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By admin | February 16, 2011

Women and Mandatory Minimum Sentencing for Drug Offences in Canada: An Intersectional Analysis of Bill S-10

By Nathalie Down


As the American Democratic government takes initiative to move away from mandatory minimum sentencing for drug-related offences, the Canadian Conservative government moves directly towards it. Despite overwhelming evidence showing that mandatory minimum sentencing (MMS) does more harm than help, on May 5, 2010, the Harper government introduced in the Senate a legislation (Bill S-10) to create MMS for drug-related offences for the first time in Canada. The Canadian Bar Association (CBA) affirms that Bill S-10 would “create unjust and disproportionate sentences and ultimately would not achieve its intended goal of greater public safety” (CBA, 2010). MMS in America has resulted in more African Americans incarcerated today than were enslaved in 1850, a decade before the civil war began (Alexander, 2010). The fastest growing population being imprisoned for drug offences in America is women of colour. “Since 1986 the number of women of colour imprisoned increased by 800%, compared 400% increase for women of all races” (Incite, 2008). The Canadian government fails to acknowledge indisputable evidence showing that MMS reproduces systemic discrimination based on gender, race, class, age, and ability. MMS is ineffective in deterring crime and is extremely harmful for marginalized peoples. “In Canada, drug offences are both racialized and gendered, and poor women are most vulnerable to drug arrests and convictions” (Boyd, 2004, p.207). This paper examines how Bill S-10 disproportionately disadvantages women and how intersections of race, class, and gender exacerbate potential dangers.

Bill S-10

Bill S-10 reflects the Conservative government’s “Get Tough on Crime” strategy by proposing harsher penalties for drug crimes. It has appeared (and died) in parliament twice before in very similar incarnations as Bill C-15 in 2009 and Bill C-26 in 2007. The legislation imposes mandatory minimum sentencing for ‘serious drug offences’ for the first time in Canada, doubles the maximum jail time for growing marijuana to 14 years, and changes the classification of certain substances to ‘most dangerous’, Schedule I. ‘Serious drug offences’ are said to include production, trafficking, possession for the purpose of trafficking, importing and exporting, and possession for the purpose of exporting, of Schedule I and Schedule II drugs. “Trafficking” is defined as (a) selling, administering, giving, transferring, transporting, sending or delivering the substance, (b) selling an authorization to obtain the substance, or (c) offering to do anything mentioned in (a) or (b). Currently Schedule I includes drugs such as heroin, cocaine, ketamine, and methamphetamines. Schedule II includes drugs such as cannabis. However, Bill S-10 reclassifies all amphetamines, flunitrazepam, and GHB as Schedule I drugs, so offences related to these drugs will also receive mandatory minimum sentencing. The severity of mandatory sentencing is determined by the presence of ‘aggravating factors’ and ‘security, health, and safety factors’. The ‘aggravating factors’ involve offences committed: for the benefit of organized crime; involving use or threat of violence; involving use of threat of weapons; by someone who has previously been convicted of a drug offence; in a prison; by abusing a position of authority or access to restricted areas; in or near a school, an area frequented by youth, or in the presence of youth; through involving youth in the commission of the offence; and, in relation to a youth. The ‘security, health and safety factors’ are: the accused used property that belonged to a third party to commit the offence (i.e. rental property); the production constituted a potential security, health or safety hazard to children who were in the location where the offence was committed or in the immediate area; the productions constituted a potential public safety hazard in a residential area; and, the accused placed or set a trap. The mandatory minimum sentencing for the production of more than five marijuana plants is six or nine months (depending on presence of health and safety factors), with maximum penalty increased to 14 years. The mandatory minimum sentencing for ‘serious offences’ involving Schedule I drugs ranges from one to three years, depending on ‘factors’. The only exception for courts not to impose a mandatory minimum sentencing is if the offender successfully completes a Drug Treatment Court approved program, which uses the abstinence model of treatment.

