AG Lametti hints at new bill addressing systemic racism in the criminal justice system
The Canadian Bar Association’s 103rd annual meeting sparked some heated debate on a climate justice resolution, and passed another urging the federal government to eliminate mandatory minimum penalties (MMP) for offences other than murder.
The latter resolution has already achieved its goal; on Thursday the government introduced Bill C-22, which will repeal MMP for certain offences, including drug offences.
Minister of Justice and Attorney General David Lametti expressed concern about social inequalities and discrimination, as well as domestic violence and mental illness, in his address to the CBA’s AGM on Wednesday – its first such meeting held completely remotely.
In a new mandate letter from Prime Minister Justin Trudeau earlier this month, Lametti was tasked with reforming the criminal justice system to combat the overrepresentation of Indigenous and Black people in prisons. Speaking of the need to promote reconciliation and make alliances with Indigenous peoples and others, and to combat systemic racism, Lametti hinted to CBA meeting participants that a Parliamentary notice paper was on its way.
On Thursday Lametti announced that he had introduced proposed amendments to the Criminal Code and to the Controlled Drugs and Substances Act that would reform sentencing measures for certain offences, including by repealing some of the mandatory minimum penalties of imprisonment that contribute to higher rates of incarceration of and disproportionately affect Indigenous peoples and Black Canadians.
Mandatory minimum penalties “did not make our communities safer,” Lametti said at a press conference. “Their singular accomplishment has been to marginalize too many” Black, Indigenous and People of Colour, or BIPOC: “too many Canadians. … It simply did not work.”
The best evidence of that, he said, was that although just five per cent of Canadians are Indigenous, they account for 30 per cent of prison populations.
In supporting the CBA resolution the previous day to urge the government to eliminate mandatory minimum sentences for offences other than murder, Ontario Bar Association president Charlene Theodore noted that Blacks make up nine per cent of the federal prison population, yet comprise just three per cent of Canada’s population, and that 42 per cent of the female inmate population in Canada is Indigenous.
“This must stop,” Lametti said on Thursday; “Canadians are troubled by the disproportionate impact” of MMP on BIPOC individuals, notably as it affects young and often first-time offenders, single mothers, and the mentally ill, who may receive MMPs for drug possession offences and firearm offences.
Bill C-22 proposes to:
- Repeal mandatory minimum penalties for certain offenses- including for drug offenses- which affect lower-risk, and many first-time offenders.
- Allow for greater use of conditional sentence orders (CSO) for cases where an individual does not pose a threat to public safety and faces a term of less than two years.
- Require police and prosecutors to consider other measures for simple possession of drugs, such as diversion to addiction treatment programs, which would keep individuals in their communities and provide them with better resources.
The CBA also released its task force report on access to justice issues related to the pandemic. “To embed changes in the fabric of system … will take time and investment, and in a deliberate way,” said CBA President Brad Regehr. “I trust that our efforts will make the justice system more accessible” and modern, and assist those seeking justice.
“COVID-19 has affected us in heartbreaking ways,” Regehr said in his President’s Report to membership. The justice system had been affected by courtroom shutdowns, suspended hearings, and changes in procedures, and “we have had to become more flexible,” he added, noting that the pandemic had affected the CBA’s workplace as it had many others.
Regehr introduced the CBA’s new CEO Simon Coakeley, who took up his position just two days earlier; and he announced that on September 1, 2020, a new budget was presented that was not a deficit budget for the first time in two years.
He also noted society’s heightened awareness of systemic racism. However, it “remains in our profession, and is close to my heart,” he added; Regehr is the first Indigenous president of the CBA, and said he had “seen enough” of Indigenous people being shot and killed in Canada, and a lack of accountability for the killings of BIPOC individuals here and south of the border.
“Reconciliation can’t take place with these events still happening,” he said. “I am taking every possibility to advance this issue,” noting that he was proud of the work being done by the CBA’s Truth & Reconciliation task force, which has included the development of a tool kit for lawyers working with Indigenous peoples.
Of the four resolutions that came up for a vote at the meeting, the most contentious was brought by Lawyers for Climate Justice (L4CJ) to adopt a Climate Leadership Resolution.
“An increasingly unstable climate has wide-ranging implications for justice,” Victoria lawyer Meredith James stated on behalf of L4CJ. “In fact, climate change is already disproportionately impacting vulnerable and marginalized communities. Lawyers have an important role to play in what is now widely recognized as the greatest crisis facing humanity. This Resolution encourages Canadian lawyers to develop the tools and expertise to help before it is too late.”
The Climate Leadership Resolution was likewise brought to the 2020 AGM; it would adopt a definition of “climate justice” and urge lawyers to engage in pro bono activities to combat climate change. The resolution failed again this year, after generating the most debate of any of the resolutions. Several members again expressed concern that it did not fall within the CBA’s mandate to address injustices in the legal system, and that it was too political and divisive.
The resolutions passed at the meeting were:
- Urging the federal government to end mandatory minimum sentences for all offences other than murder, brought by Jody Berkes, Chair of the CBA’s Criminal Justice Section
- Amending the CBA’s bylaws to include religious groups in its definition
- Establishing national standards of care for long-term care facilities, sponsored by the Elder Law Section
Leadership and awards
CBA Vice-President Stephen Rotstein will step into the role of President for 2021-2022 when Brad Regehr’s term concludes at the end of August. Steeves Bujold, the CBA board member for Quebec and Chair of the Policy Committee, will become Vice-President.
Five seats on the CBA’s board of directors -- for Alberta, Saskatchewan, Ontario, Nunavut, and Newfoundland and Labrador– will be vacated this year, and applications from members are invited during the month of March via cba.org.
Several members were honoured, including John Borrows, the Canada Research Chair in Indigenous Law at the University of Victoria Law School, who is known as a leading authority on Canadian Indigenous law and constitutional law, and Aimée Craft, an associate professor at the University of Ottawa and internationally recognized expertise in Anishinaabe and Canadian Aboriginal law, including treaties and water rights. Both received the CBA President’s Award.