from discriminatory effect, resulting from a government decision over the distribution of burdens or benefits to members of society, not from discrimination per se. (121) Accordingly, if a disparity exists due to the application of a law, section 15 has been said to invite a comparative analysis between differentiated groups. (122)

The incongruence between these conceptions of equality is likely the cause of divergent decisions such as King and Bressette. King subscribes to paragraph 718.2(e) and Gladue's conception of equality. In King the Court attempted to consider the full context of the Aboriginal offender and arrive at an appropriate sentence. There was no intellectual space for the meddling of a mandatory minimum sentence: "equality" was construed to mean equality to the Aboriginal offender vis-a-vis the offender's specific circumstances.

Bressette subscribes to the conception of equality found in Kapp and previous section 15 decisions. In this case the Court arrived at a sentence for the Aboriginal offender by first considering the minimum penalty required for all offenders, Aboriginal and non-Aboriginal alike. The Court's focus on the sentence given to all offenders invited a comparative analysis between the Aboriginal offender and all other offenders in general. "Equality" was construed to mean a consistency in the sentence given to all offenders. The Court could not negotiate the mandatory minimum sentence, since to do so would create an inequality between the sentence received by the Aboriginal offender and other offenders, namely non-Aboriginal offenders, who cannot benefit from Gladue. Hence, the intellectual space for the Court to consider the circumstances of the Aboriginal offender could only be located after the imposition of the mandatory minimum sentence.

It is not surprising that, at least in the past, one could levy a strong criticism that paragraph 718.2(e) and Gladue are inappropriate vehicles through which to advance a section 15 Charter claim: the conception of equality between these two sets of jurisprudence appears to be too incongruous. However the SCC's recent decision of Withler v Canada (Attorney General) (123) likely quells this criticism. In Withler the Court abandoned the comparative analysis that was previously inherent in section 15 cases such as Bressette and returned to a contextualized assessment of equality claims. (124) As Chief Justice McLachlin and Justice Abella explain,

   What is required is not formal comparison with a selected mirror
   comparator group, but an approach that looks at the full context,
   including the situation of the claimant group and whether the
   impact of the impugned law is to perpetuate disadvantage or
   negative stereotypes about that group. (125)


The SCC's fresh direction that section 15 should focus on the full context of the claimant group dovetails nicely with the a priori conception of equality advanced in paragraph 718.2(e) and Gladue. It remains to be determined whether future courts will follow this direction. However, if the courts remain loyal to Withler, then the approach taken in King should win the debate that is currently ongoing in the interplay between paragraph 718.2(e), Gladue, and section 15 of the Charter. Furthermore, adherence to Withler should cement paragraph 718.2(e) and Gladue as useful vehicles through which a section 15 Charter claim can be advanced for Aboriginal criminal offenders.

On the ideological end, a judge's decision could rest, at least in part, on the axis of justice on which his or her political preferences lie. A judge who favours the due-process model of justice (126) is likely to place significant concern and weight on the prevention of the over-incarceration of Aboriginal peoples; he or she would arguably be inclined to find that mandatory minimum prison sentences repudiate paragraph 718.2(e). Conversely, a judge who favours the crime-control model of justice (127) is likely to place significant weight on the principle that a crime must be punished sternly: he or she would arguably be inclined to find that mandatory minimum prison sentences do not repudiate paragraph 718.2(e). With a range of ideological beliefs among the judiciary, it is not surprising that different courts have come to different conclusions. It is likely that this pattern will continue until an appellate court addresses the issue.

It is the opinion of this writer that on the balance of all of the arguments noted in this section of the article, the prevention of the judiciary from considering alternative sanctions to imprisonment repudiates paragraph 718.2(e). Consequently, the mandatory minimum prison sentences for drug offences under the Safe Streets and Communities Act violate subsection 15(1) of the Charter.

