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Pam Palmater

Tag: Bill C-10

  • Cannabis legalization ignores First Nations

    Cannabis legalization ignores First Nations

    *This article was originally published in The Lawyer’s Daily on Jan.30, 2019. For decades, federal and provincial governments, through their local, regional and national police agencies and court systems, have arrested, charged and imprisoned thousands of First Nations people for engaging in the cannabis trade. Many had hoped that Prime Minister Justin Trudeau’s stated commitment to renewing the relationship with Indigenous peoples and his desire to legalize cannabis would help address many issues, one of which being the crisis-level over-incarceration of Indigenous peoples. Despite legalization of cannabis in 2018, Trudeau’s Liberal government has not yet seen fit to provide relief for Indigenous peoples languishing in prisons for cannabis-related offences. This is disappointing on two fronts: the first being that Trudeau has not kept his promises to Indigenous peoples; and second, that the first ever female Indigenous Justice minister didn’t take steps to get Indigenous peoples out of prison. We know that the over-incarceration of Indigenous peoples is a real crisis — one that continues to grow without abatement. Despite being only five per cent of the population in Canada, they represent more than 27 per cent of those in federal prisons. Indigenous women make up a staggering 43 per cent and Indigenous youth are now over 46 per cent of admissions to youth corrections. Yet, even these statistics don’t show the whole picture. The provincial incarceration rates, especially in the Prairies, are astounding. Provincial prisons can be as high as 80 per cent Indigenous peoples and for Indigenous girls in Saskatchewan, that rate is an unbelievable 98 per cent. We also know that more than half of all drug offences in 2016 were cannabis-related (58 per cent) and the majority of the charges were for possession. To say that we have a real incarceration crisis is an understatement, but the limited cannabis legalization scheme, which does not substantively address over-incarceration of Indigenous peoples, is yet another broken promise. While a handful of First Nation businesses have been specifically “permitted” to engage in this new trade, the majority are under a very real risk of legal sanctions — both as individuals and as First Nations — who assert their jurisdiction in this area. It is a cruel colonial irony that the very same people who have been imprisoned for their role in the cannabis trade — First Nations peoples — are now largely prohibited from engaging in the trade without permission from provincial governments. Neither the federal nor provincial governments engaged in nation-to-nation dialogue with First Nations over how to best bring federal, provincial and First Nation laws into harmony in relation to cannabis. Despite the many calls from First Nations for collaboration, First Nations were left out of the legislative drafting process and any good faith attempt to provide a trilateral, good faith path forward. In May 2018, prior to the legalization of cannabis, the Standing Senate Committee on Aboriginal peoples released a report on Bill C-45 An Act Respecting Cannabis and to Amend the Controlled Drugs and Substances Act, the Criminal Code and Other Acts, which noted a real lack of “meaningful consultation” with Indigenous peoples and recommended that legalization be delayed for one year. The Standing Senate Committee recommended that Canada use the year to engage in negotiations with First Nations about tax collection and revenue sharing on reserves, recognition of the right of First Nations to enact their own legislation and funding for substance abuse and healing centres. They further recommended that no less than 20 per cent of all cannabis production licences be issued to First Nations. This would have provided sufficient time for First Nations to draft their own laws, rules and regulations and develop their own business policies and public safety protocols. While the Ministers of Health and Indigenous Services penned a letter to Senate claiming that their government “respects the jurisdiction of Indigenous communities”, Justice Canada officials previously clarified in Senate hearings that their position is that First Nations cannot enact by-laws in relation to cannabis on reserve and that provincial laws would apply. The federal government can’t have it both ways. Incredibly, Trudeau has missed yet another opportunity to engage with First Nations on a nation-to-nation basis and decided to forge ahead on cannabis legislation without properly engaging with First Nations or meaningfully considering their inherent Aboriginal and treaty rights to pass their own laws. Instead, the federal government assumes provincial