Honourable senators, I speak today in support of Bill S-213. This legislation would require the Minister for Women and Gender Equality to table a statement analyzing the effects of new bills on women, and particularly Indigenous women. I want to thank Senator McCallum for introducing this legislation and for her tireless work every day, including in and with this chamber, to uphold the rights of women, Indigenous peoples and so many who are marginalized.

With respect to this bill, we owe you particular appreciation, Senator McCallum, for your insistence that Canada’s legislation does justice with respect to the lived realities of Indigenous women.

Our ongoing debates on Bill C-7 have emphasized the vital need for feminist, disability and critical race lenses by which we consider legislation. The criminal, legal and prison systems provide further stark examples of this need.

In 1988, the Daubney Report sounded the alarm about the crisis of overrepresentation of Indigenous peoples in prison. In 1992, the Corrections and Conditional Release Act was enacted and heralded as a piece of human rights legislation, one of the aims of which was to reduce the numbers of Indigenous peoples in prisons. In 1996, the Criminal Code was amended to require sentencing judges to prioritize consideration of non-carceral sanctions, particularly for Indigenous peoples.

These realities notwithstanding, in 1999, when the Supreme Court of Canada weighed in, 12% of federally sentenced prisoners were Indigenous. Today that figure sits at 32%, and when you look at women alone, they are 44%. Two thirds of women in federal prisons are mothers with primary care responsibilities for their children. Their incarceration perpetuates decades of policies of forced separation, particularly of Indigenous children from their parents, the state-sanctioned removal of children and discriminatory child welfare practices and policies that continue.

The legislation that Parliament has passed has played an undeniable role in the overrepresentation of Indigenous women in prison, among those living in poverty, with disabilities, on the streets, as well as among the disappeared, the dying and the dead.

Particularly since the elimination of the Canada Assistance Plan, we have witnessed the evisceration of Canada’s social, economic and health safety net, and the abandonment of too many to poverty, homelessness or the system that has become the default for dealing with those most at risk or on the margins — that is, of course, our criminal legal and penal systems.

At the same time, we have seen the exponential growth of sentencing measures like mandatory minimum penalties, from about 10 mandatory minimum sentences in the criminal law to about 72. Mandatory minimum penalties have prevented judges from doing their duty to take into account the individual and all relevant circumstances of the cases in front of them and consider whether alternatives are appropriate, particularly when it comes to acknowledging and redressing the realities of colonialism and systemic racism in the lives of Indigenous peoples, Black Canadians and people of colour, as well as for those with disabilities.

For this reason, the Truth and Reconciliation Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls have called for action on mandatory minimum penalties. We have also seen the ratcheting up of fees, wait times and application requirements for relief from the burden of criminal records in order to allow people to move on and integrate successfully into the community. Records bar access to jobs, education, volunteer opportunities, housing and even long-term care. The result is marginalization, stigma and poverty, not only for women and Indigenous women with past convictions who have long since been held accountable, but also for their children and families.

The inequitable results of the current legal system and structures are painfully clear in the story of a young Indigenous woman who was recently sentenced after pleading guilty as a result of actions carried out when she was a teenager just aging into adulthood. She had been working in a minimum-wage job but, in the absence of adequate pay, benefits and social and economic supports, was not earning enough to get by and so turned to drug trafficking.

As permitted and encouraged by harsh sentencing measures such as mandatory minimum penalties in the Criminal Code, the Crown planned to pursue a prison sentence for this young woman. She had accepted responsibility for the harm she had caused and was working within several communities, including her own, to try to make amends. Sending this young woman to prison would have caused her to lose her relationship with her child, her housing and a job she had lined up, and would have benefited absolutely no one.

In the end, she received a suspended sentence, meaning that while she still had to carry the burden of a criminal record, she was spared the travesty of being sent to prison for a mistake made at a very young age and which she continues to work to remedy.

Bill S-213 would help ensure that we do not lose sight of the consequences of the legislation that we pass.

For Senate public bills like Bill S-207 and Bill S-208, introduced this fall in efforts to help address systemic racism, sexism and inequality associated with mandatory minimum penalties and criminal records, respectively, Bill S-213 would help provide analytical information to assist parliamentarians to analyze their impact on women and, in particular, Indigenous women.

Unlike the Charter Statements introduced by the federal government in recent years, Bill S-213 would apply both to government and non-government legislation, with analysis of non-government legislation being required once it is referred to committee. For government legislation, information required by Bill S-213 would help to supplement Charter Statements.

In the last Parliament, the Charter Statement associated with Bill C-83 on solitary confinement — also known as segregation — in federal prisons provided a stark example of the need for greater detail regarding equality issues for women and, in particular, Indigenous women. Though not discussed in the Charter Statement, the Senate committee studying the bill heard evidence from witnesses about who is most likely to end up in segregation that challenged the assumptions in the legislation that torturous and harmful conditions of separation and isolation are a vital part of managing “security concerns.”

Indeed, we saw that about half of the women who are segregated are Indigenous and just as many also have disabling mental health issues. Research conducted by Correctional Service Canada as well as the Parole Board of Canada reveals that women, particularly Indigenous women who have experienced lifetimes of abuse and those with mental health issues, do not pose the greatest, if any, risk to public safety. Rather, systemic discrimination results in their disproportionate marginalization, victimization, criminalization and institutionalization. Once in prison, the discrimination continues in the forms of assessment tools as well as classification and policies that consequently limit access to programs and services.

In response to these and other findings, the Senate amended Bill C-83 to provide oversight and accountability mechanisms as well as greater impetus for and expansion of the use of available release options to help decease the numbers of Indigenous and Black prisoners, as well as those with mental health issues.

Bill C-83 was presented as an end to segregation in federal prisons, but as the work of the Minister’s Advisory Panel overseeing the implementation of the bill has revealed in very stark contrast, people continue to be held in conditions amounting to solitary confinement and torture, and Indigenous women continue to be overrepresented in such conditions. This trend has been exacerbated by the COVID-19 pandemic, during which whole prisons have been unlawfully locked down, relegating most prisoners to prohibited conditions of isolation and confinement according to Bill C-83.

Recently, both Bill C-7 and the COVID-19 crisis have also laid bare extensive and overlapping inequalities shaped by Canada’s health, social and economic policies. These inequalities demonstrate the vital need for the type of lens proposed by Bill S-213. In the lead-up to and during COVID-19, women and Indigenous women have been more likely to be living below the poverty line and working precarious jobs; at greater risk of losing their jobs as a result of the pandemic; less likely to be covered by Employment Insurance; more likely to have taken on unpaid work caring for loved ones who are young, elderly or living with disabilities; and at greater risk of experiencing domestic violence and abuse.

Public calls for more responsive, transparent and accountable legislation, policy and practice are evident in all that we are doing and are currently underscored by our examination of the impact of decades of neglect when it comes to our state social, economic and health systems.

As we look toward further debates, we must be alert to the voices of marginalized women, including women with disabilities and Indigenous women. Many are indicating that we risk expanding all kinds of intersecting issues when we don’t examine the intersections of economic, social and health supports — or more to the point, the lack of them — and we don’t ensure that the quality of life promised by section 15 of the Charter is available and delivered for all.

Ensuring robust analysis of impacts of legislation on those who are already most marginalized will also help guide us toward and ensure that we are passing legislation that lives up to the commitment the government has made to “building back better” and to leaving no one behind. Bill S-213 would enhance tools to better ensure that the legislation we pass leads to a more just, equal and fair society for all.

Meegwetch, thank you.