Written by Safiyya Ahmad
The BCCLA continues to fight against the mass incarceration of Indigenous Peoples by the Canadian criminal legal system, and to follow the guidance of Indigenous scholars, lawyers, and advocates.
In October 2022, we brought this fight to Parliament, making submissions on Bill C-5: An Act to amend the Criminal Code and the Controlled Drugs and Substances Act. The Bill claimed to reduce the disproportionate rates of incarceration, particularly for Indigenous and Black people. In reality, the Bill barely scratched the surface of the changes needed to realize this goal.
Our goal was to persuade Parliament to incorporate the relevant recommendations made by the Truth and Reconciliation Commission (TRC) and the National Inquiry into Missing and Murdered Indigenous Women (NIMMIWG) into Bill C-5.
Devastatingly for those impacted by mass incarceration, these recommendations were not adopted. On November 17, 2022, Bill C-5 received royal assent and was passed into law.
Bill C-5: Yet another failure of the Canadian government to reduce mass incarceration
Bill C-5 was a crucial opportunity for the Canadian government to address the mass incarceration of Indigenous Peoples. Instead, the government wasted this chance to hold itself accountable to the Calls to Actions and Calls for Justice made by the TRC and NIMMIWG.
The BCCLA made written and oral submissions to the Standing Senate Committee on Legal and Constitutional Affairs, specifically regarding the removal of mandatory minimum sentences, the removal of limitations on the use of Conditional Sentence Orders, and the decriminalization of substance use – key factors in reducing mass incarceration.
Mandatory Minimum Sentences
The BCCLA was deeply concerned that Bill C-5 kept most mandatory minimum sentences in the Criminal Code intact, despite their proven inefficacy, disproportionate cruelty, and significant contribution to the mass incarceration of Indigenous Peoples. Mandatory minimums force judges to imprison people even if they feel it is not an appropriate sentence, and these measures are used disproportionately against Indigenous peoples.
This concern was echoed by several other witnesses during the Bill-C5 hearings. Both Crown prosecutors and defence attorneys recommended the removal of mandatory minimum sentences, or at the very least, to allow judges to depart from these requirements. Similar recommendations were made by scholars and social advocates, indicating widespread support for their removal.
Conditional Sentence Orders
The BCCLA was also concerned that the Bill maintained unnecessary limits around the use of Conditional Sentence Orders (CSOs) as an alternative to incarceration. CSOs offer an important mechanism to reduce mass incarceration, by providing a serious sanction while also creating space for Indigenous legal orders, which are the laws and traditions that have governed Indigenous communities since time immemorial. CSOs allow these legal orders to be respected and implemented in ways that are meaningful for Indigenous Peoples.
We, alongside other witnesses, made the recommendation to remove all remaining limits on CSOs. As noted by Jonathan Rudin of Aboriginal Legal Services:
“Canadian correctional centres and penitentiaries do not do a good job in rehabilitating offenders – particularly Indigenous offenders. And we need to keep in mind that jailing people who don’t need jail has real consequences. People lose their accommodation, they lose their jobs, they lose opportunities for education and treatment and, mothers in particular can lose custody of their children. No one benefits from a justice system that focuses exclusively on the most punitive aspects of sentencing.”
Decriminalization of Drug Use
The BCCLA argued that the Bill maintained the harmful criminalization of people for simple drug possession offences and necessity trafficking (when an individual sells or shares drugs for their own subsistence, to support personal drug use costs, or to provide a safe supply), and called on Parliament to use Bill C-5 to remove these offences from the Controlled Drugs and Substances Act.
Many others shared the BCCLA’s concerns, and also urged Parliament to amend Bill C-5 to fully decriminalize substance use and necessity trafficking. Indigenous people are disproportionately targeted for substance use and trafficking offences, which in turn contributes to the mass incarceration crisis. This ongoing criminalization only serves to further marginalize people who use drugs, and it will only lead to more deaths as Canada continues to face a toxic drug crisis.
Despite almost a full year of debates, witness testimony, and similar calls for change, from a wide range of actors, Parliament chose to keep the Bill largely as it was, failing to make any decisive strides to address the mass incarceration of Indigenous Peoples.
Incremental change prolongs the cruelty and injustice of mass incarceration
In a 2022 report, the Yellowhead Institute found that the Canadian government has only implemented 13 of the 94 TRC Calls to Action over the past seven years. They have so far failed to implement Calls 30-40, which specifically seek to address the underlying issues of the mass incarceration crisis of Indigenous Peoples.
We recognize that Bill C-5 claims to bring about incremental change, including that:
- The Bill eliminated a handful of mandatory minimum sentences in the Criminal Code, and all mandatory minimum sentences in the Controlled Drugs and Substances Act. This is a minor positive change, but considering that mandatory minimums are a core cause of mass incarceration, it is not enough.
- The Bill eliminated two of the statutory bars against the use of CSOs (Sections 742.1(e) and 742.1(f)), enabling judges to issue CSOs in a minor number of cases. Again, this is a positive change, but minor at best.
