Among the many recommendations from the Truth and Reconciliation Commission last week were proposals aimed at the justice system.
The suggestions ranged from a call on the Federation of Law Societies of Canada to ensure lawyers receive cultural competency training that includes the history and legacy of residential schools to a recommendation that law schools should require all students to take a course in aboriginal people and the law. In addition, it wants all governments to commit to eliminating the overrepresentation of aboriginal people in custody over the next decade with annual reports on the progress so far. Another recommendation — allowing trial judges to depart from mandatory minimum sentences and restrictions on the use of conditional sentences — would go some way to dealing with the overrepresentation issue.
Canada’s political culture has struggled with the overrepresentation issue for some time. On the one hand, we have rulings like
R. v. Gladue and calls from politicians, the courts, and civil society to deal with the issue while at the same time we see the continued expansion of mandatory minimum sentences that work against addressing it.
Fortunately, we have answers from groups like the Canadian Bar Association that have been calling for a so-called safety valve to allow for some discretion to depart from mandatory minimum sentences where injustice could result. Such a safety valve would restore some judicial discretion and allow the courts greater leeway to address issues such as the overrepresentation of aboriginals in the prison system.
The current federal government, of course, has little appetite for such a change. But with everyone now talking about conciliation and a federal election looming, there’s a window to get the idea on the table.
If the federal parties are truly serious about conciliation, they should be talking about justice system reforms this fall.
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Glenn Kauth