Women’s Roles in Trafficking Drugs

Amnesty International explains that “women tend to be very small cogs in a very large system, not the organizers or backers of illegal drug empires” (ACLU, 2004). A large body of scholarship reveals that reasons behind women’s and transpeople’s involvement in the drug trade is often gender specific (Campbell, 2000; Boyd, 2004; ACLU, 2004; Incite, 2008; Reynolds, 2008, Gaskins, 2004). Legal scholar Shimica Gaskins (2004) describes a large population of women who are involved in producing and/or trafficking drugs “because of their financial dependence on, fear of, or romantic attachment to a male drug trafficker” (p.1533). Gaskins (2004) describes how MMS leads to mass incarceration of “women of circumstance” who have been coerced, forced, or persuaded into carrying drugs by the men in their lives. Gaskins (2004) argues that MMS in America has proved ineffective in reducing the production or trafficking of drugs and has led to soaring rates of draconian sentences for nonviolent, mostly low income women.
Research has revealed a “strong connection between women’s experience of violence and economic and social pressures and women’s involvement in the drug trade” (ACLU, 2004). Many women unable to find stable, non-criminalized work that pays enough to support their families turn to street economies to survive (Incite, 2008). Psychological research often relates women’s drug use as a means of ‘self-medicating’ to deal with violent abuse and childhood trauma (ACLU, 2004). Women then get involved with trafficking to support their drug habits. However, drug policy analyst Susan Boyd (2004) is critical of this psychological perspective because it denies women’s agency and invisibilizes the ways in which “women’s lives are shaped in a patriarchal, racist, and class-based environment” (quoted in Boyd, 2004, p.163). Canadian psychologist Bruce Alexander argues that neoliberal free market economies have created environments of social dislocation which leads people to use drugs negatively (Boyd, 2004). Alexander asserts, “in a free market economy, the spread of addiction is primarily a political, social, and economic problem” (Boyd, 2004, p.164). Feminist scholar Marylee Reynolds (2008) describes how neoliberal economic policies have driven many women to drug trafficking as a means of survival. Whether trafficking drugs to support an addiction, or to support a family, women are seldom the ‘king pins’ in the drug trade. MMS, acting under the false pretence of ‘equality’, effectively erases the marginalized position of women in a patriarchal culture that can lead them to become involved with the drug trade. MMS denies racial profiling that results in women of colour being targeted as drug traffickers (despite research showing that white women are more likely to be trafficking drugs).
MMS fails not only to address the gendered issues that likely contributed to women’s involvement in the drug trade, it also has significantly different effects for women who are sole caretakers of children.

Mothers Behind Bars

The issue of mothers, drugs, and incarceration is highly contested, and deeply rooted in a patriarchal history of regulating women’s bodies. Campbell (2004) explains how drug-using women are perceived as a threat to social order because they deviate from traditional notions of femininity and challenge their responsibility for social reproduction. “Fearing that women will become unfit or unwilling to serve as they have in the past,” policy-makers target mothers / women who use drugs as “symbolic distortions of maternity and femininity” (Campbell, 2004, p.6). Bill S-10 is no exception. Several of the ‘aggravating factors’ that increase the severity of the minimum sentence directly target mothers. For example, if there is an alleged “health or safety hazard to children who were in the location where the offence was committed or in the immediate area”, the mandatory minimum sentence will increase to three years. Most women who are trafficking drugs as a means to financially support their children do not have access to childcare, and must simultaneously care for their children while they work. This might take place in the form a woman dealing out of her residence while her child is playing, or sleeping, or watching television in the next room. Under this circumstance, she would receive a MMS of three years, while a man who dealt on the streets might not even receive a MMS because there was no ‘aggravating factor.’ Another ‘aggravating factor’ that directly targets mothers is if the “the accused used property that belonged to a third party to commit the offence,” (i.e. rental property). Returning to the example above, even if the mother arranged for daycare while she worked, if her place of residence was rented, she would be subject to an MMS of three year. In Canada, more than seventy percent of single mother in are renters (WHEN, 1997). Indigenous women and black women in Canada are also far more likely to be renters than white women or Indigenous and black men (WHEN, 2009).

In America, nearly 70 percent of women in prison were single parents responsible for young children prior to incarceration (Campbell, 2000). “A Canadian study found that over 80 percent of federally incarcerated women are mothers of young children” (CHLN, 2010). Separation from children ranks as the primary concern of mothers in prison, and leads to feelings of severe anxiety, despair and depression (Boyd, 2004). Many women lose custody of their children upon incarceration, especially when the offence relates to drugs. “It is well documented that imprisoning mothers has a very negative effects on their children” (Boyd, 2004, p.252). Upon incarcerating single mothers, their children are either sent to live with relatives or in foster care. It is widely known that children in foster care are often “victimized both physically and sexually by their caretakers” (Boyd, 2004, p.252). In Canada, Indigenous and black children are overrepresented in foster care, which correlates with the overrepresentation of Indigenous women and black women in prison (Boyd, 2004).

Mass Incarceration of Indigenous Women

The Royal Commission on Aboriginal Peoples and many provincial reports, such as the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, have identified problems of systemic racism in the enforcement of Canadian criminal law Based on the disparate impacts that MMS has had on racialized women in the United States, MMS will likely also exacerbate the over incarceration of racialized women in Canada, specifically Indigenous women whose lives continue to be shaped by colonialism.