III. SECTION 1: JUSTIFYING THE CHARTER VIOLATION

Regardless of whether subsection 15(1) is violated, it is prudent to consider the implications of section 1 of the Charter. A violation of subsection 15(1) will require the government to justify the impugned drug sentencing provisions of the Safe Streets and Communities Act in accordance with section 1. This section provides that Charter rights are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (128) A justification is accepted if the government can satisfy the Oakes test, an analytical tool that weighs the objective of the provision that is in violation of the Charter and its proportional impact on the affected Charter right. (129)

The first step of the Oakes test requires that the government provide a pressing and substantial objective for the Charter violation. The courts generally show deference to the legislator's judgment of the importance of the objective. (130) Between 1986 and 1998 the SCC accepted 97% of the objectives that were put to it. (131) Reviewing the text of the impugned law as well as relevant Hansard excerpts concerning a precursor bill to this legislation (132) reveals that the objective of the law is to reduce the trafficking of specific narcotics, particularly where criminal organizations, repeat offenders, or handguns are implicated. Indeed, the very wording of the law has the effect of incarcerating convicted narcotics traffickers, removing them from society, and, presumably, deterring them and the public from similarly trafficking narcotics in the future. (133) There is no reason to believe that the courts would not accept this objective as sufficiently pressing and substantial.

The second step of the Oakes test requires that the means chosen to achieve the government's objective are proportionate to the burden on the rights claimant. This step has three stages, one of which--the minimal impairment stage--is likely to be determinative for the impugned laws. The laws must impair the subsection 15(1) right of Aboriginal offenders as little as possible. Mandatory minimum prison sentences have been viewed with "constitutional suspicion" by the SCC due to their blunt and "unusual" character. (134) As such, the onus on the government at this stage of the analysis would likely be strictly applied.

Whether the government satisfies this onus may hinge on whether the courts perceive paragraph 718.2(e) to be repudiated by the mandatory minimum sentences. If the courts were to accept that the sentences repudiate paragraph 718.2(e), as in King, the government may fail this stage of the Oakes test, as the automatic imposition of imprisonment would not be seen to minimally impair the equality rights of Aboriginal offenders. After all, the government could have at least provided the discretion for judges to consider alternative sanctions for Aboriginal offenders while still allowing for mandatory prison sentences for non-Aboriginal offenders.

If the courts were to accept that the mandatory minimum sentences do not repudiate paragraph 718.2(e), as in Bressette, the government may not fail the minimal impairment stage. The discretion for trial judges to consider paragraph 718.2(e) in determining additional sanctions to a mandatory minimum sentence could be seen as a sufficiently minimal impairment on the equality rights of Aboriginal offenders. It is not obvious, however, that all courts would accept this. It is contentious that prisons can afford the type of rehabilitative sentence envisioned in Gladue, or that providing discretion to sentencing judges to consider an Aboriginal offender's specific circumstances after they have been incarcerated is sufficient to give effect to paragraph 718.2(e). Incarceration may sometimes be more a severe sanction than a sentence prescribed under the Gladue sentencing framework would allow. In these circumstances, the affordance of discretion to a sentencing judge to consider paragraph 718.2(e) after incarceration has been mandatorily imposed is irrelevant, unless one accepts, as Justice Rothstein did in Ipeelee, (135) that Gladue can be given effect through the provision of rehabilitative custodial programming. Further, some jurists may not accept that custodial programming alone can ever satisfy the requirements of Gladue. For various reasons, then, some courts may find that the impugned law does not minimally impair the equality rights of Aboriginal offenders.

Parenthetically, a related objective of the mandatory minimum prison sentences is the protection of society from the harm of narcotics trafficking. While the government could attempt to argue that mandatory minimum sentences further this objective with minimal impairment on the subsection 15(1) right of Aboriginal peoples, the argument is unlikely to succeed. There is no evidence that less restrictive sanctions, such as probation or conditional sentences, fail to protect society from narcotics trafficking. The current sentencing regime in fact assumes that these sanctions protect society. To assume otherwise would call into question the utility of these measures. Additionally, to the extent that imprisonment protects society better than less restrictive sanctions, a carceral sentence is always available to a sentencing judge who has fully considered the circumstances of an Aboriginal offender. It is a fallacy to accept that Aboriginal offenders receive non-custodial sentences under the Gladue framework in situations where they otherwise "should" receive custodial sentences. The SCC made this clear in Ipeelee:

