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LCJC - Standing Committee

Legal and Constitutional Affairs



OTTAWA, Thursday, September 22, 2022

The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:30 a.m. [ET] to study Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.

Senator Mobina S. B. Jaffer (Chair) in the chair.


The Chair: Welcome. I am Mobina Jaffer, a senator from British Columbia, and I have the pleasure of chairing this committee.


I’d like to take a few minutes to introduce the members of the committee participating in today’s meeting: Senator Boisvenu, Vice-Chair; Senator Batters; Senator Campbell; Senator Clement; Senator Cotter; Senator Dalphond; Senator Klyne; Senator Miville-Dechêne; Senator Pate; Senator Simons; and Senator White.


Today, we continue our study of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act. As senators know, we welcomed the minister yesterday to begin our study.

For our first panel today, we are happy to welcome from the Canadian Association of Elizabeth Fry Societies, or CAEFS, Emilie Coyle — no stranger to our committee — Executive Director, via video conference; and Nyki Kish, Director of Advocacy and Systems Change, by video conference. As an individual, we also welcome Janani Shanmuganathan, Partner, Goddard & Shanmuganathan LLP, by video conference. Welcome to all of you. We appreciate you taking the time to be with us again.

We will start with Ms. Emilie Coyle.

Emilie Coyle, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you so much. It’s a real pleasure to be here with you and this committee today. We’re very grateful for the invitation to attend and to speak with you on this important topic.

I will be sharing my time with my colleague, Nyki Kish. I would like to mention that although we have staff all over the country, our head office is located on the unceded and unsurrendered territory of the Algonquin people.

Earlier this year, when the House of Commons Standing Committee on Justice and Human Rights was studying Bill C-5, CAEFS, along with the Women’s Legal Education and Action Fund and the Black Legal Action Centre, submitted a brief to the House of Commons. We would be happy to provide that to you, as well, if you have not yet seen it. In that brief, we detailed our position on five areas of interest in Bill C-5, the bill before you.

To provide context, we believe that it’s no secret to you, members of this committee, that the Canadian criminal justice system discriminates against members of marginalized communities, and of particular interest to us — it discriminates against Indigenous women, Black women and gender-diverse people.

We recognize that Bill C-5 is a step toward the goal of seeking to reduce the crisis of structural racism, systemic discrimination and inequality in the justice system. However, it’s likely no surprise to hear that we do not see Bill C-5 as going far enough, either for the populations whom it will impact and certainly not for the many criminalized peoples whom it excludes entirely from its scope.

Today, we are here to help to contextualize this through the human and social costs resulting from the crises within our legal system, which includes the prison system, and to offer the five changes that we believe will lead to the full realization of this bill’s purpose.

For Bill C-5 to be drafted in a way that fully addresses the systemic inequality in the justice system and also helps this government to recognize and realize its commitment to reconciliation and its long-standing efforts to champion gender equality, we recommend the committee consider the following five solutions. We would be happy to examine these further during questions.

First, we recommend the removal of all mandatory minimum penalties. Barring that, at least remove those that have been found to be unconstitutional in the courts. Second, remove the bar on conditional sentences for offences with mandatory minimum penalties. Third, fulfill the Truth and Reconciliation Commission of Canada’s Call to Action 32, to allow trial judges, upon giving reason, to depart from mandatory minimum penalties and restrictions on the use of conditional sentences. I believe there is a bill before the Senate that has suggested language on this particular amendment. Amend subsection 718.2(e) of the Criminal Code so that sentencing judges will have the information required to pass appropriate sentences on Black defendants. Finally, fully decriminalize simple drug possession and expunge the records of those who have been sentenced prior.

I will now pass it to my colleague Nyki.

Nyki Kish, Director of Advocacy and Systems Change, Canadian Association of Elizabeth Fry Societies: Thank you, and hello.

As CAEFS monitors the conditions of confinement in the prisons designated for women across the country, we see human beings being harmed by the justice system’s reliance on mandatory minimum penalties every single day. We see harsh maximum-security units that are full of Indigenous women, gender-diverse and two-spirited people who are locked in cells for a minimum of 14.5 hours daily.

We see Black and Indigenous women, and gender-diverse people, come to prison from neighbourhoods that are under-resourced but over-surveilled. Those people are ultimately failed by multiple systems, and they end up being wrongfully punished by our legal system. We see countless incarcerated survivors of sexual and physical harm, dispelling the false dichotomy that continues to be raised around who perpetrators and survivors of violence are.

When imagining the justice system, people often stop at sentencing. However, working with people post-sentencing, as we do, we witness the ways in which mandatory minimum penalties work against the goals of successful reintegration by preventing people from leading the good, meaningful lives they could be living if they were not kept in a harmful prison environment that does not and cannot address underlying social needs.

We have a system that is translating marginal social location into risk then punishing with a debunked perspective that increasing punishment for certain crimes will deter people from doing those crimes, which we know is not true. Mandatory minimum penalties often permanently criminalize people, which denies their ability to lead good, full lives and meaningfully contribute to communities and society.

The implicit social messaging we are giving in Canada is that if you are poor or you don’t have white skin, you are undeserving of rehabilitation or a second chance.

Moreover, this bill excludes the one in four people under federal sentence in Canada with life and/or indeterminate sentences, sentences that are overwhelmingly held by poor and racialized people and which maintain those people under the correctional thumb until their deaths.

We must not leave out of the conversation that many nations globally view such sentences as unjust. Bill C-5, as it stands, only considers reducing systemic inequality for some. It is irresponsible to not acknowledge the body of evidence that demonstrates the myriad ways people suffer under the current laws. Our legislation should be changed to prevent injustice. We should do it right the first time.

Thank you.

The Chair: Thank you very much. We will now go on to hear from Ms. Shanmuganathan.

Janani Shanmuganathan, Partner, Goddard & Shanmuganathan LLP, as an individual: Good morning, and thank you for the invitation to speak today.

I’m a criminal defence lawyer, and I was counsel for Mr. Nur at the Supreme Court of Canada. The Nur decision was a decision where the Supreme Court struck down a mandatory minimum sentence for the first time in 30 years. It was a watershed moment, leading to a host of other mandatory minimum sentences being struck down over the years across Canada.

I come before the Senate today with the benefit of having litigated mandatory minimum challenges and with the stories of my clients who faced the mandatory minimum sentences that Bill C-5 would seek to repeal.

When I testified before the House of Commons, I shared with them the story of one of my clients. I’d like to share that story with all of you today as well, because it’s really important to remember that there’s a real person who is affected each time a mandatory minimum sentence is imposed in the courtrooms across our country.

One of those real people was my 26-year-old client, who, with no criminal record, walked into a convenience store holding a pellet gun that he had bought at Canadian Tire, showed it to a store clerk and stole $100. He was an alcoholic at the time and extremely drunk when he committed the offence, and he used those $100 to buy more beer. He was caught within a couple of hours and immediately confessed.

In the time between his arrest and sentencing, he completely turned his life around. He enrolled in university, got a girlfriend, attended Alcoholics Anonymous and even became a facilitator. The last time he drank alcohol was the day he committed the offence.

This client, this real person, received a 12-month jail sentence because that was what the mandatory minimum sentence demanded. No one in that courtroom, not the lawyers, not the judge, thought that this person should go to jail for the 12 months, stripped of the pro-social life he had developed only to be locked up in a jail cell. But they had no discretion, no choice. In the trial judge’s words, “It’s heartbreaking to send this person to jail, but I have no choice.”

I spoke to this client several times while he was in jail serving that sentence, and I witnessed first-hand the horrible toll it took on him. He had a mental breakdown and suffered from intense feelings of anxiety and depression before he was released.

Sending this person to jail didn’t achieve anything for anyone. It simply cost a lot of money and seriously harmed someone who had completely turned his life around. That’s only one example of the blunt effect of mandatory minimum sentences, but there are countless others.

The bottom line is that mandatory minimum sentences strip trial judges of the discretion to consider important things like the circumstances of the offence and the moral blameworthiness of the offender. It doesn’t allow a trial judge to stop and think, “Okay, what sentence does this person actually deserve?” Mandatory minimum sentences are a one-size-fits-all approach, except offenders come in different shapes and sizes.

Eliminating mandatory minimum sentences isn’t about being soft on crime. It’s about trusting our trial judges and appeal judges to impose a fair sentence within a reasonable range set out by Parliament. Even if no mandatory minimum sentences exist, offenders who deserve long jail sentences will continue to get those sentences. But offenders who don’t deserve those sentences, people for whom those sentences would simply be cruel, won’t get them.

Parliament has stressed in legislation that we need to consider every reasonable alternative to incarceration, especially for Indigenous people. But how can we do that when so many offences carry mandatory minimum sentences? We can’t and it’s impossible. This is an important reason why a bill, such as this one, is an important step.

The bill doesn’t eliminate all mandatory minimum sentences, but it does eliminate some. At the very least, we need a bill like Bill C-5 so that we can actually do something about sending people to jail when they shouldn’t be sent to jail.

Thank you again for the opportunity to present today, and I’m happy to answer any questions you may have.

The Chair: Thank you very much for your testimony and for taking on the case of Nur. We all read that case carefully. Thank you very much.

We’ll start with the sponsor of the bill, Senator Gold.

Senator Gold: Welcome to the witnesses. Thank you for sharing your expertise and suggestions. I have a question for Ms. Shanmuganathan.

As a committee, we’re doing our very best to get as much empirical data as possible, so that our study of the bill is well informed, but the data are not as complete or detailed as would be ideal.

One of the main questions, if not the main question, is how many people would be affected positively by this bill and, in particular, those who are Indigenous, Black, racialized or otherwise marginalized? Perhaps you can give us the benefit of your experience on the ground. Have you had clients who have been charged with some of the offences that this bill deals with? Have you had clients who would benefit from legislation were it to be passed in its current form?

