THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, September 28, 2022
The Standing Committee on Legal and Constitutional Affairs met by videoconference this day at 4:15 p.m. [ET] for the purpose of studying Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.
Senator Pierre-Hugues Boisvenu (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: Good afternoon, everyone. I’m Senator Pierre-Hugues Boisvenu from Quebec. I’m the deputy chair of this committee and I’m filling in for our chair, Senator Jaffer.
Please have a special thought for Senator Jaffer. We know she’s had health problems and she deserves our undivided attention and our energy to help her return to us in good health.
Before we go any further, I will introduce my colleagues: Senator Batters from Saskatchewan; Senator Gold from Quebec; Senator Bellemare from Quebec; Senator Clement from Ontario; Senator Cotter from Saskatchewan; Senator Dalphond from Quebec; Senator Dupuis from Quebec; Senator Miville-Dechêne from Quebec; Senator Pate from Ontario; Senator Simons from Alberta; Senator Tannas from Alberta; Senator White from Ontario.
Without further ado, I will now give the floor to our first witness, Steve Sullivan, Chief Executive Officer of Mothers Against Drunk Driving Canada. With him today by videoconference is legal director Eric Dumschat.
Steve Sullivan, Chief Executive Officer, Mothers Against Drunk Driving Canada: Thank you, Mr. Chair.
[English]
Thank you to the committee members. Mothers Against Drunk Driving, or MADD, Canada’s mission is to stop impaired driving and to support victims of this violent crime. We are the only national anti-impaired driving organization in the country to provide services to victims and survivors of impaired driving.
We appreciate the goal of Bill C-5 is to address systemic racism issues in our criminal justice system. However, our focus is solely on the expansion of conditional sentences.
When conditional sentence provisions were first enacted in 1996, families of those who had lost loved ones were confused that someone who had killed their loved one could receive house arrest. Losing someone in an impaired driving crash is extremely difficult to deal with because it’s something that is totally preventable, and these deaths are not seen as serious as other criminal deaths such as homicide.
In 2007, the federal government enacted Bill C-9, which narrowed the categories of offences for which conditional sentences could be imposed, including impaired driving causing death. It may be true that those limits are too restrictive, but we believe impaired driving causing death is as serious an offence as attempted murder.
People we support suffer from post-traumatic stress disorder, depression and anxiety. Many feel that sentences for impaired driving-related deaths do not reflect the harm that has been caused. For families, the intent and motivation of the offender is not significant to the impact of the crime.
In recent years, courts across Canada have emphasized the need for stricter sentences for impaired driving causing death, emphasizing the importance of deterrence and denunciation as sentencing objectives. Courts recognize the need for a strong message when a death could have been prevented entirely by making the decision not to get behind the wheel while impaired by alcohol or drugs.
Limiting the availability of conditional sentences is essential in denouncing criminal offences that result in death. We are concerned that allowing conditional sentences for an offender convicted of impaired driving causing death sends the message that this is not a serious crime.
The pain and suffering of families and loved ones of those killed by impaired driving cannot be understated and speaks volumes in support of adding impaired driving causing death and its associated refusal offence to the list of offences ineligible in Bill C-5 for a conditional sentence in any circumstance.
Thank you for the opportunity. I’ll turn things over to my colleague Eric Dumschat, our legal director.
Eric Dumschat, Legal Director, Mothers Against Drunk Driving Canada: Thank you, members of the committee, for allowing me to speak to you today.
If the bill is enacted in its current form, it would allow for the return of conditional sentences for any first-time impaired driving offender who met the eligibility criteria, including those convicted of impaired driving causing death or the associated refusal offence. The federal government made major revisions to all of the Criminal Code transportation offences in 2018, and as a result, conditional sentences were allowed for some impaired driving offences if they were tried by summary conviction.
However, impaired driving causing death was different. It was excluded from eligibility for a conditional sentence because it was deemed sufficiently egregious to remain a purely indictable offence and to carry a maximum sentence of life in prison.
That decision reinforced the sentiment in R. v Proulx, a unanimous ruling by the Supreme Court of Canada which held that conditional sentences should not be imposed where the need for denunciation and deterrence is so strong that incarceration is the only way to express society’s condemnation of the conduct or to deter similar acts in the future. MADD Canada believes that impaired driving causing death and its associated refusal offence meet these criteria.