   Section 718.2(e) does not create a race-based discount on
   sentencing. . . . Gladue is entirely consistent with the
   requirement that sentencing judges engage in an individualized
   assessment of all of the relevant factors and circumstances,
   including the status and life experiences, of the person standing
   before them. Gladue affirms this requirement and recognizes that,
   up to this point, Canadian courts have failed to take into account
   the unique circumstances of Aboriginal offenders that bear on the
   sentencing process. (136)


In light of the strict onus on the government, the courts ought to find that the impugned law does not minimally impair the equality rights of Aboriginal offenders. The line of analysis in King should be followed. Parliament's direction in paragraph 718.2(e) for the judiciary to remedy the over-incarceration of Aboriginal peoples demands that alternatives to incarceration be considered at sentencing. Discretion to consider additional sanctions on top of incarceration is insufficient. Indeed, it is repugnant to the purpose of paragraph 718.2(e). In view of this, the government ought to fail the minimal impairment stage of the Oakes test. This in turn would render its violation of subsection 15(1) unjustified and unconstitutional. The conclusion that would be reached by the courts is not certain, though. Considering the pertinent issue at this stage of the Oakes test--the repudiation of paragraph 718.2(e) by a mandatory minimum sentence--a court's ultimate conclusion could turn, at least in part, on its ideological bias. This factor cannot be measured or predicted--or underestimated. The interplay between paragraph 718.2(e) and mandatory minimum sentences engages politically charged concepts such as racism, colonialism, poverty, victims' rights, and equality. These concepts may colour the way in which a presiding jurist or panel frames the issue. In the opinion of the writer, it would be naive to presume otherwise.

IV. CONCLUSION

In assessing the implications of the Safe Streets and Communities Act on the equality rights of Aboriginal peoples, it is plain from the preceding discussion that Aboriginal peoples are disadvantaged and prejudiced in the criminal justice system, particularly with respect to incarceration. Parliament has attempted to remedy this disadvantage and prejudice at the sentencing stage through the enactment of paragraph 718.2(e) of the Criminal Code. However, this provision is arguably repudiated by the mandatory minimum prison sentences for drug offences under the Safe Streets and Communities Act. If the courts find that paragraph 718.2(e) is in fact repudiated, the mandatory minimum prison sentences for these offences will violate subsection 15(1) of the Charter. Furthermore, though it is not certain, the laws may not be justifiable under section 1 of the Charter.

The courts ought to deem these mandatory minimum prison sentences unconstitutional. Aboriginal peoples must be allowed to benefit from a remedy that was enacted for their equality. The historical and current circumstances of Aboriginal peoples are markedly different from the rest of the population. Aboriginal peoples did not choose to be placed in a situation where the justice system would disadvantage and prejudice them so severely that a sentencing remedy would be necessary. Now that this remedy is available, it is paramount that it be given full effect. To do less would impose further injustice on Aboriginal peoples and deny them the equality guaranteed under the law.

(1) Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts, 1st Sess, 41st Parl, 2011 (assented to 13 March 2012), SC 2012, c 1 [Safe Streets and Communities Act].

(2) Ibid, ss 10 ff.

(3) This article will use the term "Aboriginal peoples" to refer to persons who identified themselves as having an "Aboriginal identity" in the 2006 Canadian Census. The concept of Aboriginal identity within the Census refers to those persons who reported identifying with at least one Aboriginal group (i.e., North American Indian, Metis, or Inuit). Also included are individuals who did not report an Aboriginal identity, but did report themselves as a Registered or Treaty Indian and/or Band or First Nations members. The plural "Aboriginal peoples" is used throughout this article to respect the different cultures encompassed under the general concept of "Aboriginality".

(4) Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

Aboriginal peoples in the criminal justice system. It will then examine Parliament's attempt to remedy this disadvantage and prejudice at the sentencing stage and speculate that the drug-related mandatory minimum prison sentences may counteract Parliament's remedy. Such counteraction will perpetuate the disadvantage and prejudice against Aboriginal peoples, violating subsection 15(1) of the Charter in the process. Furthermore it is likely, though not certain, that the violation cannot be saved under section 1 of the Charter.