Ms. Shanmuganathan: Thank you for the question. I’m not a statistician, so I can’t give you the empirical data, as much as I’d like to. But I can give you the lived experience that I have. This bill enables lawyers like me to go into a courtroom and say to a judge, “This is what the offence is. This is why my client committed the offence. These are all of the positive traits about my client, and this is the sentence that he actually deserves.” But the problem that you have with mandatory minimum sentences, it doesn’t allow me to ask for a sentence, anything, below the mandatory minimum sentence, even if that’s the sentence that my client deserves.

The example that I provided today in my opening about the client who stole $100 to buy more beer, this 26-year-old who was sent to jail for 12 months — that’s a real-life example of a person who would have benefited from Bill C-5. If that mandatory minimum sentence did not exist, he may not have gone to jail for 12 months. He may not have gone to jail at all. That’s why this bill is so important — to allow lawyers like us to go to courtrooms and ask for sentences that our clients truly deserve.

Senator Gold: Thank you. If I may, a brief follow-up. Again, I’m obviously not asking you to divulge information about your clients, but do you have clients who are currently facing charges that would benefit from the passage of this bill were it to be passed soon?

Ms. Shanmuganathan: Yes. That’s precisely the reason why I’m here. I have clients who are hanging on to this bill passing because if this bill passes, it will completely change their lives around. It may allow a person who shouldn’t be going to jail to benefit from this bill. I have actual clients for whom this bill would change their lives.

Senator Gold: Thank you very much.


Senator Boisvenu: Thank you for being with us.

I fully understand your fight and your goal to reduce racism and discrimination. These are very laudable goals. However, I do not feel that you are considering the dangers of Bill C-5 in terms of public safety, especially the injustices that will be perpetrated against victims.

I presented an example to the minister yesterday, and he had difficulty responding to me. Let’s take the case of an assailant who sexually assaults a woman and is sentenced to two years less a day. Under Bill C-5, the judge could choose to send him home under house arrest. Is it fair to a victim, a woman who has been sexually assaulted, for her assailant to not spend a single day in jail for the crime committed?


Ms. Coyle: As a trained lawyer — and it is often something that frustrates people — the answer is not always going to be straightforward. It is always going to be a “depends.” As our fellow witness today attested, it’s always on a case-by-case basis. Of course, with mandatory minimum penalties, it doesn’t allow for the discretion that we see every day is needed in the people that we work with.

We work in the prisons designated for women across the country, and there are people there who have been charged with sexual offences. If you talk to them about their particular story, you will understand that their lives have been marred by violence and sexual violence, in particular, for most of their lives. Yet they are now sitting in prison perhaps serving time for something that they have done that could have some context put to it, but the judge was not able to depart from the mandatory minimum penalty, and therefore they are being doubly or triply or quadruply punished. We see people every day who have experienced violence thousands of times in their lives, and there have not been repercussions or healing allowed to them.

It is a complicated answer. I understand it’s not straightforward, but I do think there needs to be some discretion —


Senator Boisvenu: Ms. Coyle, I understand your advocacy for those who are incarcerated, but I am on the other side of the spectrum. Put yourself in the place of a woman who has been sexually assaulted. Her assailant’s sentence is under two years and there’s a possibility for the judge to give a so-called soft sentence, which means in the criminal’s home. This victim sees her assailant not doing a day in jail even though she was sexually assaulted. Put yourself in the victim’s shoes. Has the justice system, for these victims, fully played its role of assigning a sentence proportionate to the crime committed?


Ms. Coyle: It’s a very hard and difficult question that you’re describing. I have a lot of empathy and compassion for people who have experienced sexual violence. I will say that we don’t have a system that actually aims to protect people. We don’t have a legal system that looks to prevent people from being sexually assaulted or experiencing sexual violence.

In addition to that, I think we have to be careful around whether or not a prison sentence is going to actually heal the person or provide the kinds of supports that person needs. I think both of us were providing testimony on the Victims Bill of Rights to the House of Commons earlier this year.


Senator Boisvenu: Recently, even the Quebec Court of Appeal asked judges to be much tougher in sexual assault cases. Will Bill C-5 run counter to the Quebec Court of Appeal’s position? Are we at cross purposes?

The Chair: Senator Boisvenu, give her the chance to finish her answer and then you may continue.


Ms. Coyle: When we both provided testimony to the House of Commons on the Victims Bill of Rights, I think both the people who were there providing testimony on behalf of victims and the victims themselves said that there is little in our system that provides healing and supports to them. Certainly, Bill C-5 is not going to be a catch-all to provide the healing and support that is so very needed for people who have experienced sexual violence in their lives.


Senator Boisvenu: I have no further questions.


Ms. Coyle: Thank you, senator.

Senator Dalphond: Ms. Shanmuganathan, when you appeared at the House of Commons committee, you spoke about the effect of criminal records on people’s successful reintegration. Since then, the bill was amended so that criminal records for drug possession will be automatically sequestered after two years.

Can you tell us about the effects that will have on people whom you represent?

Ms. Shanmuganathan: The sequestering of the criminal records would benefit them, because what we fail to realize is giving a person a criminal record has ramifications beyond the courtroom. It affects their ability to get employment, housing and pursue certain kinds of jobs. It affects the entirety of their life and not just their life but also the lives of children they may have or parents they’re responsible for. Giving a person the opportunity to free themselves from the shackles of a criminal record can only benefit them.

Senator Dalphond: Essentially, that’s probably one of the consequences of your testimony that was added after you and some other witnesses appeared before the House.

I thank you also for not only arguing cases but writing about the law. I read with great interest your article commenting in the Supreme Court Law Review in 2016. There you argue that the answer must be within Parliament and not within the courts because you believe that the case-by-case approach is not effective.

For you, I understand the best approach is to go for Parliament exercising its power and defining the net of what should be covered by MMP and what is not to be covered by MMP.

Ms. Shanmuganathan: Yes, that’s absolutely right. As someone who has litigated these constitutional challenges, it’s time-consuming and frustrating to have to go to a court each and every time you’re confronted with a mandatory minimum sentence and ask them to find it unconstitutional.

Really, it’s up to Parliament. It’s up to all of you and the way this government works to do that job of eliminating mandatory minimum sentences and putting the discretion back in the hands of trial judges, where it belongs.

Senator Dalphond: Thank you.

Senator Simons: Thank you to all of our witnesses.

Yesterday, we were privileged to have Minister David Lametti before us, and I asked the minister about the fact that some of the mandatory minimums that have not been included in this bill include several that have been struck down by multiple superior courts across the provinces. The minister’s response was that only one of them, the Nur case, had been struck down by the Supreme Court of Canada.

I wanted to ask both Ms. Shanmuganathan and Ms. Coyle if you think it is sufficient that this bill does not engage with a number of mandatory minimum sentences that have already been deemed unconstitutional by multiple provincial courts.

Ms. Coyle: That was a question that I believe I addressed in my opening. I do not think it’s sufficient. I think that all mandatory minimum penalties, including the ones that were already struck down by various courts across the country, should not be in place any longer. In our submissions to the House of Commons, we submitted this report, and we included an addendum which includes all of the mandatory minimum penalties that are not in this bill but which have been found unconstitutional. I’d be happy to provide that to you as well.

The Chair: Ms. Coyle, can you send that to the clerk, and he will circulate it to us? Thank you.

Ms. Coyle: Yes.

Ms. Shanmuganathan: I echo Ms. Coyle’s comments that the bill could certainly go further and eliminate the remaining mandatory minimum sentences that have already been struck down. But it could frankly go even further and just eliminate all mandatory minimum sentences. Because this notion that, for the ones that are being eliminated, we can leave it with the trial judge to exercise the appropriate discretion to put the appropriate sentence for the offender, they can do that in terms of all the offences that are covered by the mandatory minimum sentences.

At the end of the day, we don’t need mandatory minimum sentences to ensure that the appropriate sentence is being given for the offender.

Senator Simons: When several of us put that question to the minister yesterday, his explanation was that the two dozen or so sentences that are encompassed by this bill capture most of the people who are incarcerated, including the vast majority of those who are Indigenous or racialized.

Ms. Coyle, do you feel that is an accurate assessment that this particular suite of criminal sentences will encompass a significant majority of the people that you serve?

Ms. Coyle: Unfortunately, I’m also not a statistician, so I don’t have that data readily available. But I suppose it’s important for us to bring the human side to this conversation. Although there may be conversations that we could have about this affecting a critical mass of people, every person that is left behind is a human being. Those ripples — their family members, their communities — are all feeling what it feels when that particular person is subject to a mandatory minimum penalty.

Looking, for example, at one of the sentences that is not covered under this bill, a first offence weapons trafficking in firearms. I don’t know what the circumstances would be for that particular offence, but certainly we see a lot of women who are being subject to coercive control in their lives who are participating, perhaps, in something that happens against their will. They would be caught up in this particular circumstance and would be subject to a mandatory minimum penalty, for example. That’s someone we certainly wouldn’t want to see going to prison either.


Senator Miville-Dechêne: I too will ask my question in French. Both of our guests may answer according to their expertise. This bill abolishes about twenty mandatory minimum sentences, and some citizens are worried that it will result in more offenders getting a suspended sentence, that is, a sentence in the community, so they will not do time.

Do we have any numbers to say whether serving a sentence in the community results in a greater or lesser chance of reoffending than serving a sentence in prison? Obviously, this is to try to assess the public safety risks when there are more conditional releases.


Ms. Coyle: I might pass this question to my colleague Nyki to answer.

Senator Miville-Dechêne: If you don’t have statistics, what has been your experience?

Ms. Coyle: Yes. Thank you.

Ms. Kish: Thank you so much. Daily, we see a prison system in crisis that’s incapable of resolving the social harm that it seeks to, when we send people to prison.

I’m on the phone almost every single day with officials from the Correctional Service of Canada who share with me that they’re not responsible for who comes to prison. Once people come to prison, however, they’re tasked to deal with the aftermath of the pandemic in addition to the long-standing crises that are playing our system such as access to vital programs. There is no trauma counselling; there is no addictions’ treatment. There are not the services that exist in the community that can resolve the risks that we seek to resolve.