MADD Canada recognizes that it would be uncommon to see a conditional sentence for someone convicted of impaired driving causing death. However, any chance of this happening is too high when a life has been taken by the actions of another.
MADD Canada does not believe a conditional sentence for impaired driving causing death should be an option at all. To do so would undermine the seriousness of the crime and adversely affect many victims and their families.
We understand that the changes contained in Bill C-5 are being made, in part, to address the systemic racism inherent in Canada’s criminal justice system, and we are supportive of that goal. However, the government has determined that some restrictions on conditional sentences are constitutional and that certain offences should remain ineligible for conditional sentences under Bill C-5.
MADD Canada strongly recommends that impaired driving causing death and its associated refusal offence be added to the list of offences ineligible for a conditional sentence in any circumstance as outlined in clause 14 of Bill C-5.
Thank you for your time and for the opportunity to present to you today.
Debra Parkes, Professor and Chair in Feminist Legal Studies, Peter A. Allard School of Law, University of British Columbia, As an Individual: Thank you for inviting me to speak to you today. I am speaking with you from the traditional ancestral and unceded territories of the Coast Salish people, particularly the Musqueam, and I am on the land that is now called New Westminster, which is the home of the Qayqayt First Nation.
That land acknowledgment is very relevant to the subject matter of my comments today, which address issues of the ongoing impact of the colonial legal system and systemic racism experienced by Indigenous people through our criminal justice system.
I’m going to focus my brief comments on what Bill C-5 does and does not do with respect to mandatory minimum sentences. There are many aspects of the law, but I’m going to focus there.
I agree and support the submissions made by various witnesses that repealing mandatory minimum sentences is required in the interests of justice, and the bill — and the legislative summary accompanying it provided by the federal government — acknowledges that.
There are constitutional reasons, there are equity reasons and there are practical reasons for repealing mandatory minimum sentences. However, only 14 out of the 72 criminal offences carrying mandatory minimum penalties are dealt with by Bill C-5. I think an additional seven offences are partially dealt with.
As such, I have no other conclusion then, based on this evidence, that Bill C-5 is a half measure, at best. It is, with respect, unprincipled because the same — or worse — problems that the government are trying to address in Bill C-5 by repealing a handful of mandatory minimum sentences are associated with the other mandatory minimum sentences that are left out of this bill.
I’ll focus my comments mostly on the mandatory life sentence for murder and the long mandatory parole and eligibility periods for murder. Before I do that, I want to pause and say where we look for our comparisons in our research and when we think about Canadian laws and how punitive, non-punitive or consistent with our values they are, we often look to the south — to the U.S. — which is an extreme outlier in its use of incarceration and, I submit to you, not a model with respect to the achievement of public safety goals and constitutional values in its criminal justice system with the mass incarceration there.
We can look to other jurisdictions for comparison. One I would urge the senators to look at is New Zealand. New Zealand in August of this year passed legislation that is the Three Strikes Legislation Repeal Bill. It repealed a bill that had mandatory minimum sentences in I can’t remember if it was 40 or 60 of its offences, and all of the most serious ones, including all violent offences.
It was a particularly important piece of work done by the New Zealand Parliament, again, over the objections and concerns often based on, I would argue, misinformation about the impact and what mandatory minimum sentences can achieve. But they went with the evidence and they initiated that very substantial repeal of mandatory sentences in New Zealand.
Briefly, in my time left, why include mandatory minimum sentence for murder in these reforms? My research is currently focused on the mandatory life sentence for murder and its impact. Currently, 22% of the federal prison population — over 5,000 people — are serving mandatory life sentences for murder.
From 2009 to 2019, Indigenous women made up a staggering 38% of the women sentenced to life for murder. If we’re thinking about the impact of these sentencing laws on the mass incarceration of Indigenous people, we ought to look at all of those laws.
Some of the harms created by mandatory minimums include mandatory minimums authorize and, in fact, require disproportionate and even grossly disproportionate sentences.
We have had an unacceptable and unprincipled patchwork of laws in Canada where mandatory minimum sentences have been declared unconstitutional in some provinces and not in others, and that persists even with Bill C-5. Many of those are not changed by Bill C-5, so we will continue to have that patchwork.