(5) See especially R v Bradshaw (1974), 4 OR (2d) 1, 18 CCC (2d) 166 (CA).

(6) Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA].

(7) Safe Streets and Communities Act, supra note 1 at cls 39-16.

(8) CDSA, supra note 6 at Schedules I--II.

(9) Safe Streets and Communities Act, supra note 1, cl 39, amending CDSA, supra note 6 at s 5(3)(a).

(10) 2008 SCC 41, [2008] 2 SCR 483 [Kapp cited to SCC].

(11) Charter, supra note 4 at s 15(1).

(12) Ibid, s 15(2).

(13) See Kapp, supra note 10.

(14) See ibid at para 41; see also ibid at paras 16, 23.

(15) See generally Department of Justice Canada, "Backgrounder: Safe Streets and Communities Act: Increased Penalties for Serious Drug Crimes", online: Department of Justice <http://www.justice.gc.ca>.

(16) See generally Kapp, supra note 10 at para 17.

(17) Ibid. Note that an analogous ground will also suffice.

(18) See Elizabeth Sheehy, "The Discriminatory Effects of Bill C-15's Mandatory Minimum Sentences" (2010) 70:2 CR (6th) 302 at 305. See especially Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69 at para 110, [2000] 2 SCR 1120 [Little Sisters]. See also R v Bob (1991), 3 CR (4th) 348, 88 Sask R 302 (CA); R c Roy [1998] RJQ 1043, 161 DLR (4th) 148 (CA).

(19) (1995), 23 OR (3d) 629, 41 CR (4th) 134 (CA) [(M(C) cited to OR].

(20) Criminal Code, RSC 1985, c C-46.

(21) M(C), supra note 19 at 635-36.

(22) A facially neutral law is one that does not explicitly single out a particular group for differential treatment.

(23) See R v Daniels, [1990] 4 CNLR 51, 12 WCB (2d) 449 (Sask QB).

(24) See generally Lovelace v Ontario, 2000 SCC 37, [2000] 1 SCR 950 (for a discussion on the point that Aboriginality is a subset of "race" in regards to section 15's enumerated grounds).

(25) See Kapp, supra note 10 at para 23. See also Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 at paras 62-68, 170 DLR (4th) 1 [Law].

(26) See Samuel Perreault, "The Incarceration of Aboriginal People in Adult Correctional Services" 29:3 Juristat (Ottawa: Statistics Canada, 2009) at 5.

(27) Ibid at 13.

(28) See Task Force on Aboriginal Peoples in Federal Corrections: Final Report (Ottawa: Minister of Supply and Services, 1988); Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen's Printer for Ontario, 1995).

(29) See e.g. Carol La Prairie, "The Role of Sentencing in the Over-Representation of Aboriginal People in Correctional Institutions" (1990) 32:3 Can J Crim 429; Rupert Ross, "Leaving Our White Eyes Behind: The Sentencing of Native Accused" [1989] 3 CNLR 1; PA Monture-Okanee & ME Turpel, "Aboriginal Peoples and Canadian Criminal Law: Rethinking Justice" (1992) 26:Special Edition UBC L Rev 239; Stephen G Coughlan, "Separate Aboriginal Justice Systems: Some Whats and Whys" (1993) 42 UNBLJ 259; Larry N Chartrand, "Aboriginal Peoples and Mandatory Sentencing" (2001) 39:2&3 Osgoode Hall LJ 449; Julian V Roberts & Ronald Melchers, "The Incarceration of Aboriginal Offenders: Trends from 1978 to 2001" (2003) 45:2 Canadian Journal of Criminology and Criminal Justice 211. An apt list of sources that captures the flavour of the literature is provided in Brian R Pfefferle, "Gladue Sentencing: Uneasy Answers to the Hard Problem of Aboriginal Over-Incarceration" (2008) 32:3 Man LJ 112, at n 3.

(30) See e.g. Law Reform Commission of Canada, The Native Offender and the Law, by Douglas A Schmeiser, Hans WB Heumann & John R Manning (Ottawa: Law Reform Commission, 1974); John Hagan, "Criminal Justice and Native People: A Study of Incarceration in a Canadian Province" (1974) Canadian Review of Sociology and Anthropology 220. A list of studies is provided in Pfefferle, supr note 29 at n 3.