If we’re thinking about the prison system as a place to resolve social harm, we need to first look at it and recognize that it is not doing that and then look to the community where our organization, for example, has local Elizabeth Fry Societies across the country that can provide these services, which have been proven to keep people out of prison and provide them access that they need to the social determinants of wellness that resolve the social harm that we seek to.


Senator Miville-Dechêne: Does Ms. Shanmuganathan have any comment to add on the risks of reoffending?


Ms. Shanmuganathan: I suppose I have a couple of things to add. First, we must bear in mind that when a person is given a sentence in the community, as part of determining whether that sentence is appropriate, a balancing takes place. One consideration is: Is this a public safety concern? Can this person serve out their sentence in the community without it harming the public in some way? That’s considered as part of the determination of whether this person should serve their sentence in the community.

Second, when a person gets a sentence in the community, for example a conditional sentence, if they breach that sentence in some way — that is, if they commit a crime or it is alleged they have committed a crime — the sentence converts into a jail sentence. They go back to jail.

It’s important to bear in mind that if you sentence a person in the community, there are all of these mechanisms to ensure that they go back to jail if jail is deserved at that moment.


Senator Miville-Dechêne: My question is more specific than that, and maybe the numbers don’t exist.

Are we able to compare the risks of reoffending when serving a sentence in the community or a prison sentence?


Ms. Shanmuganathan: It depends on what you consider the risk to be. Are we talking about the risk in the moment? That is, the idea that if they are in jail, they can’t hurt anyone in the community because they are in jail. Or are we talking about a long-term risk? Are we talking about is this person going to be a better person in the long run? Is this person going to live a pro‑social life in the long run if they serve their time in jail or if they serve their time in the community? They’re given a better chance of being more pro-social if, instead of sitting in a jail cell twiddling their thumbs, they can be out in the community, they can get a job, they can get housing and they can be with their family. Who is going to be the better person in the long-run? I say the person serving their sentence in the community has a better chance.

Senator Miville-Dechêne: Thank you.

Senator Pate: Thank you to all of the witnesses not only for appearing today but also for all of your work.

I want to follow up on the questions of my colleagues starting with Senator Gold’s and Senator Dalphond’s. I noticed in the Canadian Lawyer magazine article you referred to, that you talked about the fact that minimum sentences preclude courts from taking into account the specific facts of the offence or the individual and that this is why, time and again, courts have found minimum sentences to be unconstitutional. They are a one-size-fits-all solution that creates more injustice than it solves.

I just came from a meeting with the group of Aboriginal people and was presenting with a woman serving a life sentence whose case we’re currently trying to undo. One of the issues raised by the Indigenous leaders there was exactly what you just responded to Senator Miville-Dechêne. That is, we know two things happen when people are imprisoned. They are more likely to end up disconnected from their community, as you’ve indicated, but it is also very difficult for them to get on with their lives again once they’re out. Furthermore, if they’re serving long sentences, many may be on parole for a long period of time.

Senator Gold asked you what the passage of this will mean. We know from the limited data that justice has been able to provide that it will have a negligible effect on the incarceration rates for Indigenous and Black people. What would the impact of the type of amendment that you’ve recommended have, if either all mandatory minimum sentences were repealed or if judges were permitted, in the sentences that aren’t repealed, to utilize their discretion?

Ms. Shanmuganathan: I’m happy to respond first, thank you.

I don’t have the data. I wish I had it, though. Again, from my own personal experience having litigated these minimum challenges and having made submissions on behalf of offenders, it’s going to affect positively each and every case that I do.

I can go to court and I can ask for the sentence that the person deserves. If it’s going to have a positive impact in the cases that I litigate, it’s going to have a positive impact on the cases that all criminal defence lawyers litigate. You can only hope that it’s going to have some effect, even if it’s a negligible one, on the overrepresentation problem but it’s going to enable us to at least ask.

Ms. Coyle: From our perspective, senator, as you’re well aware — and you’ve been into the prisons; you’ve taken other senators into the prisons — we now see from the Office of the Correctional Investigator that Indigenous women and gender diverse people now make up 50% of the prisons designated for women across the country. Often because of the racism that exists within our system, those people, Black and Indigenous women, are overly punished more than their White contemporaries.

If mandatory minimum penalties were no longer utilized, then we would have an opportunity to work with both defence counsel and the judiciary to present to them the particular circumstances of the person who sits before them so that they can utilize their discretion in sentencing, as my colleague has just said.

Ms. Kish: There are three main points in the correctional process that would be positively impacted were all our suggested amendments be implemented.

First, right now, so many women and gender diverse people coming in under mandatory minimum principles are pushing the prison system’s overcapacity to such an extent that the Edmonton Institution For Women, for example, is at intake. When people are first coming into prison, they are being forced to ship women and gender diverse people to prisons across the country where they have no access either to their community or to any of their supports, or to their family or their children. They’re really suffering and their communities are suffering and the prison systems don’t have the supports and cultural services in place in the other regions to accommodate them. So we see intense harm being produced at the prison system at the initial level.

Beyond that, for all the people who are in prison under mandatory minimum penalties and who would presently not be supported by this bill but could be if they are in prison, complete their programming and are able to access gradual release, just as we should be trusting our justices on what sentences should be implemented, we should be trusting our prison system on when to let folks out of prison. With parole ineligibility dates, people can’t do that. So we’re finding people incarcerated for much, much longer than it could ever be argued would create any benefit. Beyond that, in the case of life or indeterminate sentences, with mandatory minimum penalties we see people on parole for 20 to 30 years really meaningfully contributing to society. But the system is not able to reallocate its resources into reducing actual social harm because of these penalties. Thank you.

Senator Pate: Thank you.

Senator White: Thanks to the witnesses. I understand and don’t disagree with the concerns raised about mandatory minimums and in fact will support the legislation. However, I am concerned about something that continues to be raised around community supports for offenders who don’t find themselves in our prison system.

I worked for 19 years in the Arctic for the RCMP, and I can tell you that those communities do not have resources in any of them when it comes to trying to deal with people who will not go to jail as a result of removing mandatory minimums. I’m not saying we shouldn’t remove those as a result, but I think there needs to be a longer and greater discussion around the lack of supports in communities across this country not only for offenders but for victims. I use as an example, Ed Horne, who was a school teacher who sexually abused hundreds of children in Nunavut over a 10-year period, and the number of people I came to deal with as a police officer who not only didn’t get help as an offender, they didn’t get help as a victim.

I wonder if you could speak to the fact that the reality is that while we say we won’t send people to jail because mandatory minimums don’t work — and I agree — doing nothing in those communities will not be the solution. What would that look like? Ms. Coyle, maybe you could go first.

Ms. Coyle: Thank you, senator. That is something that we think about all the time. We are currently doing work in the North as it was identified as a big gap in terms of services for those who have been criminalized or who are in danger of becoming criminalized, as you are so rightly pointing out. We are currently spending over $2.5 billion on our prison system, and there are arguments to be made about how we should be reallocating those funds into communities to ensure that communities have the resources they need to prevent people from becoming harmed. That should be the goal of our justice system — prevention of harm. Everything that we’re talking about when it comes to police and prisons is after the fact. But wouldn’t we want to ensure that people are not being harmed in the first place? The only way to do that is to ensure that we are allocating resources correctly.

Unfortunately, we spend a lot of time and resources talking about after the fact when we should be talking about before the fact and the upstream investments in communities.

Senator White: I have nothing further, Madam Chair. I probably could have done that as a statement without a question.

Ms. Coyle: I underscored it with you as well, senator.

Senator White: Thank you very much.

Senator Batters: Ms. Coyle, in your opening statement you referred to your brief, I believe, and I don’t think we received it for this committee. Did I misunderstand you, or do you have a brief to provide to us? Otherwise it’s quite a short opening statement to try to set forth some of your recommendations.

Ms. Coyle: Yes, we do have a brief that we provided to the House of Commons committee earlier on Bill C-5. I wasn’t certain if you had seen that. We will provide it to you, certainly.

Senator Batters: Thank you. There are just so many documents that come in for these kinds of things, so that would be helpful. Thank you.

In your opening statement, you talked about how your number one recommendation was to remove all mandatory minimums. I’m wondering if you’re actually contending that the mandatory minimum sentences for murder be removed, which would be 10 years without the possibility of parole for second-degree murder and 25 years without the possibility of parole for first‑degree murder. Is it your position that you want even those mandatory minimum sentences for murder removed?

Ms. Coyle: I want to preface my answer by saying that it is not our position that accountability should not come into question. Certainly, accountability for harm is at the forefront of our minds every time we do this work. However, yes, our recommendation is that all mandatory minimum penalties be removed, including those that you mentioned.

Senator Batters: Wow. Ms. Coyle, you have mentioned the overrepresentation of Indigenous offenders in prison. That is something that this committee is certainly aware of and concerned about. Chief Darren Montour of the Six Nations Police Service stated at the House of Commons committee:

The Gladue case law for sentencing purposes also has a great influence on whether or not an offender receives a custodial sentence. I can appreciate the statistics regarding the overrepresentation of indigenous offenders in our jails, but along with the rights of offenders, victims and victims’ families deserve rights as well. Gladue has a place in sentencing of certain individuals, but those repeat offenders know the difference between right and wrong, and the sentencing principles under Gladue are exploited to the benefit of these offenders.

Also, Chief Robert Davis from the Brantford Police Service shared the same concerns about the weakening of sentences and its impact on Indigenous victims of crime, and he said:

With Bill C-5 and the proposed changes now, we are going to see sentencing become a joke, to be quite candid. The perception of the victims of crime will be, once again, that their rights have been given to the criminals.

So, Ms. Coyle, how would you respond to Indigenous victims of crime about the removal of mandatory minimum penalties for offenders who target and victimize their communities?

