This article is reprinted with permission of the Pearson Centre for Progressive Policy ( It is a Canadian think tank which solicits proposals for progressive initiatives to put forward during the 2015 Canadian federal election campaign. Politudes is a non-partisan organization and does not endorse any party or platform, but publishes material of interest to our readers.

David Daubney

I was one of 211 Progressive Conservative candidates elected on September 4, 1984. I served on several standing and legislative committees and for the last eighteen months of that Parliament chaired the Standing Committee on Justice and Solicitor General.

It became apparent to Prime Minister Brian Mulroney in the early days of his premiership that if he wished to avoid having a lot of restless backbenchers as Prime Minister John Diefenbaker had experienced with his 200 plus majority from 1958 to 1962, he should think about giving PC members much greater responsibility and freedom of action. A Reform of Parliament Committee of Private Members recommended sweeping changes that encouraged more free votes, the election of the Speaker and Committee Chairs by all Members, greater use of Private Members Bills and the ability of any MP to propose legislation or a resolution calling for a programme of action not already the subject of Government action. Parliamentary Committees could decide what business they would conduct as long as it was within their mandate – they did not have to wait for a Referral from the Cabinet. This was an environment that dramatically improved the satisfaction of both government and opposition Members .( Current Conservative backbenchers will read this with envy and disbelief.) 

I took advantage of this power in the lead­up to the Free Vote in the spring of 1987 on whether or not to reinstate the death penalty.  It was widely expected that , with the historic Tory majority and only 70 Liberal and NDP Members, the motion to reinstate would carry easily.

With the approval of a majority of members of the Justice Committee I was able to announce to the House three weeks before the vote that our committee would conduct a year­long study, the first such Parliamentary study in history, into sentencing, parole and federal corrections. I had spent considerable time talking privately to colleagues in our Caucus and knew these were for most the big three areas of concern. The vote to bring back capital punishment was defeated by a vote of 148 to 127 in the early morning hours of the final sitting day before the start of the Summer Recess that June. It was an emotional night for me.

The Justice Committee began its work in the Autumn of 1987 by visiting Penitentiaries in the Kingston Ontario area. Among those we toured was the Prison for Women, then the only federal custodial facility for female inmates in the country. There were 130 women there, about 30 of them from First Nations communities in Western and Northern Canada serving long sentences thousands of miles away from their children and other family and spiritual support.

We recommended the closure of PFW and the building of facilities for female offenders in all the regions of Canada. This finally happened in the mid­nineties.

As we held hearings in major centres across the country over the next several months, we made a point of visiting nearby federal penitentiaries. All members of the Committee, whatever their party affiliation, were taken aback by the large number of Native inmates in the West, especially in Saskatchewan. These men, like the women at the Prison for Women, had virtually no access to culturally sensitive aboriginal programming and were less likely to participate in what general rehabilitative programmes were offered. In 1987 this led to a much lower full parole grant rate for Aboriginal offenders of 18.3 % compared to 42.1% for the Non­Aboriginal population. That year Aboriginal Canadians made up 2% of the population of Canada but 9.6% of those in prisons and penitentiaries.

Our Committee heard from a number of Aboriginal witness in April and May 1988 including representatives from the Native Counselling Services of Alberta, the Council for Yukon Indians (Whitehorse), Mackenzie Court Worker Services (Yellowknife), Saddle Lake First Nations Tribal Justice Program , the Indian­Metis Friendship Centre of Prince Albert, the Gabriel Dumont Institute of Native Studies and the Native Council of Canada. In our August 1988 Report to Parliament entitled Taking Responsibility, we included a chapter on Aboriginal offenders calling for more widespread use of alternatives to imprisonment and a greater recognition of and respect for native spirituality and traditions such as smudging and sweat lodges. We also felt Elders should be accorded the same treatment and freedom of movement as chaplains in Correctional Services of Canada institutions. 
Correctional Services responded quite positively to these suggestions.

A number of members of the Committee suspected that harsh treatment of generations of Aboriginal children in Indian Residential Schools had to have played a significant, indeed corrosive, role in the over­representation of Aboriginal people in custody. 27 years ago we did not have the awful proof that that was the case so we limited our sense of despair to a statement that “The serious disruption of the Native culture and economy that has taken place in this century has had a devastating effect on the personal and family life of Native inmates.” (Taking Responsibility,211) The Truth and Reconciliation Commission and the testimony of the Survivors of the Residential Schools have provided that awful proof.

When I returned to Justice Canada in 1991 after two years in private practice, work was underway on implementing many of the 97 recommendations contained in the Taking Responsibility Report.
A consultation paper issued by Justice Minister Kim Campbell in 1990 entitled Sentencing: Directions for Reform, contained several elements calling for restraint in incarceration and indicated “…we will be particularly interested in the effect the proposals may have on the aboriginal community.”

In 1992 Minister Campbell introduced Bill C­90, Sentencing Reform legislation that received Second Reading approval in principle in May 1993 followed by limited testimony at Committee stage ­ including from the Indigenous Bar Association ­ before it died on the order paper with the dissolution of the 34th Parliament later that year.

