Judge strikes mandatory minimum in drug case

But there are still many other mandatory minimum punishments in Canadian law contributing to the overrepresentation of Indigenous people in prisons, Rudin said, calling on the federal government to act on the issue.

“The answer has to be that the federal government do what they said they were going to do and legislate away these mandatory minimums or legislate in an escape clause (for judges),” he said.

Justice Minister Jody Wilson-Raybould said the prime minister has called for a “broad review” of changes to the criminal justice system that have taken place over the past decade, including mandatory minimums.

“The examination of mandatory minimum penalties is included in this review (and) that work is ongoing,” she said in a statement. “The courts have made it clear that mandatory minimum penalties present serious challenges from a constitutional perspective.”

The Supreme Court of Canada has ruled that when sentencing Indigenous offenders, judges must take into account that person’s individual circumstances and how they may have been affected by societal issues such as racism, poverty, substance abuse and “family or community breakdown.”

These guidelines, referred to in law as the Gladue principles, force judges to recognize that Indigenous people do not always have the same access to justice as non-Indigenous Canadians, lawyer Josephine De Whytall said.

Aboriginal Legal Services helped Sharma’s defence launch its Charter challenge, calling York University sociologist Carmela Murdocca as an expert witness to testify about the historical challenges faced by Indigenous people and the vulnerability and financial hardship experienced by many racialized women convicted of drug crimes.