Ms. Coyle: One of the things we brought up in our submissions was the fact that the people we work with have been both victims and perpetrators of harm in their lives and that there is no dichotomy. In the work we do, there is no separation between somebody who is merely the person who has been a victim of a crime. So it’s important that we understand that nuance.

The other thing to understand around the Gladue sentencing principles is how unevenly they are applied across the country. Many of the people we see going into the prisons designated for women, who are Indigenous, are coming from the Prairies. If we were to look at the use of the Gladue sentencing principles across the Prairies, we would see that they are very infrequently utilized, if at all. It would be really interesting for us to look at how often those are used and if they are seen as being helpful in sentencing in those regions. I think that would provide us with some really great data to examine that whole question in its entirety across the country.

Senator Batters: Thank you. I’m sure as the study goes on, we’ll hear more about data, because I heard a lot this morning about how we don’t have the data or the statistics. I’m not a statistician. Of course, neither are either of you, so we wouldn’t really expect that from you. However, hopefully we’ll have some witnesses that can actually give us some data, because that’s very important for evaluating this bill properly. Thank you.

Senator Clement: Thank you to the witnesses for not only being here but for all the work you do in communities.

I agree with Senator Batters on the data piece. It just feels like we’re lacking a lot of that, so it makes this conversation very uncomfortable.

I was reminded yesterday in our conversation with the minister that there is a very intense political backdrop to this conversation. I remember the conversations around mandatory minimums, not as a lawyer but as a Canadian. We were being told that we would feel safer with mandatory minimums — that there would be clarity; that there would be deterrence.

I’m not sure that’s where we’ve ended up. I am sure — and the data does say for sure — that what has worked is the disproportionate incarceration of Black and Indigenous people. That’s worked. But the deterrence, the feeling safer — Ms. Kish, you made comments about deterrence. Could you lean into that a little bit? Because if this hasn’t worked, why aren’t we speaking the truth to people, politically? Why aren’t we telling them that this hasn’t worked and that we’re not feeling safer? There has been no deterrence and these don’t work and they should all be removed.

Ms. Kish: Thank you. We completely agree, and we agree because we witness it. We believe that were Canadians to really see what’s happening — the mechanisms of our correctional system from arrest to the end of one’s sentence if one’s sentence ever ended — they would be very concerned, because it is not working.

Not only do mandatory minimum penalties not work, but the structure of the correctional system itself is producing harm in many of the ways we’ve mentioned and many that we have not.

Although we bring an absence of actual data into conversation today, the CCRSO does point to even looking at just the impact of gradual release; so just letting someone out prior to the end of their sentence has overwhelming impacts on lowering recidivism. We see that putting people into communities albeit acknowledging that communities are tremendously under-resourced is the solution.

There are great examples in Canada of things that work. I point to a transformative justice organization in British Columbia called L.I.N.C. Society that supports people who have both survived homicide and perpetrated serious harms of many. It works to rebuild and strengthen communities from a care-based model.

There are myriad examples globally of things that do work. Yet in Canada, we continue to put the responsibility of resolving social harms into a model that is proven to fail.

Ms. Coyle: I agree with my colleague. We spend many hours speaking about this, and we certainly see the people who are in the prison system as those whom we have failed the most in our society. It’s the people who are the poorest and who have been marginalized by various systems, including the child welfare system and the health care system, and we end up criminalizing them in overly punishing ways that do not match what has happened in their lives.

I can give the example of a woman I worked with. She was a business owner in Montréal — a Black woman and a single mother. She ended up getting a five-year sentence because she was present when somebody was fighting somebody else. She got a higher sentence than the man that she was with, who was the perpetrator of the harm in that case. The judge, in her case, said to her, “You should have known better.”

It is that kind of racial and gender discrimination that we see over and over again in our courts. With the reduction or the elimination of mandatory minimum penalties, at least we could see some beginning of change for those people who are most affected by those penalties.

Senator Klyne: Welcome to our witnesses, and thank you very much for the expertise you’re sharing with us.

I have a question for Ms. Coyle, and if time permits, Ms. Shanmuganathan.

Ms. Coyle, if passed as is, what do you expect the impact of this bill will be on Indigenous, Black, and racialized women and gender-diverse people who currently have or had prior involvement in the criminal justice system? Does it go far enough to address or reduce the disproportionate representation of those groups in custody? If not, what else could the federal government do to position this bill for success?

Ms. Coyle: It goes part way. It could go further by reducing all mandatory minimum penalties. Then we would see how a commitment to reconciliation through recognizing the Truth and Reconciliation Commission’s Call to Action 32, which asks for trial judges to be able to depart from mandatory minimum penalties and reduce conditional sentences where they can. That would hopefully have a huge impact on the people we work with, because the people who made those recommendations did so with the data, with the understanding of the background and were certainly experts in the matter when they made that recommendation.

I hope this government will take that quite seriously.

Senator Klyne: Ms. Shanmuganathan, I take it from your opening remarks that you think this bill will have a tangible impact on the way that court cases will be handled for individuals who are accused of crimes that may no longer have minimum mandatory punishments attached to them. Do you think this bill will positively address the disproportionate representation of Indigenous and racialized offenders in custody?

Ms. Shanmuganathan: I would echo what Ms. Coyle said: I think this bill goes some way; it doesn’t go the complete distance. To truly reduce the problem of over-representation of Indigenous and Black offenders, we need something more. We need to work on things at the front end to help people such that they don’t need to commit crime. The over-representation problem comes at the end of the whole passage of going through the criminal justice system.

If we’re able to ask for a particular sentence and the sentence that a person deserves in each and every case, because there is no longer a mandatory minimum sentence — hopefully that has some impact on the over-representation problem. However, again, I don’t have the data, and I’m not a statistician.

Senator Cotter: Thank you to the witnesses for their thoughtful submissions and presentations.

I have two questions. Maybe I should start with Ms. Coyle. You described five recommendations that you have with respect to this legislation. I’m wondering whether they are all conjunctive in the sense that you’d like them all done. I ask that particularly in the context of, on one hand, the removal of all mandatory minimums and then a recommendation that there be, essentially, an exceptions provision with respect to mandatory minimums.

Could you speak to that? If it’s not the whole package, is there a prioritization with respect to the two that I’ve mentioned?

Ms. Coyle: You’re asking me some difficult questions, senator. Obviously, I would prefer all five of our recommendations to be taken, but yes, if I were to choose one, I would certainly look to the experts who made the recommendation of the Truth and Reconciliation Commission and look to prioritizing the departure for mandatory minimum sentences, allowing trial judges to do so and also the restrictions on the use of conditional sentences. I would prioritize that one.

Senator Cotter: Thank you.

I will ask a somewhat similar question to Ms. Shanmuganathan. You’ve spoken about the challenges that are faced by taking constitutional cases, as you have done, and the burden that puts on individuals. If we are looking at the question of removing some mandatory minimums versus the adoption of the exceptional circumstances approach, do you have a view between those two as to which would be likely more effective and more useful — not so much useful to you and your clients but which might work better within the criminal justice system?

Ms. Shanmuganathan: I think removing mandatory minimum sentences will be more useful because it creates more clarity. It takes away that minimum and tells judges to do the balancing and use their discretion, which is something they are required to do for each and every case. Leaving mandatory minimum sentences and creating an exception or clause that allows them to exercise their discretion, where appropriate, is only going to create further litigation around how we consider what “exceptional” means, what “exception” is to this person and “exceptional” as compared to what. Conversely, it’s nice and simple to say to trial judges, “Just do the job you’ve been doing for each and every case,” which is to look at the circumstances of the offence, the circumstances of the offender and impose the appropriate sentence. They already do that.

The Chair: I have a question. First, I would like to thank Ms. Coyle and Ms. Kish for their work. When I’ve gone into prisons with Senator Pate, it’s obvious how much work you do. Thank you so much for that.

I have a question for you, Ms. Shanmuganathan. It is a very basic question, and it goes back to what the sentencing principles are.

In his very articulate speech in the Senate, Senator Gold, the sponsor of this bill and also the leader of the Senate, spoke about trusting our judges to do the job. Those of us who have been in the profession believe that’s what we should do — trust our judges to carry out sentencing principles.

When we do mandatory minimums, we are passing laws, in the cold room of the Senate or the House of Commons, on what the sentencing should be. I’d like you to do a basic course; if there were no mandatory minimum principles, how would we go about it? How would the lawyer and judge proceed?

Ms. Shanmuganathan: To clarify if there were or were not mandatory minimum sentences?

The Chair: If there were not.

Ms. Shanmuganathan: We would go to court and we would be able to furnish information about our client. We would be able to talk about the circumstances of the offence, including why potentially this person committed the offence. We would be able to avert to case law, case law which doesn’t incorporate the mandatory minimum sentence, and to offences for which this sentence has been given. We can refer to other people who have committed similar offences and talk about the sentences they have been given. We could go to the judge and say, based on the sentences people have received in the past, this is who this person is; this is how the offence was committed and why; this is the appropriate sentence that this person should get.

A mandatory minimum sentence essentially makes irrelevant some of this background information because, no matter what the background information is, it acts as a floor, and you can’t give anything below that floor. That’s the starting point. You can make the pitch that you want to make, but you can never go beyond that floor.

The Chair: It takes away the issue of sentencing principles that criminal lawyers have worked on for years. When I was practising criminal law, we would decide, “Okay, on this case we will plead guilty.” At that time — it shows my age — there weren’t that many mandatory minimums. We could just look at this person and these circumstances and not take up the time with a court case because we stood little chance of convincing the judge on this particular case. All that is gone with mandatory minimums; isn’t that correct?

Ms. Shanmuganathan: And, in fact, what I would say in terms of the guilty plea is that the existence of mandatory minimum sentences may only encourage people to plead guilty when they don’t need to or shouldn’t because if they were to go to trial on a particular charge and lose, then they would face the certainty of getting at least that mandatory minimum sentence, if not something higher. If something is waved in front of them, saying, “If you plead guilty to this lower offence, you can get a sentence that is not going to be the mandatory minimum sentence,” it becomes all the more appealing for that client to plead guilty.