The Downtown Eastside of Vancouver is one of the poorest neighbourhoods in Canada. It has the highest rate of active drug users in the country. Of its 16,000 residents, 5000 are Indigenous peoples, the majority of them women. Indigenous scholar Dara Culhane (2003) explains how colonial history behind the dire situation of these women is invisibilized through processes of pathologizing poverty, sensationalizing drugs and violence, and silencing resistance. Culhane (2003) reveals how these processes create a form of “race blindness”, ignoring the burden of social suffering carried by Indigenous peoples that evidences “continuing effects of settler colonialism, its ideological and material foundations, and its ongoing reproduction” (Culhane, 2003, p.595). Bill S-10 is evidence of this ongoing colonial governing mentality. It is those already suffering who will be most affected. Those who get arrested for trafficking are those whose activities are visible, those who don’t have wealth to hide behind. It is Indigenous women who will be most at risk with Bill S-10, not the drug lords. “Wealth serves to conceal and privatize what, here [in the downtown eastside], poverty reveals to the public gaze” (Culhane, 2003, p.596). Indigenous women represent less than two percent of the Canadian population, yet they represent more than twenty percent of female federal prisoners (Boyd, 2004, p.207). If Bill S-10 is introduced, these numbers will increase significantly.

Gendered Risks of Drug Treatment Court

Advocates for Bill S-10 argue that offenders who need help for their addiction will be diverted to Drug Treatment Court where they can complete an approved treatment program as a way to avoid incarceration. However, this process is not only flawed in its logistics, its application has dangerous gendered repercussions. The first logistical flaw is that there are only ten of these courts in the country, which severely limits access to them. Secondly, if a diverted offender fails to successfully complete the abstinence treatment program she returns to criminal court where she receives due MMS. The evaluation of the Toronto drug treatment court revealed that of the total participants (365) only 15.6% graduated from the drug treatment program, the rest were either expelled or withdrew (Allard, 2009).
For women, participating in drug treatment court is extremely risky. The programs are geared towards male participants and women find it unreflective to their needs. Being in a program with males can be traumatizing for women who are survivors of sexual and physical assault. There are many reports of women being assaulted by the male participants in the programs. Women also risk losing custody of their children should they fail to complete the unrealistic goals of the program. Furthermore, Indigenous women and women of diverse cultural backgrounds note that Christian theology underlies many of the programs and is reminiscent of residential schools (Boyd, 2004). The abstinence model of treatment demands rapid, linear, measurable progress, which does not reflect the lived realities of drug using women and this fails to help in a meaningful recovery (Rutman, Callahan, & Swift, 2005). The ‘treatment’ option proposed in Bill S-10 serves to further harm and discriminate against women by placing them in risky situations. This negative and potentially traumatizing experience can discourage women from seeking out meaningful treatment. Legal scholar Patricia Allard explains that “while diverting people struggling with addiction away from prison is certainly a sensible public policy approach, the Canadian drug court initiative is actually a quick-fix that has been inadequately evaluated; its over emphasis on punishment hinders the ability to treat drug addiction as a complex problem (Allard, 2009).


The content of this paper just scratches the surface of the innumerable ways that Bill S-10 will hurt Canadian communities. A 2002 review conducted by Justice Canada concluded that MMS are “least effective in relation to drug offences” and that “drug consumption and drug-related crime seem to be unaffected, in any measurable way, by MMS” (CHLN, 2010). With overwhelming evidence disproving the effectiveness of MMS in relation to drug crimes, why does Justice Minister Rob Nicholson claim that the “legislation is essential to assist law enforcement agencies in cracking down on drug producers who threaten the safety of our children, neighbourhoods and communities”? This analysis provided in this paper reveals that the safety of children, neighbourhoods and communities are actually threatened by the legislation! This disjuncture reveals Conservative have alternative political motifs and governing mentalities that value retribution over restoration and view drug use as a criminal problem deserving punishment, rather than a health problem requiring treatment, or a social / economic problem requiring intervention. In a recent interview in the Medical Post, addiction specialist Dr. Gabor Mate exclaims that “we have a federal government right now spending $11 billion to build more jails when they are cutting back on social services and they want to shut down the supervised safe injection site, even though there have been more than 24 studies showing its medical, social, and economic value. Practicalities have nothing to do with it!” It’s no coincidence that the Conservatives are pushing Bill S-10 as they simultaneously allocate billions of tax dollars to build new prisons. With crime rates steadily decreasing in Canada, Bill S-10 casts a net wide enough to pull in hundreds of thousands of new nonviolent criminals to fill these new empty prison cells and thus solve their created problem. Meanwhile, as poor, racialized, gendered populations get locked up, the entire ordeal is marketed to the public as a response to an outbreak of criminal drug activity and mass incarceration is justified as essential “security” measures necessary for the “safety our children and communities.” Billions of tax dollars that could be spent to benefit marginalized populations are instead being spent to construct unnecessary prisons and create legislation to fill the prisons with nonviolent, low-level drug offenders. Bill S-10 reveals dangerous governing mentalities of neoliberalism, colonialism, racism, and sexism. Bill S-10 must be stopped.


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