After the Liberal Party formed the Government that year Justice Minister Allan Rock in 1996 brought in a more comprehensive Bill (C­41) that added the Conditional Sentence to the menu of alternatives to imprisonment . Just as importantly for the focus of this paper it set out sentencing principles that emphasized the principle of restraint that stated in sub ­ Section 718.2(e) of the Code that “… all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.”

This was designed to send a message to the courts and the public of Parliament’s concern about the disproportionate over­representation of Aboriginal offenders in custody. By the time the legislation
came into force in September, 1996 Canada was incarcerating Aboriginals at a rate 8.5 times greater than non­aboriginals! The actual rate that year per 100,000 adult Aboriginal population
was 735 compared to 85.3 for non­aboriginal adults incarcerated. (see Table 1 in David Daubney, “ Nine Words” Saskatchewan Law Review,volume 65(1), 2002.)

Those nine words in sub­Section 718.2(e) “… with particular attention to the circumstances of aboriginal offenders…” have come to be known as the “ Gladue clause” named after Jamie Gladue, an Aboriginal woman who was the respondent in the Supreme Court of Canada 1999 decision , R v Gladue.

As Head of the Sentencing Reform Team I had to argue with colleagues in the Federal Prosecution Service to seek leave for the Attorney General of Canada to intervene in the Supreme Court case in order to provide the Court with relevant data and information on what Parliament had in mind by the clause. The AG’s intervention, along with arguments by other interveners such as Aboriginal Legal Services of Toronto provided the Court with a strong evidentiary base for its powerful endorsement of 718.2(e).

In the words of the Truth and Reconciliation Summary Report on page 219: “…Section 718.2(e) of the Criminal Code was enacted in response to alarming evidence that Aboriginal peoples were
incarcerated disproportionately to non­Aboriginal people in Canada. The court stressed that this section is a remedial provision, enacted specifically to oblige the judiciary to find reasonable
alternatives to imprisonment for Aboriginal offenders and to take into account the background and systemic factors that bring Aboriginal people into contact with the justice system. As one of its authors I regret to say that the Gladue clause does not appear to have made a significant impact on the dramatic over­representation of Aboriginal peoples in our prisons and penitentiaries.

The TRC report points out that 28% of all admissions to sentenced custody in 2012 were Aboriginal despite the fact that Aboriginals make up only 4% of Canada’s adult population. Shockingly in those years 43% of admissions of women to sentenced custody were Aboriginal. (TRC report 217)

It is interesting to note Statistics Canada data that in those two years Aboriginal offenders made up 21%. of those who received probation or conditional sentences. It is not clear that these were the most serious offences applied or , in the case of probation, a period of community supervision following a custodial sentence. We do know that the Harper Government has since 2011 greatly reduced the kinds of offences that are eligible for conditional sentences. Since it came into office it has also introduced or increased the length of dozens of mandatory minimum sentences which has
significantly undermined the Gladue clause.

I strongly support the call to action of the TRC for the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and
restrictions on the use of conditional sentences. (TRC, The Legacy, 221)

As is the case with Adult Aboriginals, Aboriginal children and youth are over­represented in custody : girls make up 49% and boys 36% of admissions to youth custody. The TRC report puts it starkly at page 224: “ Many of today’s Aboriginal children and youth live with the legacy of residential schools every day , as they struggle to deal with high rates of addictions, fetal alcohol disorder, mental health issues family violence, incarceration of parents and the intrusion of child­ welfare authorities. All these factors place them at greater risk of involvement with crime.”

To this litany of shame must be added the huge funding inequities facing First Nations’ students on reserve and the major growth in the number of Aboriginal children in foster care. Surely Canadians of goodwill cannot permit this bleak picture to persist into the indefinite future. We must not consign another generation of Aboriginal children to perpetual despair.

How should concerned progressive parties in Parliament best support the Calls to Action set out in the Truth and Reconciliation Commission’s Interim Report?

There are 94 such Calls set out to “redress the legacy of residential schools and to advance the process of Canadian reconciliation “. Both the Leader of the Official Opposition and the Leader of the Liberal Party responded positively and immediately to the spirit of these recommendations. The Prime Minister was mute.

Some of the Calls to Action are daunting in their complexity, others capable of quick acceptance by reasonable Canadians. The key requirement for whichever party forms the next Federal Government is to act with genuine concern and a sense of urgency to address the serious gaps in health and education outcomes identified in the Interim Report. A progressive response must include a commitment by all three levels of government to eliminate the overrepresentation of Aboriginal people in custody through adequately funded community alternatives to incarceration and a departure from rigid mandatory sentences.

Liberal Leader Justin Trudeau is supportive of a public inquiry into missing and murdered Aboriginal women and girls. This would be an early signal that a Liberal Government would take the TRC Report which contains several sensible suggestions for justice reforms, seriously.

Finally progressive parties should be in favour of the proposed National Council For Reconciliation which would report to Parliament and Canadians ” … on reconciliation progress across all levels and sectors of Canadian Society, including the implementation of the Truth and Reconciliation Commission of Canada’s Calls to Action.”

Our country has an opportunity to redress the many wrongs of the past and build a stronger, safer, more healthy and caring Canada for all our people, Aboriginal and non-Aboriginal.

We must not fail in this task.
David Daubney

(1984 to 1988.) )
SOLICITOR JUSTICE (1987 to 1988.)
and prison issues in 23 developing countries (from 2011 to present).

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