When we argued Nur as part of our factum, we had a section in the factum that said why mandatory minimum sentences do not work. We talked about some of the literature on why it doesn’t achieve deterrence and some of the negative ramifications of the existence of mandatory minimum sentences. If any of you would like to take a look at that, I can provide it to the Senate, or you can go on the Supreme Court of Canada website and find the factum.

The Chair: Can you provide that to the clerk, please?

Ms. Shanmuganathan: Yes, absolutely.

The Chair: Thank you very much for your work on Nur. We certainly all have been reading the case and are very interested.

Thank you to all three witnesses for the work that you do.

Senators, we have run out of time for the second round. We will go to our second panel.

On the second panel, we have, as an individual, Michael Spratt, partner at AGP LLP, who is no stranger to our committee. Welcome back. From the Regina Drug Treatment Court, we have Judie Birns, manager, by video conference, and from the Indigenous Bar Association, Alain Bartleman.

Mr. Bartleman, we’ve often heard from you and it’s good to have you again. Thank you.

We’ll start with Mr. Spratt who is here in person.

Michael Spratt, Partner, AGP LLP: Thank you very much. I am a lawyer certified as a criminal law specialist by the Law Society of Ontario, and I’m a partner at AGP LLP here in Ottawa. I’d like to touch briefly on the three main features of this bill: the repeal of some mandatory minimum sentences, the change of availability to the conditional sentence regime and measures to deal with drug offences.

I’ll start with the minimum sentence question. The embrace of mandatory minimum punishments as a sentencing tool is misguided. The evidence is clear that mandatory minimum punishments are ineffective and they are dangerous. They do not deter crime. They do not increase public safety. They disproportionately affect Indigenous and other racialized groups. They are incredibly expensive.

In the 20 or 30 times that I’ve testified before this committee, a lot of it has been on minimum sentences. I know the committee has looked at reports, like the federal government report from 2017, which talk about some of those problems with minimum sentences.

In 2016, the Supreme Court said that mandatory minimum sentences for offences that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence.

I’ve seen the impact of mandatory minimum penalties. Some of my clients have pled guilty knowing that they will receive the mandatory minimum penalty if they go to trial, and yet they’re offered something less than that. These are the hardest cases because I’m worried about wrongful pleas and wrongful convictions. On the other hand, I’ve seen clients who admit their guilt, but they know they will receive a mandatory minimum punishment anyway, and so there is no incentive for them to do the right thing and resolve it and spare the justice system and victims of crime coming to court to testify.

It’s a very positive step that Bill C-5 removes some of these corrosive minimum penalties, but it doesn’t go far enough. We need to eliminate every single minimum penalty from the Criminal Code. Yes — anticipating some questions — that includes minimum punishments for murder.

This is a particularly difficult case because it impacts a wide range of people. I’m thinking of abused women and vulnerable individuals who commit these offences because of that abuse and then are faced with this coercive and perverse mandatory minimum sentence that has them re-victimized again and put in that position where they have to choose to plead guilty to a lower offence or go to trial.

Here’s your history lesson. The only reason the minimum sentence for murder was found to be constitutional by the Supreme Court in Luxton is because there was the possibility of a review of that sentence through the Faint Hope Clause, a clause which no longer exists.

I will move to conditional sentences because I’m cognizant of the limited time here. The amendments are desperately needed. On the ground, conditional sentences bring efficiency and fairness to the justice system, and they can be imposed only in a narrow range of circumstances, even with this amendment, for offences under two years of imprisonment and when community safety would not be endangered.

Conditional sentences provide significant restrictions. They can denounce and deter crime. They are a public example to the community of a sentence.

They can be very restrictive and punitive, but they can also be rehabilitative. Unlike traditional jail, where there isn’t much rehabilitation, conditional sentences can come with that rehabilitation, with strings attached, and offenders can be required to seek counselling, maintain employment, perform community service and make reparations to their victims.

That is exactly what we want in a sentence. I have had many clients, probably over a hundred, who have received a conditional sentence. I checked my files before I came here today. I’ve had three clients who have breached the conditional sentence. These sentences are strictly monitored, more often by GPS conditions. These sentences allow my clients to keep their jobs, pay their taxes, all the while under strict supervision. That’s exactly what we want as a community.

Very briefly, I want to talk about the drug amendments.

Canada is in the grips of a deadly overdose and opioid epidemic. In 2020, more people died in British Columbia of overdoses than car crashes, homicides and suicides combined. Since 2016, well over 20,000 Canadians have died of an overdose. This year alone, 10 of my clients have succumbed to overdoses.

The problem here is that people don’t lead incremental lives, and they’re not dying incremental deaths. We need to do more than simply give discretion to police officers.

I want to give you one example. I remember I was testifying here and in the House on a bill that gave police officers the discretion to divert, through non-court processes, people accused of bail breaches. That was supposed to unclog the system and reduce the impact on vulnerable and marginalized communities. In Ottawa, the police have used that four times in over two or three years, maybe even longer at this point. It’s getting a bit long in the tooth. Police officers don’t use that discretion. It doesn’t work. So if they’re not using that discretion, this provision doesn’t offer any change or any hope. It’s window dressing, just as that 2018 legislation was about bail breaches.

The answer to this growing problem is not to give the police more power and more discretion; it is to remove some of that power and remove that discretion by decriminalizing all drugs. Then we can move on to some hard conversations about safe supply and how we go about saving lives. We need decriminalization and safe supply.

In this bill, for the minimum sentence part: B+. It gets us part of the way there. Conditional sentences: straight A’s on that. This decriminalization portion is just setting us up to fail, and we need to do better. I hope there can be some amendments there.

The Chair: Thank you very much, Mr. Spratt. We will now hear from Judie Birns of the Regina Drug Treatment Court.

Judie Birns, Manager, Regina Drug Treatment Court: Good morning. I’m here to provide some perspective on treatment alternatives, so I will get into what drug treatment court is and how we work with individuals.

The Regina Drug Treatment Court opened in 2006, partnering with multiple ministries in providing wraparound services for those who are addicted, facing a significant custodial sentence and want to make a change to their lifestyle.

The Regina Drug Treatment Court uses a delayed sentencing model. Upon completion of the assessment phase, they would enter pleas and are given a sentencing position by the Crown, should they not successfully complete. When they graduate, they are sentenced at that time.

The charges that individuals come into drug court with are not just drug offences, but include robbery, break and enter, fraud, et cetera, which are all related to obtaining money to obtain drugs for personal use.

We provide programs Monday to Friday, 9:00 to 3:30, call-ins on weekends and holidays. Court attendance is weekly, and that connection with the judge is critical to success.

Because of the complex needs of this population that range from poor health, mental health issues, children in care, trauma and relationship issues, we have a wide range of programming. Areas addressed are addiction, criminal thinking, life skills, cultural identity, mental health concerns, physical concerns, anger, relationships and parenting, budgeting, employment skills and connection to educational opportunities. It’s very individualized.

Staffing includes a manager, myself, addiction counsellors, a psychology nurse, probation officer and income assistance worker. We have access to elders through the cultural brokers at the Health Authority, and our other partners are the judge, Crown and defence who are part of the regular team and appear weekly.

Many of the clients who enter the program have never sought treatment for substance use. This is not something they have ever considered. They are stuck in a cycle and don’t know how to get out. It takes significant energy to continue to use drugs and commit crime. When they are finally arrested, many say they are relieved and know they can now rest.

As they go through withdrawal from drugs while in custody and realize they have burnt almost every bridge, they are most likely to want help to quit but don’t know how. They begin to weigh their options, and the amount of jail time faced is a determining factor in their decision-making process.

Two root causes need to be addressed when someone is entering a treatment program. Just addiction treatment for this population will not work. That is not to say that drug treatment courts do not make use of residential treatment in addition to its own programming, but they do not address the criminogenic factors. Drug treatment courts provide not only addiction treatment but also a crucial piece which addresses criminal thinking.

Some of the clients indicate they find out they are equally or more addicted to crime. The crime rush can be just as significant as the drug rush to them, and they are usually high when committing the crime, which increases it.

We have found significant improvements in moral reasoning, behaviour, clean time and graduation rates with this combination. Graduates indicate the criminal thinking program module is a huge factor in effecting change and their success.

The drug treatment court program with the hammer of jail time being faced is the motivator many need, especially early on in the program. There is a correlation between time faced and motivation to try harder.

Drug court is hard. It’s harder than spending time in jail sometimes. Changing your life and starting from scratch is not easy. The release conditions are numerous, but each one is designed to provide the support and structure they crave.

Our probation officer is part of our on-site team at the program centre and works from a perspective that is therapeutic as well as motivating for the client to follow conditions and make needed life changes. Weekly interaction with the judge is a huge motivator. Receiving praise from the judge instills desire to continue to do well.

We also do random urine screening, which keeps them accountable and provides the team with information to develop a treatment plan. The appropriate client for this program is one of high risk and high need. These are the offenders who are addicted and dependent on illicit drugs and are at high risk of criminal recidivism or failure in less intensive rehabilitative dispositions.

Treatment for the offender needs to be at least a year in length. Research indicates the longer someone is in treatment, the better the results. The Regina Drug Treatment Court program takes 12 to 18 months to complete and is usually followed by a six‑month monitoring or probation order. Therefore, the time faced needs to meet or exceed that in order to make it appealing at the outset. Then we hope they buy in and decide they have hope that they can change their lives.

Success in the courtroom is measured less by compliance or by the effective clearing of dockets and more by therapeutic outcomes and the degree to which underlying problems are remediated. In so doing, a problem-solving approach aims to address the revolving door system that recycles repeat offenders through the criminal justice system.

The Chair: Thank you very much, Ms. Birns. We will go on to hear from Mr. Bartleman, Treasurer, Indigenous Bar Association.

Alain Bartleman, Treasurer, Indigenous Bar Association: Honourable senators, good afternoon. I’m appearing virtually today from the city of Toronto on behalf of the Indigenous Bar Association in Canada, or IBA.