(31) Manitoba, Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People, vol 1 (Winnipeg: Queen's Printer, 1991) at 85 [Aboriginal Justice Inquiry of Manitoba].

(32) Jonathan Rudin, "Addressing Aboriginal Overrepresentation Post-Gladue: A Realistic Assessment of How Social Change Occurs" (2009) 54:4 Crim LQ 447 at 451-52.

(33) See David Daubney, "Nine Words: A Response to 'Empty Promises: Parliament, the Supreme Court, and the Sentencing of Aboriginal Offenders'" (2002) 65:1 Sask L Rev 35; Renee Pelletier, "The Nullification of Section 718.2(e): Aggravating Aboriginal Over-Representation in Canadian Prisons" (2001) 39:2&3 Osgoode Hall L J 469; Kent Roach & Jonathan Rudin, "Gladue: The Judicial and Political Reception of a Promising Decision" (2000) 42:3 Can J Crim 355. Contra Philip Stenning & Julian V Roberts, "Empty Promises: Parliament, the Supreme Court, and the Sentencing of Aboriginal Offenders" (2001) 64:1 Sask L Rev 137; Julian V Roberts & Philip Stenning, "The Sentencing of Aboriginal Offenders in Canada: A Rejoinder" (2002) 65:1 Sask L Rev 75.

(34) Criminal Code, supra note 20.

(35) Ibid, s 718.2(e).

(36) House of Commons Standing Committee on Justice and Legal Affairs, "Bill C-41: An Act to Amend the Criminal Code (Sentencing and Other Acts in Consequence Thereof)" in Minutes of Proceedings and Evidence, No 62 (17 November 1994) at 62:15.

(37) [1999] 1 SCR 688, 171 DLR (4th) 385 [Gladue cited to SCR].

(38) Ibid at paras 58-63.

(39) The Court referred to R v Williams, a case in which it had earlier acknowledged that widespread discrimination against Aboriginal peoples has translated into systemic discrimination in the criminal justice system. See R v Williams, [1998] 1 SCR 1128 at para 58, 159 DLR (4th) 493.

(40) Gladue, supra note 37 at para 65.

(41) Ibid at para 68.

(42) Ibid at para 64.

(43) Ibid at para 93.

(44) Ibid. See also R vBrizard (2006), 68 WCB (2d) 556, 2006 CanLII 5444 (Ont CA).

(45) Gladue, supra note 37 at para 64.

(46) See R v Ipeelee, 2012 SCC 13 at para 62, [2012] 1 SCR 433 [Ipeelee]. See also Justice Harry S LaForme, "The Justice System in Canada: Does It Work for Aboriginal People?" (2005) 4 Indigenous LJ 1 at 15; Pfefferle, supra note 29.

(47) See Perreault, supra note 26.

(48) See generally Ipeelee, supra note 46 at para 62.

(49) See Kapp, supra note 10 at para 23.

(50) [1995] 2 SCR 513 at 556, 124 DLR (4th) 609.

(51) Ibid [emphasis in original].

(52) See generally Reference Re Section 94(2) of the Motor Vehicle Act, [1985] 2 SCR 486 at 520, 24 DLR (4th) 536.

(53) See generally Mandy Cheema, "Missing Subjects: Aboriginal Deaths in Custody, Data Problems, and Racialized Policing" (2009) 14 Appeal 84.

(54) See e.g. Scot Wortley & Julian Tanner, "Respect, Friendship, and Racial Injustice: Justifying Gang Membership in a Canadian City" in Frank van Gemert, Dana Peterson & Inger-Lise Lien, eds, Street Gangs, Migration and Ethnicity (Portland, Or: Willan Publishing, 2008) at 204-07.

(55) See Correctional Service Canada: Research Branch, The Changing Federal Offender Population: Aboriginal Offender Highlights 2009 (Ottawa: Correctional Services Canada, 2009) at 1 [Aboriginal Offender Highlights].