Mandatory sentences — and particularly the mandatory life sentence for murder — create pressures to plead guilty when an individual is innocent and when there is a valid defence. We see the particular impact of this on Indigenous women.
For all of these reasons — and I have more, if there’s time later in discussion — I recommend that Bill C-5 be amended to codify judicial discretion to depart from the minimum sentence provided for in the Criminal Code. Senator Jaffer’s bill that is before the Senate provides a blueprint for doing that.
[Translation]
The Deputy Chair: Thank you very much for your testimony, Ms. Parkes. Thank you to all of our witnesses.
I will now turn the floor over to the sponsor of Bill C-5, Senator Gold. Because we have fewer witnesses today, you will each have five minutes to ask questions and interact with them.
[English]
Senator Gold: Welcome, Mr. Sullivan and Professor Parkes, and thank you for being here.
A question to you, Professor Parkes, from a University of British Columbia law grad of another generation, I fear: We heard from criminal defence attorneys last week that this bill would make a very real difference to their clients by expanding access to conditional sentences and by repealing several mandatory minimums, which represent a large percentage of crimes for which those sentences are being served. One of them, Janani Shanmuganathan, said — and I’ll paraphrase — I have actual clients whose lives would really be changed by this bill. It sounds as if you would disagree with her — perhaps I shouldn’t presume that — but you have called this bill tinkering around the edges. I wonder if you could comment on her point of view as a practising criminal lawyer?
Ms. Parkes: Thank you. Yes, I don’t want to be misunderstood. I absolutely agree that lives could be changed by this bill and that it will make available appropriate, proportionate sentences — as well as conditional sentences, in particular — for some individuals. I don’t want to be heard saying anything other than that.
What I do think is important, though: For one, the evidence doesn’t suggest that it’s only the offences targeted by this bill that affect and contribute to the mass incarceration of Indigenous people and a disproportionate incarceration of Black and other racialized people. The same kinds of pathologies, problems and harms of mandatory sentences apply to the other ones as well. Drug offences and some firearms offences are targeted by this bill. There are many other offences, including the life sentence for murder which, often, we think is not on the table and shouldn’t be on the table.
However, there are many jurisdictions that either don’t have the mandatory life sentence and they have a safety valve in it to allow for judicial discretion — many of the Australian and European jurisdictions — and some don’t even have the life sentence at all. It’s not a foregone conclusion that we should not consider it as part of these reforms.
Senator Gold: Thank you very much.
Mr. Sullivan, we all agree that impaired driving is a very serious offence. I debated at length reforms to the criminal law, which we would hope had a positive impact on that. Indeed, over the last couple decades, the rates of impaired driving have come down significantly — thanks, I’m sure, in no small part to efforts of your organization and extensive public education.
The data I’ve seen from Statistics Canada show that the impaired driving rates began a steep decline in the mid-1980s and levelled off in the 2000s. The section of Bill C-5 to which you spoke — in particular, on conditional sentences — would have us revert more or less to the way the Criminal Code was in 2007.
Do you have information that you could share with us that indicates whether the 2007 restrictions that were introduced on conditional sentences caused a reduction in impaired driving rates or in the sentences that were handed out when there was real, serious harm, as there too often is?
Mr. Sullivan: Thank you, senator. We have seen a steady increase in sentencing for impaired driving causing death — and injury, which obviously has a range of impacts on people — over the last decade. I could look in files we had from over a decade ago, and people were getting conditional sentences or two years. Now the average, depending on what province you’re in, is four to six, maybe five to seven.
We have seen a steady increase in the sentencing for impaired driving causing death. I think that’s in part because of frustration from the courts that the message doesn’t seem to be getting across.
I would agree with you that there have been decreases in alcohol impaired driving causing death. We’re seeing more cases with the presence of drugs. We can’t always say those are impaired; we just see the presence.
I can try to find the numbers and I would be happy to send them to the committee. I would agree with you that we’ve seen a reduction, but we’ve also seen an increase in sentencing from the courts over the last decade or so. The courts have emphasized the deterrence and denunciation principles in the Criminal Code.