The IBA is a national not-for-profit association comprised of Indigenous people, professionals and students within Canada. Our mandate includes the promotion and the advancement of legal and social justice for Indigenous peoples in Canada and the reform of laws and policies affecting Indigenous peoples in this country.

Before moving on with my remarks, I’d like to thank Mr. Duncan Stewart, articling student, for the effort he’s put forward in the preparation of the IBA’s appearance today. Meegwetch, Duncan.

As Indigenous peoples bear the brunt of penal sanctions in a manner that is totally disproportionate to our demographic weight in Canadian society, the IBA has a particular interest in criminal justice reform. Accordingly, we welcome the attempts herald by Bill C-5. However, while it is a welcome first step, Bill C-5 should not be taken as an end to the process of removing mandatory minimum sentences.

The Indigenous Bar Association echoes Call to Action 32 and asks that the government allow sentencing judges, upon providing reasons to do so, to depart from mandatory minimum penalties that remain in the law where imposing one would result in an injustice imposed upon an offender if the government is not willing to remove mandatory minimum penalties in their entirety.

Our position is based on two principles. First, the inherent difficulties [Technical difficulties] within mandatory minimums in light of the sentencing provisions of the Criminal Code and the sentencing policies and practices of judges in this country as already practised. The second principle is the disproportionate impact of mandatory minimum sentences upon Indigenous Canadians in particular.

Regarding the first point, at heart and as described to me by members of the public prosecution team, mandatory minimum sentences express society’s especial distaste for certain types of offences. That raises a number of issues. From a simple perspective of sentencing or judicial efficacy, we need to ask whether mandatory minimums serve the purpose of effectively conveying society’s distaste for particular forms of offences or whether a sentencing judge’s obligations to consider circumstances of offences and the offender during the sentencing provision of that individual’s interactions with the justice system already discharge the expression of societal distaste for particular forms of offences without the need for the imposition of a mandatory minimum sentence and the concomitant risk to the integrity of our judicial system that mandatory minimums impose.

Fundamentally, the IBA does not believe that mandatory minimums add to the goals of sentencing as described in the Criminal Code. The IBA appreciates the need for offender sentencing to meet the goals described in section 718 of the code, which is:

. . . to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society —

— through the particular objectives described in subsections 718(a) through (f).

To those goals, the IBA would add the need for restorative justice that would aim to allow those to take responsibility for the harms they’ve committed and to communicate about and address their needs in the aftermath of a crime. We submit that those goals can be adequately addressed through judicial discretion and the obligations of a judge to consider the factors of section 718 without the further burden of mandatory minimum sentences.

We must also ask whether mandatory minimums in this post‑Nur and post-Lloyd era can serve the purpose of balancing society — of a just and safe society, as called for in the Criminal Code. Citing statistics from the Department of Justice, it would appear as if challenges to mandatory minimums are often quite successful in the amount of 48% of challenges, according to the DOJ, with respect to firearms challenges.

There is a paucity of peer-reviewed evidence finding in support of mandatory minimums. However, as I’ll briefly discuss, there’s a great deal of evidence that mandatory minimums exacerbate social inequalities and contribute to the over-incarceration of Indigenous peoples. Blanket approaches do not work for nuanced problems.

Regarding my second point, the disproportionate burden, as I suspect we are all aware, the over-representation of the Indigenous community within the criminal justice system in general and the over-representation of Indigenous persons within the penal system in particular is a source of national shame. While representing only 4% of our population, Indigenous women make up some 50% of the prison population of this country. In the province of Saskatchewan, some 98% of women in youth correctional facilities are Indigenous.

Mandatory minimum sentences contribute to this crisis by placing individuals, especially vulnerable individuals, into positions where they either feel obliged to plead down to lesser offences in order to avoid the spectre of mandatory minimums or, alternatively, to stare down the prospect of running a gauntlet of section 12-related challenges.

We echo the concerns raised by Senators Pate and Sinclair regarding the situation of Indigenous women in particular who, often responding to backgrounds of abuse, are found guilty of crimes they have committed in order to escape from situations of domestic violence or abuse only to find themselves staring down the prospect of a sentence that may be grossly disproportionate to their circumstances.

We are equally aware of the challenges and the unique public‑order challenges facing Indigenous peoples, especially those who live on reserve and who find themselves in positions of vulnerability by reason of sex, gender expression or illness, whether physical or mental.

With that having been said, mandatory minimum sentences as an expression of societal distaste cannot be used as a tool to attempt to rectify the public-order challenges that our people face. Mandatory minimums, in particular, exacerbate the challenges that our people face while navigating a society that is all too often either indifferent or actively hostile to their interests.

Accordingly, while the IBA welcome the provisions of this bill, we encourage the government to put into effect Call to Action 32 if it is not willing to do away entirely with mandatory minimum sentences. Meegwetch.

The Chair: Thank you very much for your presentations, all three of you.

I have a question for Mr. Spratt. In your presentation, you said that you are 100% in agreement with conditional sentence amendments and perhaps 90% on board with the mandatory minimum amendments, but you are disappointed with the drug amendments.

Can you expand on that? What specifically do you mean by that?

Mr. Spratt: The problem is the apparent right in the legislation itself. The first declaration of principle is that problematic substance use should be addressed primarily as a health and social issue, and yet here we have the Criminal Code trying to deal with it.

The problem is this: Even if we assume that prosecutorial discretion or police discretion is going to be used — and I’m not convinced that it will; we don’t have the evidence that it has been in the past in similar circumstances — having these offences still in the Criminal Code is a harm itself. Someone having interactions with the police, or the spectre of interactions with the police or criminal sanctions, can lead to deadly situations with respect to drug use. Even if charges are ultimately disposed of through diversion after the person gets to court, that court process and having the charge is a harm itself.

About a year ago, I spoke to a young woman named Tanya on my podcast. She is an Ottawa resident. Her brother suffered from addiction issues. He was charged with an offence because of those addiction issues, and he was unable to get into treatment because he had those outstanding charges. It takes a while for those charges to move through the system even when they’re going to be diverted or disposed of otherwise. Because he had those charges, he was unable to get into treatment, and because he was unable to get into treatment, he overdosed and died.

That’s what my client’s experience, and that’s what’s happening in our communities. Nothing in this legislation fixes that.

The Chair: Thank you, Mr. Spratt.

Senator Gold: Thank you to all witnesses for being here.

My question is for Mr. Spratt. You’ve spoken in support of the bill’s expansion of access to conditional sentence orders. They clearly have an obvious benefit in that they prevent someone who doesn’t need to be incarcerated to stay out of jail. That’s a good thing, obviously.

Can you give us a little more of your thoughts about some of the indirect benefits of conditional sentence orders? How do they extend beyond the individual themselves or their broader social benefits?

While I’m on this subject, there’s a second question. I might as well put them both on the table and give you time to answer both. Can you talk about how the courts used CSOs before they were restricted by the previous government? Did judges apply them reasonably and effectively, in your opinion? If Bill C-5 passes, how do you imagine courts will use them? Will it be the same way as they did before they were taken away?

Mr. Spratt: I’m old enough that I was practising before there were restrictions on conditional sentences. Historically, I saw them used appropriately. These are serious issues, and there were always hearings with evidence and lengthy reasons that are the subject and can be appealed if inappropriate.

Without a doubt, like in any situation, there can be circumstances where a conditional sentence is imposed and someone goes on to reoffend. It’s easy to point to those outlier circumstances.

But when we saw the restrictions on conditional sentences, there were a number of things we saw happen. The first is — and I’m sure you’ll hear or have heard data on this — the expansion of the jail population and the over-incarceration of individuals, sometimes for a short period of time — 35 or 45 days — when they may have received a longer conditional sentence.

The other thing I have seen is the perverse inverse of that, where someone could have been, and likely in the past would have been, placed on a conditional sentence with those harsher restrictions, but because jail was inappropriate, they would get a suspended sentence. There would be a lesser punishment in those circumstances.

We have seen that when conditional sentences aren’t available, more of these cases go to trial. It’s harder to resolve cases. It’s harder to come to that middle ground where everybody can achieve their objectives. We’ve seen ballooning court dockets. We’ve seen overflowing courtrooms and double packed courtrooms. It’s harder to get a trial within a speedy time. Unlike a fine wine, evidence and the criminal justice process don’t get better with age.

None of my clients want to see their matters drag on. I have never had one client say delay this as long as you can. I represent complainants in sexual assault matters under sections 278 and 276 of the Criminal Code and they don’t want their matters going on longer.

Conditional sentences will save time and money will increase access to justice, will make sure that those appropriate sentences result in fewer people in jail and, ultimately — overriding all of that — they’ll result in the most appropriate sentence that will increase public safety, rehabilitation and reintegration, which I think is what everyone, no matter what side of the table you’re on, is striving for.

Senator Gold: Thank you.


Senator Boisvenu: Welcome to the witnesses.

My question is for Mr. Bartleman.

Do you have interpretation, Mr. Bartleman?

Mr. Bartleman: No, I don’t have interpretation, but I can answer you in French.

Senator Boisvenu: You talked a lot about violence against women in Indigenous communities. It is a real scourge in Canada, in all communities. Thirty percent more women have been murdered in the last three years. In almost all cases, the episodes of violence began very early in the life of the couple.

The justice system has been very permissive towards abusers. Rather than sentencing them to jail, they are ordered to keep the peace and stay away from victims. In the majority of cases, abusers did not comply and they murdered their spouses or ex‑spouses.

The bill before us will expand conditional sentences. I’m thinking of criminal harassment, sexual assault, breaking and entering, assault, bodily harm. These are all included in the definition of domestic violence.

If judges can send these criminals back home to serve their sentences, doesn’t that send a very negative message to women to not to report their abuser; otherwise the justice system will give their abuser a very minor sentence?

