Effects of Mandatory Minimum Sentences on the Rights of the Indigenous Population in Canada: A Proposed Solution to Bill C-10's Conflict With Section 718.2(e) of the Canadian Criminal Code

Abstract

A number of Canadian laws underwent mass revision in 2010 with the passing of Bill C-10 – an expansive piece of legislation that amended a variety of laws, including the Canadian Criminal Code, lengthened sentences, and introduced a range of mandatory minimum sentences. Since its passing critics have noted the tension between Bill C-10’s mandatory minimums, and affirmative active legislation contained in Section 718.2(e) of the Canadian Criminal Code, requiring that judges consider the background and unique circumstances surrounding Indigenous offenders, and when appropriate, use discretion when sentencing. This thesis analyzes the feasibility of a safety valve for mitigating the conflict between Bill C-10 and Section 718.2(e) of the Canadian Criminal Code. In part, the thesis seeks to determine whether a safety valve option was considered during the framing of Bill C-10. The research focuses on the Canadian government’s role in the formation of the Canadian Residential School Program, and analyzes the long lasting impacts of the programs associated trauma in connection with 718.2(e) of the Canadian Criminal Code. Further, the study explores the conflict between Bill C-10’s mandatory minimums, and 718.2(e) of the Canadian Criminal Code’s judicial discretion requirement, ultimately suggesting that implementation of a safety valve may reduce the tension between the two pieces of legislation.