(56) See Tamsin McMahon & Frank Armstrong, "Kingston Police chief 'sorry' for racial profiling", The Kingston Whig-Standard (27 May 2005) 1.

(57) Jodi-Anne Brzozowski, Andrea Taylor-Butts & Sara Johnson, "Victimization and Offending among the Aboriginal Population in Canada" (2006) 26:3 1 at 12.

(58) Sheehy, supra note 18 at 307; see Jan Ravensbergen & Max Harrold, "Raids uncover 8 grow-ops; 13 arrested in Kanesatake; M-35 armoured truck, bulldozer, handguns, and AK-47 ammo seized", The [Montreal] Gazette (20 May 2009) A10.

(59) See especially R vSmith, 123 NSR (2d) 256, 84 CCC (3d) 221 (CA). See generally Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998), 39 OR (3d) 487, 160 DLR (4th) 697 (Gen Div).

(60) Preventing Youth Gang Violence in BC, Promising Practices for Addressing Youth Involvement in Gangs by Mark Totten (Victoria: Ministry of Public Safety and Solicitor General for British Columbia, 2008) at 3.

(61) See generally Cheema, supra note 53.

(62) See e.g. Wortley & Tanner, supra note 54 at 204-07.

(63) John Anderson, "Aboriginal Children in Poverty in Urban Communities: Social Exclusion and the Growing Racialization of Poverty in Canada" (Notes delivered at the Presentation to the Subcommittee on Children and Youth at Risk of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities) (19 March 2003), online: Canadian Council on Social Development <http://www.ccsd.ca/pr/2003/aboriginal.htm>.

(64) Ibid.

(65) Wortley & Tanner, supra note 54.

(66) David M Tanovich, The Colour of Justice: Policing Race in Canada (Toronto: Irwin Law, 2006) at 99-100.

(67) (2003), 175 Man R (2d) 289, [2004] 2 WWR 508 (Prov Ct) [B(K) cited to WWR]

(68) Ibid. See also R vFlett (2002), 168 Man R (2d) 130, [2003] 3 WWR 376 (Prov Ct).

(69) B(K), supra note 67 at paras 43-44.

(70) R v KB, 2004 MBCA 97 at para 50, [2005] 4 WWR 68 MJ No 239 at 507-08. See Tanovich, supra note 66 at 99-100.

(71) See R v Venneri, 2012 SCC 33 at paras 32-35, 39 (available on CanLII) (for the definition of organized crime).

(72) See e.g. Symes v Canada, [1993] 4 SCR 695 at 758-68, 771-72, 110 DLR (4th) 470 [Symes]. See generally Fay Faraday, Margaret Denike & M Kate Stephenson, eds, Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2009) at 179-206.

(73) Symes, supra note 72.

(74) Ibid.

(75) Ibid at 763-64.

(76) See R v Nasogaluak, 2010 SCC 6 at para 55, [2010] 1 SCR 206.

(77) See R v Ferguson, 2008 SCC 6 at paras 67-75, [2008] 1 SCR 96.

(78) Chartrand, supra note 29 at 450.

(79) Gladue, supra note 37 at para 64.

(80) Ibid at para 61.

(81) Ibid at para 68.

(82) Chartrand, supra note 29 at 465.

(83) Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts, 2nd Sess, 40th Parl, 2009 [Bill C-15] (a precursor to the Safe Streets and Communities Act).

(84) Debates of the Senate (Hansard), 2nd Sess, 40th Parl, Vol 146:81 (11 December 2009) at 1350 (Hon Joan Fraser) [Fraser].

(85) See Chartrand, supra note 29.

(86) Martin Flynn, "Mandatory Sentencing, International Law and the Howard/Burke Deal" (2000) 4 Indigenous L Bull 7 at 9 [citation omitted, emphasis removed].

(87) See Chartrand, supra note 29 at 466.

(88) See Sara Johnson, "Returning to Correctional Services after Release: A Profile of Aboriginal and Non-Aboriginal Adults Involved in Saskatchewan Corrections from 1999/00 to 2003/04" (2005) 25:2 Juristat 1 at 11-13.

(89) Ibid.