jurisdiction setting the stage for the legislated exclusion of First Nations and conflict on the ground. This isn’t the first time the government of the day has blockaded First Nations from engaging in their own business and trade endeavours to support their communities. It wasn’t that long ago that the Conservative government under former Prime Minister Stephen Harper enacted Bill C-10 An Act to amend the Criminal Code (trafficking in contraband tobacco) to create the new offence of trafficking in contraband tobacco and prescribed minimum mandatory sentences for repeat offenders. It was very clear that the bill was intended to target First Nations and their long practice of growing, manufacturing and trading in tobacco despite their inherent, Aboriginal and treaty rights to do so. The RCMP defined contraband tobacco as product that is primarily manufactured on First Nations reserves. This bill effectively acted as a legal blockade attempting to criminalize First Nations for engaging in their own traditional economies — an economy not even known to Europeans prior to contact. Settler governments have long engaged in the colonization of Turtle Island through the theft of First Nations lands and resources, but also through the appropriation of their lucrative trade practices, products and routes. The criminalization of the tobacco trade for First Nations went hand in hand with the transfer of control and benefit from tobacco to settler governments. It looks like Canada is doing the same thing to First Nations with regards to the cannabis trade. https://pampalmater.com/2018/04/canadas-criminalization-of-indigenous.html While it may or may not have been grown, manufactured and traded traditionally, there is no doubt that this is the modern evolution of the right to trade as outlined in so many Supreme Court of Canada cases like the Van der Peet trilogy and the Sappier and Gray cases. First Nations are not limited to economic practices of pre-contact times or be “frozen in time.” Yet, that is exactly what seems to be happening with the cannabis trade. In fact, it looks like those that are first in line to profit from this new legal trade are the very politicians and police officers that once fought so hard to imprison First Nations for trading in tobacco and now cannabis. Those previously engaged in tobacco and drug enforcement have an unfair advantage of knowing all the confidential intelligence on the drug trade and its key players, as well as where and when to sell product and to whom. On top of this, former cops have connections all over the country, and that alone is an incredible form of advantage and means of intimidating the so-called competition. This gross injustice is now compounded by the fact that only certain businesses will be granted licences and the majority of those licences do not include First Nations or their businesses. According to the federal government’s report to Senate, there are only 5 Indigenous producers out of the 105 in Canada — a far cry from the minimum 20 per cent recommended by Senate. As the most impoverished communities in Canada, First Nations have incredible social pressures on them to find ways to provide for their communities in a legally and politically hostile context. Federal and provincial governments have created legal blockades around most First Nation traditional economies like hunting, fishing and gathering. They have left First Nations with few alternatives. If Trudeau thinks that First Nations will simply shrug their shoulders and move along to a different economic opportunity, he is sadly mistaken. Many First Nations are invested in this trade and will defend their legal right to do so with or without provincial approval. The ability of the police to enforce federal or provincial laws in this regard will be highly suspect given their former colleagues’ involvement in the trade. Would the police be upholding the law or protecting the thin blue line’s new income stream? All of this pending conflict — and there will be conflict — could have been avoided had Trudeau practised what he promised and engaged with First Nations on a nation to nation basis and respected First Nation rights. It’s never too late to act, but with an election just around the corner — it is unlikely Trudeau will rock the boat for all those former cops and Liberal politicians who now stand to make millions from cannabis. *Link to the article as originally published in The Lawyer’s Daily: https://www.thelawyersdaily.ca/articles/9968/cannabis-legalization-ignores-first-nations-pamela-palmater?category=opinion

  • Justice Minister Vic Toews’ Wilful Blindness to the Ongoing “Crisis” in Justice System