- The Bill added language to the Controlled Drugs and Substances Act (CDSA), recognizing that substance use is not a criminal law matter, and that social and public health measures are a better use of resources. While an important shift in language, this symbolic gesture does not mean concrete change. The criminalization of substance use remains the same.
Bill C-5 remains a missed opportunity. Its timidity and failure to comprehensively tackle the factors contributing to mass incarceration, despite notable widespread consensus on the calls for change from a diverse range of actors, allows for further miscarriages of justice, and prolonging the cruelty and injustice of Canada’s mass incarceration of Indigenous Peoples, and other marginalized communities.
The mass incarceration crisis is a key example of how the Canadian government continues to perpetuate colonial violence. This is a crisis of the federal government’s own making, and as such, the government has a responsibility to undo its own harms, by at the very least adopting the recommendations of the TRC and NIMMIWG.
It also interferes with Canada’s stated goals of reconciliation and respect for Indigenous self-government, as emphasized by the Yellowhead Institute report. According to Métis Professor Scott Franks:
“Canada’s response has not addressed the systemic factors related to the mass incarceration of Indigenous persons, which undermines Indigenous self-determination and sovereignty. First, it excuses Indigenous jurisdiction over justice in their territories. Second, it physically removes the citizens and members of Indigenous nations and communities and places them into the state’s custody.”
Professor Franks concludes that as long as Canada does not deal with the systemic factors underlying mass incarceration, courts can only provide settler harm reduction rather than true justice.
The BCCLA will continue to fight for the:
- Implementation of the TRC Calls to Action and NIMMIWG Calls for Justice;
- Full repeal of all mandatory minimum sentences in the Criminal Code;
- Decriminalization of substance use and necessity trafficking;
- Provision of adequate resources for Indigenous and remote communities in order to provide viable alternatives to incarceration; and
- Space and support for Indigenous legal orders and Indigenous jurisdiction in matters of justice.
 Canada, Department of Justice, Addressing Systemic Racism in Canada’s Criminal Justice System while maintaining public safety, (7 December 2021), <https://www.justice.gc.ca/eng/csj-sjc/pl/sr-rs/index.html> accessed 16 December 2022.
 See, for example: Canadian Bar Association, Bill C-5 – Criminal Code and Controlled Drugs and Substances Act Amendments, (28 September 2022), <https://sencanada.ca/Content/Sen/Committee/441/LCJC/briefs/2022-09-28_LCJC_C-5_Brief_CBA_e.pdf>; Barreau du Québec, Comments and observations of the Barreau du Québec, (22 April 2022), <https://sencanada.ca/Content/Sen/Committee/441/LCJC/briefs/2022-04-22_LCJC_C-5_Brief_BQ_e.pdf>, accessed January 9, 2023.
 See, for example: Native Women’s Association of Canada, Brief on Bill C-5, (12 October 2022), <https://sencanada.ca/Content/Sen/Committee/441/LCJC/briefs/2022-10-13_LCJC_C-5_Brief_NWAC_e.pdf> accessed 3 May 2023; Julian Roberts, Draft Amendment: Proposals, (10 October 2022), <https://sencanada.ca/Content/Sen/Committee/441/LCJC/briefs/C-5_JulianRoberts_Full_e.pdf> accessed January 11, 2023.
 See, for example: Black Legal Action Centre, Canadian Association of Elizabeth Fry Society, and Women’s Legal Education and Action Fund, Summary Submission to the Standing Senate Committee on Legal and Constitutional Affairs on Bill C-5, An Act to Amend the Criminal Code and Controlled Drugs and Substances Act, (18 October 2022), <https://sencanada.ca/Content/Sen/Committee/441/LCJC/briefs/C-5_Brief_LEAF_BLAC_CAEFS_e.pdf> accessed 11 January, 2023; Aboriginal Legal Services, Written Submissions to the Standing Committee on Legal and Constitutional Affairs on Bill C-5, (4 October 2022), <https://sencanada.ca/Content/Sen/Committee/441/LCJC/briefs/2022-10-05_LCJC_C-5_Brief_ALS_e.pdf> accessed 3 May 2023.
 Canadian Drug Policy Coalition, Decriminalization Done Right: A Rights-Based Path for Drug Policy (2021) <www.drugpolicy.ca/wp-content/uploads/2021/12/EN-PTL-Decrim.pdf> [Decriminalization Done Right]
 See, for example: Pivot Legal Society, Pivot Legal Society Submission to the Standing Senate Committee on Legal and Constitutional Affairs, (19 October 2022), <https://sencanada.ca/Content/Sen/Committee/441/LCJC/briefs/LCJC_C-5_Brief_Pivot_e.pdf> accessed 3 May 2023; HIV Legal Network, Submission to the Standing Senate Committee on Legal and Constitutional Affairs: Review of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, (21 September 2022), <https://sencanada.ca/Content/Sen/Committee/441/LCJC/briefs/2022-09-21_LCJC_C-5_Brief_HIV_e.pdf>, accessed 3 May 2023.
 Yellowhead Institute Report at p. 8.
 Yellowhead Institute Reportat p. 29.
 Yellowhead Institute Report at p. 29.