Honourable senators, I rise today in support of Bill S-207, An Act to amend the Criminal Code, which would remove mandatory minimum sentences. Mandatory minimums prevent judges from considering an individual’s circumstances, which may warrant a lesser sentence. As our colleague Senator Pate has explained in detail, there are many different contexts and circumstances that might be taken into account by judges when sentencing. However, today I want to examine this bill through a culturally relevant, gender-based lens and clarify how it will affect Indigenous women.

Indigenous women in Canada report spousal abuse at a rate that is three times higher than non-Indigenous women. We have heard that 90% of Indigenous women who are incarcerated have a history of physical and/or sexual abuse. Sometimes Indigenous women are criminalized for defending themselves against abusive partners. Some women endure years of physical, emotional and/or sexual abuse before lashing out against their abuser. The mandatory minimum sentence for murder is life in prison, and because there is a lack of legal resources and a distrust of the legal system, Indigenous women will often take a plea for manslaughter even when cases are in self-defence. Indigenous women are often overrepresented as homicide victims, but also accused of homicide. While all women in Canadian society are at a higher risk of intimate partner violence, research shows that Indigenous women and girls experience higher rates of violent victimization. This is not historically natural in Indigenous culture.

Indigenous women held a sacred place in First Nations, Métis and Inuit society. Early Indigenous societies understood the underlying principles of gender balance, and the common thread running through all Indigenous groups is that gender equality is the key to survival.

Men could not survive the harsh conditions without the women, and the women could not survive without their male counterparts. Women made integral decisions about family, property rights and education. They were the keepers of the traditions, practices and customs of their nations. They were admired for their capacity to create new life and new relationships with the creator.

Prior to colonization, Indigenous women enjoyed comparative honour, equality and political power in a way European women did not at the same point in history. We can trace the diminishing status of Indigenous women with the progression of colonization.

Sexism and enduring domestic abuse is a consequence of colonization and a result of the dismantling of Indigenous ways. This, combined with policies of assimilation and cultural genocide, has led to the situation we see today. The Indian Act, residential school policies, mental health laws and the forced removal of children in the Sixties Scoop, are some of the ugly determinants that have contributed to the erosion of women’s roles in Indigenous cultures.

Elder and knowledge keeper Verna McGregor of Minwaashin Lodge, right here in Ottawa, agrees that policies of assimilation have been contributing factors to the abuse that many Indigenous women are subjected to. This is also evidenced by the high rates of incarceration of Indigenous persons in Canada. She confirms that crime is often linked to poverty, and with First Nations, Métis and Inuit peoples it is also related to issues caused by colonization.

When sentencing Indigenous women, judges should be able to use an intersectional lens. The principles outlined in the Gladue 1999 Supreme Court decision state that in sentencing an Indigenous offender, the judge must consider two things. The first is that he or she consider:

. . . the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts. . .

And second, that he or she consider:

. . . the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

Mandatory minimums prevent judges from applying these important Gladue principles. The National Inquiry into Murdered and Missing Indigenous Women and Girls found that mandatory minimum sentences are especially harsh for women, Indigenous women, girls, two spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual people, as Gladue principles for sentencing cannot be applied. Indigenous women’s testimonies reveal that the Gladue decision has been ineffective in reducing the number of incarcerations. Removing mandatory minimums is needed to allow judges to consider Indigenous women’s lived experiences of intersecting inequalities, thereby considering Gladue principles if the woman wishes it.

The Ontario Native Women’s Association, in the Ottawa and Hamilton offices, have been producing Gladue reports since 2018. These Gladue reports provide recommendations that are culturally grounded and individually focused, and recognize the strength and resilience of Indigenous women.

Judges should be able to meaningfully apply these Gladue reports in the cases they oversee. They should also take judicial notice of Gladue principles and be able to use discretion when it comes to sending Indigenous persons to healing lodges, elder programs and other Indigenous-led programs that are more culturally appropriate and focus on rehabilitation rather than punishment. The Office of the Correctional Investigator’s annual report found that Canada is failing to provide Indigenous offenders with the skills, training and learning opportunities they need to return successfully to their communities.

The annual report also outlines that the overrepresentation of Indigenous women is now at an all-time high of 42%. Mandatory minimums prevent rehabilitation by diverting resources away from crime prevention and rehabilitation programs and increase the likelihood of getting a criminal record. Elder Verna McGregor also expressed her concern that Indigenous women at Minwaashin Lodge are often denied employment opportunities as a result of having a criminal record, and that mandatory sentencing only increases the frequency of this happening. Many of these women support their children, and their marginalization will continue to impact our future generations.

Honourable senators, Bill S-207 constitutes an important step toward dismantling systemic racism in the criminal justice system. It would permit judges to acknowledge the role of colonialism and assimilative policies in perpetrating violence against Indigenous women. It would also allow for proper consideration of the specific circumstances of each case through a culturally appropriate gender-based lens, and promote better application of Gladue principles, which are fundamental to restoring a holistic, collaborative and humanizing approach to justice. I support this bill, and I encourage my colleagues to do the same. Thank you, meegwetch, marsee.