Mr. Bartleman: Exactly. As we assess problems associated with domestic violence and the need to protect the most vulnerable in our society, such as Indigenous women or children, who experience a high rate of violence compared to the rest of our society, we cannot allow the justice system to replace traditional or culturally competent systems of governance.

In other words, reintegrating individuals must be done safely, in a well-established way, so that they can be rehabilitated and reintegrated into society. This is what should be prioritized. These individuals, these accused, these convicts will eventually be released into the community. So their rehabilitation into society, into their community, should be prioritized and be done under the best possible conditions.

Senator Boisvenu: But what do we say to victims who, after their trial, see their abuser immediately reintegrated into the community without the justice system having been tough on them? At the same time, the Supreme Court and courts of appeal say that there should be no tolerance for domestic violence. It is a scourge across Canada.

What do we say to victims when a judge gives a conditional sentence? What message is being sent to them?

Mr. Bartleman: The key message is that sentences must be tailored to the crime and the offender, not to broadly applied minimum sentences that could have a secondary effect, such as radicalizing these individuals. Sentences must be tailored to the crime committed by the offender. It is a judicial exercise, not, dare I say it, a parliamentary exercise, to determine the level of a sentence imposed on an individual convicted of a crime.

Senator Boisvenu: On the issue of minimum sentences, I think it’s also a matter of perception of the justice system.

Mr. Bartleman: Yes.

Senator Boisvenu: Shouldn’t we withdraw the...

The Chair: We will now move on to the second round of questions.

Mr. Bartleman: Thank you, Senator.


Senator Dalphond: Mr. Spratt, concerns have been expressed that by extending access to conditional sentence holders, this bill will result in sexual offenders serving their sentence in the community within the same neighbourhood as their victims and that the message to the victims will be that the system doesn’t care about them. Do you share these concerns? If not, based on your experience, what should we do to address these concerns?

Mr. Spratt: The Goldilocks answer — not too hot, not too cold — is this: I don’t share those concerns. There’s clear direction from the Supreme Court as recently as Friesen that sexual offences should be treated very seriously and will most likely require and demand a custodial punishment. We’re seeing those actually lengthen.

However, there are some cases and I’ve represented some individuals who have severe developmental delays, whose offences are on the lower end of the continuum and who doesn’t pose necessarily the risk to the community and whose sentence otherwise might be short, with a robust treatment and supervision plan. In those rare cases, a conditional sentence could be very appropriate. In most cases, just like minimum penalties, just because a conditional sentence exists doesn’t mean that it will be imposed. Like most of the examples raised today, it wouldn’t be imposed.

Senator Dalphond: My next question is for Ms. Birns of the Regina court. The therapeutic approach that you are sponsoring is based on the fact that the person will plead guilty first and then it goes into that track. The bill provides here for the police officers and even the Crown to send people to some kind of health therapy instead of going through the criminal system. How will that affect your operation and how will your organization be able to adjust to this new reality if the bill comes through?

Ms. Birns: I believe that the bill would open up some options to people who may not have that already. Not being a lawyer, I can’t speak directly to that.

Senator Dalphond: But I understand your organization will be able to adjust and to deal with cases that will come from these types of orders from police officers and the kind of program agreed upon with the person charged.

Ms. Birns: Correct.

Senator Dalphond: Thank you.

Senator Klyne: I have a question for Ms. Birns and for Mr. Bartleman. Ms. Birns, do you think this bill will make it easier for people in the criminal justice system to access the supports they need such as varied treatment services and rehabilitation for their safety specifically and for the public safety generally? If not, what else could the federal government do to position this bill for success in those regards?

Ms. Birns: The Crown actually has criteria that it reviews for people who are eligible for the program, and it would allow for more opportunities for individuals to attend who are currently facing more than whatever the end of the sentence would be, because we have a range. If they’re over the range, their eligibility would not allow them into our court.

I believe treatment is the answer in terms of many of these individuals who need to turn their life around and just do not know how to do that and are stuck in that cycle.

Senator Klyne: Mr. Bartleman, I understand that Bill C-5 is designed at least in part to address the Truth and Reconciliation Commission’s Calls to Action 30 and 32, eliminating Indigenous overrepresentation in custody by 2025 and to allow judges to depart from mandatory minimum sentences with reasons. This bill can also be seen as addressing Call for Justice 5.14 of the National Inquiry into Missing and Murdered Indigenous Women and Girls regarding evaluating the effect of mandatory minimum penalties on the over-incarceration of Indigenous women, girls and persons with diverse sexuality and genders.

That said, my question is this: Does this bill do enough to address the social issues and systemic racism that led to Indigenous people having a disproportionate level of involvement in the criminal justice system in the first place? Is there something else the federal government could do or should be doing to complement this bill and position it for success?

Mr. Bartleman: Thank you for that question, senator. I was tempted to say “no, but,” and then I was going to change my answer to “yes, but.” So instead of providing a short sound bite, I’ll simply answer the question, the bill goes some ways but not far enough to redressing issues of systemic racism within the justice system. We have a crisis of over-incarceration, which can also be translated or looked at as a crisis of overrepresentation of individuals of Indigenous background within the justice system.

Many of those individuals find themselves in contact with the criminal justice system in particular as a result of the legacy of residential schools; of the Indian Act, which remains on the books; and the various injustices and indignities inflicted upon Indigenous peoples by the Indian Act and its buttressing legislation.

However, what this bill does do is take aim at some of the provisions within the criminal justice system that contribute to the overrepresentation of individuals of Indigenous background within the penal system, in particular through mandatory minimums.

I believe other speakers have spoken about the very difficult choice that certain Indigenous accused face when confronted with the decision to plea down and accept custodial sentences in order to avoid potentially higher mandatory minimums for the offences for which they were originally charged, or alternatively, stare down the prospect of lengthy, expensive and uncertain litigation based on section 12 of the Charter.

This bill is not one that is taking aim at the systemic causes of residential schools or the problems with the Indian Act, but it is taking a square aim firmly at this issue that I’ve just described, which is the spectre of mandatory minimums lurking behind certain offences. While it’s a welcome first step, I’m not sure an act to reform the Criminal Code and the CDSA, it would be appropriate to speak of it as taking aim to address the larger systemic issues that are facing Indigenous peoples in this country.

Senator Klyne: Thank you.

Senator Simons: I have two questions, the first for Ms. Birns. I was reminding myself while you were speaking of all the different specialized courts that my province of Alberta has. Edmonton has a Mental Health Court. Calgary has an Indigenous court and a special domestic violence court. Both Edmonton and Calgary have drug courts. But these are all at the provincial level. Since we are also dealing with federal institutions and the federal courts that do the more serious crime assessments, I guess, is there more that the federal government needs to do to take a leadership role in establishing these kinds of alternative diversion courts?

Ms. Birns: The federal Crown works quite closely with our court in terms of referrals, so we have a balance between the provincial and the federal charges that occur, and the referrals come from both places. Working with our courts, the federal people are helping to provide some opportunities to their clients.

Senator Simons: Mr. Spratt and Mr. Bartleman, we have talked a lot about the crisis of over-incarceration and the crisis of overrepresentation of Indigenous and BIPOC people in the criminal justice system. I feel like we haven’t talked about the other crisis that underlies so much of this, and that is the crisis of confidence that people have in the courts. Because I think the whole genesis of all these mandatory minimum sentences was this belief, anchored in reality or not, that somehow the courts were “soft on crime” and we couldn’t trust judges; we had to pen judges in and restrict their capacity to pass judgment.

It strikes me, having listened to Minister Lametti yesterday that it is going to be very difficult to convince most Canadians that this is a good idea, no matter how pragmatic many of us might recognize that it is, as long as there remains this crisis of confidence in the judiciary itself.

I think Mr. Spratt, you have more trial experience than Mr. Bartleman, but what do we do to restore public confidence in our judges so that people have faith that they will apply sentencing accurately and responsibly if you take down the baby gates?

Mr. Spratt: When you look at judges in Canada, Canada has one of the most respected judiciaries around the world. We are a model and a guiding light for other jurisdictions in terms of how the justice system should operate. For too long, criminal justice has been used as an easy political wedge. That’s the genesis of much of the minimum sentences, those passed by the previous Conservative government and those passed by Liberal governments before.

It is easy to punch down toward these populations and, quite frankly, I’ve been very disappointed with some of the commentary from our leaders who misrepresent, who lie about things, because we know. You know the studies. You’ve seen that study after study says minimum sentences don’t deter crime, which is a common sense proposition. When my client is addicted to drugs and is looking to get healthy and to do that they rob a store, or when someone with a mental health issue commits an offence, they’re not thinking down the road about a minimum sentence that could be imposed. They don’t deter crime. In fact, the studies suggest the opposite; they might increase offences in the community. But the public isn’t told that.

The first step needs to be our leaders having an honest conversation. And there can be a disagreement about the underlying principles, but when the public is fed that sort of misinformation time and time again, and when we see it used as a political wedge — you’re soft on crime; we’re hard on crime; our streets are unsafe.

Crime rates go up and down but, overall, our streets have never been safer. Yes, there is a crisis of confidence, but that’s a crisis of confidence created for political convenience. It doesn’t reflect the realities of our courts.

There is maybe not much we can do in the legislation because we don’t want to double down on bad policies just to feed the public a fantasy and alleviate fears that are unfounded. I don’t think there is much you can do in terms of this legislation, but I would urge everyone to communicate at least honestly about some of the underlying primary facts. I think that’s where the problem is.

Senator Simons: Thank you very much. Mr. Bartleman, I don’t know if there is anything you can add to that but if you would like to try.

The Chair: I’m sorry, may we now go to Senator Pate, please.

Senator Pate: Thank you to all our witnesses for appearing here today but also for your ongoing work.

I want to pick up where you just left off, Mr. Spratt. One of the things that you indicated in your presentation is how much work is still going to have to be done to actually repeal those mandatory minimum penalties or strike them down that have not yet been — and I appreciated your history lesson going back to Luxton in terms of murder.

