CAEFS adds to NAWL’s points here by emphasizing that mandatory minimum sentences fly in the face of the recommendations made by countless commissions that were intended to reduce the extremely high rate of incarceration experienced by Aboriginal people in Canada. Reports by many commissions – the Law Reform Commission of Canada (Aboriginal Peoples and Criminal Justice,1991), the Canadian Bar Association (Locking Up Natives in Canada, 1988), and the Royal Commission on Aboriginal Peoples (Bridging the Cultural Divide, 1996), to name a few – have recommended that imprisonment be a last resort for Aboriginal offenders, that alternative measures be pursued wherever possible, and that the special circumstances of Aboriginal offenders be carefully considered at the sentencing stage. These recommendations cannot possibly be implemented within a mandatory sentencing regime. In fact, as indicated in NAWL’s brief, the principle in s. 718.2 of the Criminal Code that sanctions other than imprisonment ought to be considered for all offenders, “with particular attention to the circumstances of aboriginal offenders” is directly offended by these laws.

CAEFS also believes that mandatory sentences, and particularly mandatory prison sentences, offend principles accepted in international law, such as the International Covenant on Civil and Political Rights, to which Canada is a signatory, on the basis that they violate the principles of proportionality of punishment, as required in articles 7, 9, 10, 14, and 15 (Zdenkowski, 1999 at 311). CAEFS notes that a petition has been launched by Aboriginal Legal Aid Services of Australia to the United Nations Human Rights Commission, in which the Northern Territory’s mandatory sentencing law is being challenged for offending the United Nations Convention on the Rights of the Child (Thomson, 2000 at 5). It seems that this claim as well as a private member’s bill introduced federally to override the state legislation may have precipitated a Senate Inquiry, by the Legal and Constitutional Committee, into the impact of mandatory sentencing (Terms of Reference, 1999).

7. Sentencing Powers to Police and Prosecutors

CAEFS views mandatory sentencing laws as an unacceptable usurpation by the legislature of the judicial power, offending a basic principle of democracy that executive and judicial powers must be separate. It is not simply that the legislation itself replaces the judicial function, but that police and prosecutors have had their power increased dramatically, such that their choice of charge or willingness to plea bargain will effectively determine the accused person’s sentence. Unlike judges who are required to act neutrally and who can be publicly exposed and legally challenged if they fail to live up to their obligations of fairness and impartiality, police and prosecutors are “partisan”, to put it mildly (Vincent and Hofer, 1994 at 21). As one Australian academic frames it: “the laws have meant that police and prosecution are often placed in the position of sentencers. And, of course, unlike judicial decisions, the DPP’s decisions are unpublished, unrecorded and unreviewable (save perhaps in exceptional circumstances of abuse of power)” (Goldflam and Hunyor, 1999 at 213).