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The Grand Valley Institution for Women is seen in Kitchener, Ont., in a Nov. 26, 2007, file photo.

Mathew McCarthy

A Northern Ontario judge has balked at giving six Indigenous offenders the mandatory jail sentence for driving drunk, saying jails have become the modern version of residential schools for Indigenous peoples, causing lasting damage to communities.

The case before Ontario Court Justice David Gibson involved six women from the Pikangikum First Nation, all of them mothers, five with families of up to nine children. Each woman pleaded guilty to impaired-driving offences, and in a joint hearing, brought a constitutional challenge to minimum sentences because, in practical terms, they couldn’t serve them on weekends, as other people do.

Under federal law, repeated impaired-driving offenders face a mandatory minimum jail term of as much as 90 days (the penalty for a third or subsequent offence). The nearest correctional facility to Pikangikum is in Kenora, more than 200 kilometres away, and roads are not accessible most of the year, making it difficult to return home after the weekend.

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“In a community where 75 per cent of the population is under the age of 25, removing mothers from their children for extended periods of time will [undoubtedly] exacerbate existing problems in this vulnerable and destabilized First Nation,” Justice Gibson wrote in the 36-page ruling.

What’s more, he said, overcrowding at the 94-year-old Kenora District Jail means inmates at times sleep on floors next to a toilet. And the court heard from a recent superintendent of the jail that some prisoners are forced into “fight clubs.” The jail has long-term destructive effects, the judge concluded.

“When one considers the impact such brutalizing experiences must have on inmates and what they must carry home with them to their First Nations, it is very hard not to notice the grotesque similarities between these kinds of ‘correctional institutions’ and residential schools that have caused such lasting damage to Indigenous communities.”

Usually, short mandatory sentences can be served on weekends, allowing offenders to continue working and taking care of their children.

But because Pikangikum, in Northwestern Ontario, has no jail, weekend sentences are unheard of, the judge said.

Justice Gibson ruled that the women were deprived of the equal benefit of Canadian law in being unable to serve their sentences on weekends. The mandatory minimum sentence was therefore unconstitutional and he would not apply it, he said. Impaired driving harms the community, he added, but cited testimony asserting that jail is not working. And it is up to government, in consultation with the community, to find a new approach, he said.

The women have not been sentenced yet, and the Ontario government had offered – after most of the constitutional hearing was complete – to fly them back and forth at government expense. But that was before the COVID-19 pandemic, and Ontario has been allowing those with intermittent sentences to stay home under conditions set by a judge.

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Pikangikum First Nation, intervening in the women’s case, asked Justice Gibson to declare the province has a “duty to consult” with Indigenous groups on justice matters, similar to that required of government for proposed resource developments. Justice Gibson declined to do that, but said that, based on his experience as a judge in the region since 1993, it is in the government’s best interests to do so. The province said it is reviewing the decision and declined comment while the case is within an appeal period.

The ruling has important implications for fly-in and other remote communities in Ontario and beyond, although because it was made by a provincial court judge, it does not bind other judges, or strike down the law. But it is a message to other judges that laws that are neutral on their face may be discriminatory if they cause serious harm to Indigenous individuals and communities.

Assessing that harm, Justice Gibson set out Pikangikum’s history: From self-reliance as a thriving, traditional hunter-gatherer society at least 3,000 years old to a community that, in 2012, Maclean’s magazine dubbed the world’s suicide capital. In 1954, crime was nearly non-existent; by 2019, over a two-month period, 600 people were locked up out of a population of 3,200 people on-reserve, the judge said, citing data from the Ontario Provincial Police.

In between came the residential schools – a man who was born in Pikangikum in 1955 testified that he was raped and starved during his nine years in those schools – and settlers who permanently depleted the stock of sturgeon. In the 1970s, people began to be jailed in large numbers, mostly related to substance abuse – although the ruling noted that the community is “ostensibly” dry under the terms of Treaty 5 between the First Nation and the Crown. The judge said the Crown has declined to enforce that. (The province said federal prosecutors enforce band laws; federal authorities did not participate in the hearing, the judge said.)

“The government is not fulfilling its treaty obligations and young Indigenous people are taking their lives in shocking numbers. This is happening right now and not because of things that happened in the distant past, but because of things that are being done and not being done as I am reading this judgement.”

Luke Hildebrand, a lawyer for the Pikangikum First Nation, said in a statement that the community is “exposed to a foreign criminal justice system not designed by or for them, and that is utterly incapable of accounting for their realities.”

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Jonathan Rudin, program director for Aboriginal Legal Services, a legal-aid clinic that intervened in the case, said the judge’s message "is that we have to stop doing what to the Canadian legal system is business as usual, and what to Indigenous people is simply the continuation of colonization.”

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