    Please tell me that I am not the only one who is shocked by federal Justice Minister Vic Toews’ idiotic comments tonight on APTN News. Did he actually say that there is nothing wrong with our justice system and that our justice system does not discriminate? I can’t even think of a proper descriptor for his comments – ignorant, racist, wilfully blind, pitifully stupid, unprofessional, and irresponsible don’t seem to convey the depth to which his comments are offensive. http://aptn.ca/pages/news/2011/11/28/the-justice-system-doesnt-discriminate-says-justice-minister-toews/ It is as if he has ignored every single justice report, inquiry, and Supreme Court of Canada judgement that has found, based on overwhelming research and evidence, that our justice system does in fact discriminate, especially against Indigenous peoples. However, we all know that as Minister of Justice he knows about all these reports – he has simply chosen to ignore them because it suits the Conservative party’s racist assimilatory policy towards Indigenous peoples. I hardly know where to start. The Report of the Royal Commission on Aboriginal Peoples (RCAP) published in 1996 is one of the most comprehensive studies on the situation of Indigenous peoples in Canada. http://www.collectionscanada.gc.ca/webarchives/20071126051037/http://www.ainc-inac.gc.ca/ch/rcap/sg/cg_e.html In the same year, they released a report entitled: Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada was released which highlighted the numerous problems with the justice system as it relates to Indigenous peoples. Both reports found the fact of over-representation of Indigenous peoples in the criminal justice system to be due in part to ongoing discrimination. Prior to that, in 1989, there was the Royal Commission on the Donald Marshall Prosecution which you will recall was brought about because of the wrongful imprisonment of Donald Marshall Jr simply because he was Mi’kmaq. http://www.gov.ns.ca/just/marshall_inquiry/_docs/Royal%20Commission%20on%20the%20Donald%20Marshall%20Jr%20Prosecution_findings.pdf The inquiry found: “The criminal justice system failed Donald Marshall Jr., at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal by the Court of Appeal in 1983.” They further found that everyone involved, from the police, Marshall’s lawyers, the judges, prosecutors, and appeal judges all failed Marshall because he was “native”. Minister Toews would be shocked to learn that their actions “amounted to a defence of the criminal justice system at the expense of Donald Marshall Jr., in spite of overwhelming evidence that the system itself had failed.” Toews might also be gobsmacked to hear that this inquiry made recommendations to “reduce discrimination in the justice system”. There is also the Report of the Manitoba Justice Inquiry in 1999 which made significant findings in relation to the level of discrimination in the justice system as it relates to Indigenous peoples. http://www.ajic.mb.ca/volume.html They found that there are two primary reasons why Aboriginal peoples are over-represented in the criminal justice system, and both are the result of systemic and ongoing discrimination against Aboriginal peoples. First of all, they found that Aboriginal peoples are more likely to be confronted by the justice system, not because they are culturally pre-disposed to criminal activity, but because of the long history of “discrimination and social inequality that has impoverished Aboriginal people and consigned them to the margins of …society.” However, the Inquiry found that the more serious issue was the ongoing discrimination within the justice system that assumes all people are the same. A system which assumes equality exists “can’t help but discriminate against Aboriginal people”. Just in case there was any doubt about the fact of discrimination in the justice system (which Toews denies), the Inquiry further found that: “Discrimination against Aboriginal people has been a central policy of Canadian governments since Confederation” and “represents a monumental symbol of intolerance”. Aboriginal peoples have been, and continue to be victims of “the openly hostile bigot” and the victims of the systemic discrimination found in our justice system. For Minister Toews to say otherwise is an outright lie according to these legal inquiries, the Supreme Court of Canada and even the Office of the Correctional Investigator. This alone is cause for Minister Toews to submit his resignation because he obviously no longer represents the public interest if he can so openly deny the sickness within the justice system. Most of you will recall the Supreme Court of Canada’s decision in Gladue. http://www.canlii.org/en/ca/scc/doc/1999/1999canlii679/1999canlii679.pdf The TOP COURT in our country found that in addition to Canada being “a world leader in putting people in prison”;  the “serious problem of aboriginal overrepresentation in Canadian prisons is well-documented”, the “excessive imprisonment of aboriginal people is only the tip of the iceberg” because “Aboriginal people are