III. Recommendations in Response to Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property

A.  Abolish Mandatory Minimum Sentence of Life Imprisonment

CAEFS’ primary and most critical response to the Department of Justice paper, Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property (Department of Justice, 1998) is to urge the abolition of the mandatory minimum sentence of life imprisonment. CAEFS has, since 1979, formally opposed all mandatory minimum sentences, as have many other government commissions such as the Sentencing Commission of Canada (Canadian Sentencing Commission, 1986). Given the extremely serious repercussions of the mandatory minimum sentence of life imprisonment for individual women convicted of murder and for the conditions in women’s prisons, CAEFS calls for abolition of this and all other mandatory prison sentences.

1. Systemic Discrimination: Unequal Treatment

First and foremost, abolition of mandatory minimum sentences is necessary if we are to address systemic discrimination in the criminalization and imprisonment of women, members of racialized communities, people with disabilities, the poor, and lesbians and gays. While some people seem to believe that mandatory minimum sentencing amounts to “equal treatment”, this assumption is falsely simplistic.

Mandatory sentencing could only be said to be “equal treatment” if everyone had an equal chance at receiving a mandatory sentence. Everyone does not have an equal chance at receiving a mandatory prison sentence for a number of reasons. Disparity is partly created by the choice of offences that are targeted for mandatory minimums -- usually the offences disparately committed by the socio-economic underclass of a particular society (Morgan, 1999 at 276-77). Further, as has been demonstrated over and over again by activists, researchers, and advocates, Aboriginal people, other racialized people, and poor people face a criminal justice system in which discretion is exercised to their disadvantage at every turn, from the investigatory and charge stage by police, to the prosecutorial decisions made by Crown attorneys, to the trial and sentence decisions by judges, to the penal practices, including discipline of prison authorities, through to the parole determinations made by the parole board.

There are several dramatic examples that suggest that prosecutorial discretion with respect to the laying of murder charges displays evidence of systemic racism, which in turn will dictate which prisoners face mandatory life sentences. One such example occurred in Prince Albert, Saskatchewan in 1991 when the police and Crown settled on a manslaughter charge, instead of a murder charge, with respect to the shooting death of an Aboriginal man, Leo LaChance, by Carney Nerland, an avowed white supremacist and a police informant. Although this unusual decision was remarked upon by the judge who heard Nerland’s bail application, no change in the prosecutorial decision ensued. Nerland, a prominent member of the Aryan Nation, had boasted after the homicide that “If I am convicted of shooting that Indian, I should get a medal and you should pin it on me”. The evidence that suggested that Nerland had fired the shot at close range, inside of his gun store, also could have supported a murder charge (Abell and Sheehy, 1996 at 121-23).