(90) Ibid at 12.

(91) Gladue, supra note 37 at para 79.

(92) 2000 SCC 10, [2000] 1 SCR 207 [cited to SCC].

(93) Ibid at para 42.

(94) Supra note 46.

(95) Ibid at para 63.

(96) Ibid at para 86 [citations omitted, emphasis in original].

(97) Ibid at para 87. The Ontario Court of Appeal followed this analysis in United States v Leonard, 2012 ONCA 622 (available on CanLII), a case concerning administrative and immigration law. The Court held that the Minister of Justice must give adequate consideration to the Gladue principles when considering an application by an Aboriginal person made under section 7 of the Charter against a surrender order.

(98) Ibid.

(99) Ibid at para 54.

(100) Gladue, supra note 37 at para 75 [emphasis added].

(101) Ibid at paras 78-79.

(102) Ipeelee, supra note 46 at para 131.

(103) Ibid at para 131.

(104) Ibid at para 54.

(105) Ibid at paras 56, 59.

(106) 2007 ONCJ 238, 221 CCC (3d) 71 [King cited to ONCJ].

(107) Ibid at para 51.

(108) Ibid at para 54.

(109) Ibid at para 55 [emphasis in original].

(110) 2010 ONSC 3831, 221 CRR (2d) 183 [Bressette] [emphasis in original]. See also R v Boissoneau, 2006 ONCJ 561 (available on CanLII). In this case, the Court grappled with the theoretical camps championed in King, supra note 106, and Bressette respectively. The Court declined to subscribe to a camp, however, finding instead that regardless of whether subsection 15(1) was violated by the mandatory minimum sentence, the offender had failed to satisfy his requisite evidentiary burden.

(111) Bressette, supra note 110 at para 19.

(112) Ibid at para 20.

(113) 2011 ONCJ 77, 268 CCC (3d) 423 [Johnson cited to ONCJ].

(114) Bill C-25, An Act to Amend the Criminal Code (Limiting Credit for Time Spent in Pre-Sentencing Custody) (Truth in Sentencing Act), 2d Sess, 40th Parl, 2009 (as assented to 22 October 2009) SC 2009, c 29 [Truth in Sentencing Act].

(115) Johnson, supra note 113 at para 3.

(116) Ibid at para 130.

(117) Ibid.

(118) Little Sisters, supra note 18.

(119) M(C), supra note 19.

(120) Mark Carter, "Of Fairness and Faulkner" (2002) 65:1 Sask L Rev 63 at 71 . The Supreme Court quoted this comment in Ipeelee, supra note 46 at para 77.

(121) See Sophia Reibetanz Moreau, "Equality Rights and the Relevance of Comparator Groups" (2006) 5:1 JL & Equality 81 at 86.

(122) Ibid at 86-87.

(123) 2011 SCC 12, [2011] 329 DLR (4th) 193.

(124) Ibid at paras 55-67.

(125) Ibid at para 40.

(126) See generally Kent Roach, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice (Toronto: University of Toronto Press, 1999).

(127) Ibid.

(128) Charter, supra note 4 at s 1.

(129) See R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200.

(130) See Honourable Robert J Sharpe & Kent Roach, The Charter of Rights and Freedoms, 4th ed (Toronto: Irwin Law, 2009) at 69.

(131) See Leon E Trakman, William Cole-Hamilton & Sean Gatien, "R v. Oakes 19861987: Back to the Drawing Board" (1998) 36:1 Osgoode Hall LJ 83 at 95.

(132) Fraser, supra note 84.

(133) See Safe Streets and Communities Act, supra note 1.

(134) M(C), supra note 19 at 347.

(135) Ipeelee, supra note 46 at para 73.

(136) Ibid at para 75.

CHRISTOPHER SEWRATTAN ([dagger])

([dagger]) BA (Hons), JD, of the Bar of Ontario. I am grateful for the feedback from the staff of the UBC Law Review and the anonymous peer reviewers. All errors and omissions are my own.
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Title Annotation:Canada
Author:Sewrattan, Christopher
Publication:University of British Columbia Law Review
Date:Jan 1, 2013
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