overrepresented in virtually all aspects of the system.” The Supreme Court of Canada goes on to explain (so READ carefully Minister Toews), that “there is widespread BIAS against aboriginal people within Canada” such that “this widespread RACISM has translated into systemic DISCRIMINATION in the criminal justice system.” (emphasis added) They also highlight the fact that the drastic level of discrimination and overrepresentation should be considered “a CRISIS in the Canadian criminal justice system”. But, just in case numerous reports, inquiries and court cases from the top court in the land don’t convince you, what about the research and observations of a federal official like the Office of the Correctional Investigator who has been saying for over 15 years that the discrimination at every level of the justice system against Aboriginal peoples is a full-blown CRISIS. http://www.oci-bec.gc.ca/rpt/index-eng.aspx I invite anyone to read any report from any year and you will note that report after report highlights the discrimination, the suffering of Aboriginal peoples by discriminatory laws and policies and the fact that the problem is getting WORSE not better. These reports call the situation: – “discriminatory” (2001); – a “continuing crisis and embarrassment” (2003); – it is a “grave” situation which prevents Aboriginal people from enjoying equality (2005); – the “inequitable results” stem directly from federal policies (2008); – the situation is getting much worse (2009); and – “inequitable outcomes” are the direct result of federal policies and practices (2010). What does this all mean in terms of numbers? Well, Aboriginal peoples are only 4% of the population, but in places like Manitoba Aboriginal men can make up 79% of the prison population. Aboriginal women fare even worse making up to 83% of all prison admissions. http://www.vcn.bc.ca/august10/politics/facts_stats.html However, the situation is getting much worse for Aboriginal women and are expected to have significant increases. In fact, over a 10 year period, the imprisonment of our Aboriginal women rose by 151%. http://elizabethfry.ca/wwdcms/uploads/Aboriginal%20Women.pdf This of course, ONLY reflects what is happening in criminal justice. This does not include all the overt discrimination faced by Aboriginal peoples in the justice system by way of: – murdered and missing Aboriginal women left to die without adequate police attention; – our people who are taken on Starlight tours and left to freeze to death; – our people who are shot to death, beaten to death or tazered unnecessarily; and – the use of CSIS, RCMP, military and now INAC to spy on our people – even those of us who have never committed a criminal act. No one in their right mind could stand before all Canadians and claim that our justice system is not broken and does not discriminate against anyone. Only a right-wing extremeist, drunk with “white privilege” and power would even have the nerve to say something like that and ignore all the evidence to contrary – including evidence that comes from the very justice system he defends. This controversy all comes about over his defence of Bill C-10 – a massive bill that would make numerous amendments to numerous acts – many of which will have devastating consequences on Canadians. It will make minimum prison sentences mandatory and will take away the discretion of judges to find alternatives to prison. It is widely opposed – by organizations like the Canadian Bar Association which represents lawyers in Canada. Their 100-page submission against the Bill highlights the speed at which this omnibus bill (one that makes many changes to many acts) is being considered, the lack of time for study and comment and the overall dangers of the bill. http://www.cba.org/CBA/submissions/PDF/11-45-eng.pdf The following link is to a radio interview where I first talked about Bill S-2 (matrimonial real property on reserve) and then Bill C-10 and how they both relate to the oppression and assimilation of Aboriginal peoples. http://www.radio4all.net/files/fro.macpho@gmail.com/4356-1-InterviewPamelaPalmaterEdited.mp3 I know I ask a great deal of my readers – to read such lengthy blogs, access numerous links and write e-mails to express our concerns regarding endless bills, policies and actions against our peoples. But, most of us have the education, access to internet and computers and ability to do this. Think of all those who can’t, but who will no doubt be the ones to suffer from this ongoing oppression and assimilation of our people. Please write to Minister Toews and tell him to get real, submit his resignation and NOT pass Bill C-10. libmem@parl.gov.ca bqmem@parl.gc.ca cpcmem@parl.gc.ca ndpmem@parl.gc.ca vic.toews@parl.gc.ca Thank you for all your support and for continuing the battle for real justice and equality. For rabble fans, see my blog on rabble.ca.