One of the challenges right now is that we’re being discouraged from amending the bill because of public perceptions, and yet I’d like to hear from you and Mr. Bartleman in particular, what will it take after this bill is passed, if it went through without amendments, to then challenge all these other mandatory minimum penalties? What are we talking about in terms of time, effort, resources and also people’s lives?

Mr. Spratt: I’ll be brief so I don’t steal all of Mr. Bartleman’s time this time. But there are still many more mandatory minimum sentences and one of the problems with not repealing them all here is that we have different laws across Canada. Minimum sentences are applicable in B.C. but not in Ontario or in Alberta but not Nova Scotia. So the punishment that similar offenders who commit the similar offence get in different jurisdictions is different and we have a federal law that applies differently. We have different justice across Canada.

We’re looking at days, weeks, years of court time challenging these, the expense and, of course, people’s lives are at stake. All of the downsides of minimum sentences — the perverse incentives, people serving jail time, not being reintegrated — will continue on in one form or the other. This is something that needs to be looked at holistically, and simply waiting for the Supreme Court to strike down a law and then repealing it after a number of years isn’t the answer.

Mr. Bartleman: I echo my friend, Mr. Spratt’s, comments. We are finding ourselves and we have found ourselves in a position where what is intended to be a uniform law is applied in a manner that is disjointed depending on the province or territory in which it is applied, which is — to put it crudely — a bit of an absurdity. We have an opportunity, as we move forward as we hopefully can, to continue with the momentum of repealing a system of sentencing, mandatory minimums, that does not work, that frankly undermines the reputation for fairness of our judiciary, which my friend has correctly pointed out is renowned across the world for the perception of fairness and integrity that it seems to embody, certainly across Indigenous populations. Otherwise put, among many Indigenous populations there is the perception that the Canadian judicial system, whether expressed in its provincial or federal format, is seen to be racist for the disproportionate impact it has upon Indigenous populations.

To answer your question, Senator Pate, with respect to how we can continue to move forward, I would encourage us not to let up the fight and, if at all possible, to heed the clarion call of reason, of efficacy, whether that be judicial or simply based on an appreciation of the social realities that our peoples find themselves in. Meegwetch.

Senator Pate: Just to pick up on one other thing that’s come up just in terms of perception is that this is something that the communities want. I’ve been struck and was contacted by a number of Indigenous leaders following the tragedies and travesties at James Smith Cree Nation. Mr. Bartleman, would you would care to comment on what Indigenous leaders are calling for at this point in response to that situation, in particular.

Mr. Bartleman: Yes. Thank you for that question, senator. I note — as indicated in my opening address — it is very much in keeping with our teachings to emphasize restorative justice and to address root causes that cause people to act in ways that are unacceptable. With respect to the recent outrages that we saw, the stabbings a number of weeks ago, it was heartening to see the leaders of that community, particularly Chief Arcand, not calling for tougher sentencing, nor the imposition of blanket punishments upon those who commit misdeeds, but rather to move forward to attempt to put in place a system of healing for those who would be tempted or otherwise driven to commit similar outrages.

You cannot help a situation, you cannot help people who are hurt by further hurting and abusing them, throwing them into a jail cell or treating them like animals, which is, unfortunately, a reality that too many Indigenous peoples have faced in their lifetime.

The Chair: Thank you very much.

Senator Cotter: Thank you again to the witnesses for their presentations today. I have two questions, both of them for Mr. Spratt. I’m in sympathy with your observation about people’s views of the judges and the court systems although it might be a conversation for another day.

My question is in the context of your observation that all the mandatory minimums ought to be removed, I note that in the Uniform Law Conference working paper on exceptions to mandatory minimums there was a consensus among the working paper members, made up of prosecutors, defence lawyers, academics, et cetera, that murder not be included in that categorization. I take it you would disagree and I wonder if you could speak to your point of disagreement and then buy me a bit of time for a second question.

Mr. Spratt: The first point of disagreement is one of principle. If we trust our judges to impose fair sentences taking into account all the circumstances, that applies for all offences including very serious offences, recognizing that just because judges have wide discretion, doesn’t necessarily mean they’re going to exercise that discretion on the low end.

The harms that exist because of minimum sentences are perhaps more acute in murder cases. I’ve never been in a situation where I’ve had to represent an abused woman who is facing a first- or second-degree murder charge because they have killed their abuser and have a valid self-defence or duress argument and they are induced to pleading guilty to manslaughter to avoid the mandatory minimum sentence. That is probably one of the most heartbreaking and heart-wrenching scenarios. But I have represented a lot of people who are accused of those types of murder charges and are offered lesser sentences, and the inducement is there in that case, as well.

It’s probably and particularly more important in those very serious cases, such as first- and second-degree murder, that there not be a minimum sentence, even though for the vast majority of individuals who do commit those offences in those specific cases they may likely receive a sentence as they would anyway.

Senator Cotter: My second question is in relation to the discussion around the drug amendments and your call for decriminalization. Assuming that doesn’t happen — and I think it is a little bit hopeful in this conversation, to be blunt — we discussed yesterday with justice officials the degree to which police continue to lay charges and then the vast majority of the drug charges are subsequently stayed or withdrawn by prosecutors.

The legislation calls for a very fairly strict expectation of prosecutors but a pretty soft one for police. In your view, would it help if a stricter expectation of police were put in the legislation here?

Mr. Spratt: Yes. I recognize that full decriminalization and what we need to do on drug policy is probably beyond the scope of the amendments on this bill, although I’m no legal expert. So I leave that to you and the clerk and the chair of the committee. For example, things can be toughened up in here. It should be mandatory that police consider these. They should have to document that they have considered them and there should be consequences if they’re not considered, whereas in this bill the opposite is true. There isn’t that sort of oversight, that sort of reporting, that sort of tracking, so we know how often it’s used and there isn’t any consequence. An officer can say, yes, I didn’t consider it and I never will, and this bill is fine with that. So I think that can probably be changed here.

The Chair: Senators, we will probably go five or seven minutes longer. I hope I can count on your indulgence. And witnesses as well, can you stay a little longer? Thank you.


Senator Miville-Dechêne: I have a question for Mr. Bartleman.

This has been discussed a great deal. The over-representation of Indigenous peoples in prison is a serious problem and it remains so despite the Gladue ruling, made 23 years ago.

Do you hope, Mr. Bartleman, that Bill C-5 will strengthen or change the implementation of the Gladue decision’s principles? Or is the resistance deeper than just the issue of minimum sentences? Is there resistance in the justice system that ensures this discrimination will continue?

Mr. Bartleman: I thank you for the question, Senator.

So, the application of subsection 718.2 of the Criminal Code works. Obviously, there are many problems with the way the text of that subsection works. However, I would note that Bill C-5 could further assist and give more discretion to judges to properly carry out their duties under that subsection, the Gladue section of the Criminal Code.

Senator Miville-Dechêne: Thank you.


Senator Batters: I am very happy to see Ms. Birns here from the Regina Drug Treatment Court operating since 2006, so 15 years. That has been a big success story and it is something that I know Saskatchewan is very proud of.

As you mentioned in your opening remarks, you said that going through drug treatment court can be harder than jail for good reason, as this program can sometimes actually get to the real heart of what the offenders’ issues are. Ms. Birns, could you tell us more about what criteria should be used to determine who can benefit from a diversion? I’m also wondering if you can point us to any statistical data on the effectiveness of diversion programs in supporting offenders and decreasing offences.

Ms. Birns: In terms of data, I’m sorry, I would not have that available.

In terms of opening it up to other offenders, our program would benefit those who are within the system and caught in a cycle of offending and looking at the mandatory minimums. If they’re exceeding that amount of the high range, looking at how that might be adjusted so that we can allow people in need to access the program, not just based on a range based on mandatory minimums.

Senator Batters: Thank you.

Mr. Spratt, it’s very nice to see you here in person again. A 2020 study showed that Indigenous offenders were 35% more likely to be convicted of a breach of conditional sentences than White offenders. I’m wondering how this fact would affect the implementation of Bill C-5. Do we know why that’s the case? Can you provide any guidance on that? Also, what are the consequences of a breach of a conditional sentence? If you can explain that for us.

Mr. Spratt: I’ll start with the easy part of the answer. The breach of a conditional sentence is taken very seriously. Normally, in most cases, it will result in incarceration for the balance of the conditional sentence. There is a hearing that can be held and a conditional sentence can be varied, depending on the circumstances. That has some importance because a conditional sentence is usually, almost always, longer than a traditional jail sentence would be. Were you to be sentenced, if the appropriate range was five months for a real jail sentence, you’re probably looking at a 10-month conditional sentence. So a breach of a conditional sentence can actually result in a longer period of incarceration than if you had been sentenced to jail at first instance.

In terms of why there are so many breaches with respect to Indigenous offenders, there are other people who might be better suited to answer that than I, but I can tell you my experience with respect to representing Indigenous accused and accused from other marginalized and racialized communities. Over‑policing is one of the answers. Quite often you find breaches where you look for them. Communities of colour, people who already have vulnerabilities, are more often going to be in contact with the police because that’s where the police are devoting resources, appropriately or not appropriately, in some circumstances. I think there are larger social issues with respect to that. But I think the rate of breach in those communities, or as reported in those communities, is not a reason to turn a back on a conditional sentence.

Senator Batters: Does that concern you, then, that this bill is expanding conditional sentences; yet it can have perhaps a disproportional effect on Indigenous offenders, which is one of the purposes of this bill, to try to help people in that circumstance?

Mr. Spratt: That is a concern. I think that the answer to that is not restricting conditional sentences so that those communities can’t take advantage of the benefits. I agree with you. I think that the answer to that is looking at how these are monitored, where police resources are looked at and how law enforcement sometimes inappropriately deals and focuses on those marginalized communities.

Senator Batters: Thank you.

The Chair: Thank you very much, Mr. Spratt. Thank you very much, Ms. Birns and Mr. Bartleman. You have given us a lot to reflect on and a lot of information, and we thank you very much.

(The committee adjourned.)

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