Senator Batters: Certainly, I imagine there are substantial other reasons for the reduction in impaired driving cases. Of course, provincial governments have been taking significant measures, including administrative provisions and things like taking people’s cars away and all of those types of things.
My question takes a bit of a different tack, as you might expect. I understand that MADD Canada and your organization’s volunteers worked closely and collaboratively with the previous Conservative government in 2007 in the development of Bill C-9 to ensure that conditional sentences for impaired driving causing death would not be possible under that law. My husband, Dave, was an MP when that bill went through and I remember how proud he was of that particular bill.
Were you consulted by Minister Lametti or the Department of Justice on this legislation that would reverse this crucial exemption that your organization’s volunteers worked so hard for? Has the federal government provided you with any rationale for specifically weakening the sentencing provisions on impaired driving causing death?
Mr. Sullivan: Thank you, senator. I’m aware of a lot of that work. It predates my involvement with MADD Canada, but I know that our volunteers across the country and our chapters worked really hard on making those changes.
We weren’t consulted in the drafting of the bill. We did have a meeting with the then parliamentary secretary to the Minister of Justice and we met with department officials after the first bill was introduced. We expressed our concerns at that point.
I don’t know that we received a specific explanation as to why impaired driving causing death was included. In a more general sense, as has been talked about, overall, the bill is intended to address systemic issues of racism in the justice system.
Our position was that there are still some offences that the government feels it is appropriate not to allow for conditional sentences. We feel that impaired driving is as serious as any of those three. In terms of an explanation as to why impaired driving causing death was included, I can’t say that we received a specific explanation.
Senator Batters: To be clear, you had a meeting with the parliamentary secretary — not the minister — and ministry officials.
Mr. Sullivan: Yes.
Senator Batters: That was after Bill C-22 was already introduced?
Mr. Sullivan: Yes.
Senator Batters: To your understanding, as a result of the meeting, were any changes made from Bill C-22 to this particular bill dealing with impaired driving?
Mr. Sullivan: No changes. We also testified at the House of Commons standing committee and again, no changes.
Senator Batters: Thank you. I appreciate that.
This question can go to either Mr. Sullivan or Mr. Dumschat. You’ve spoken about impaired driving causing death and exclusion for eligibility for a conditional sentence and its compliance with the Supreme Court of Canada decision in R. v. Proulx, which held that — and this is a quote from Mr. Dumschat at the House committee:
. . . conditional sentences should not be imposed when the need for denunciation and deterrence is so strong that incarceration is the only way to express society’s condemnation of the conduct or to deter similar acts in the future.
We have heard from some supporters of the bill who say that stronger penalties don’t deter crime. How would you respond to that in the context of impaired driving?
Mr. Sullivan: Mr. Dumschat may want to jump in. We have rejected calls by some to support mandatory minimums for impaired driving causing death or injury. Our analysis suggests that there isn’t a lot of evidence that the sentence is much of a deterrent for people who make their decision.
You mentioned earlier some of the provincial schemes, which have been very effective in changing people’s behaviour. In some provinces, we’ve seen significant reductions in deaths and injuries. In part, I think what motivates people is often the certainty of a penalty and its swiftness — if it’s right at roadside and they feel there’s a better chance of getting caught.
I don’t know that we would argue there is a lot of evidence that a harsher penalty has a deterrent effect, but we do feel it’s important in terms of denunciation that a message be sent to the public. On behalf of the families we work with, they feel now that sentences aren’t appropriate. That’s their perspective, and people can agree or disagree with that. But they feel that the courts now are not taking seriously enough the impact of the harm done to them and the loss they’re suffering. They look at other types of offences and wonder why that is. From our perspective, those are important considerations as well.
Senator Simons: Mr. Sullivan and Mr. Dumschat, I have to say that in the course of my lifetime, I’m astonished at how much social attitudes towards impaired driving have changed. From the time I was a teenager when it was, frankly, normative until now — as my daughter is a young adult — it’s simply unheard of in her social circle; they just wouldn’t consider it. I think MADD and groups like them deserve a huge part of the credit for the social sanction. The denunciation, which is social as much as criminal, I think has really changed people’s minds.
In the course of my 30-year career as a journalist, I covered a lot of these sorts of cases and stories. There were obvious ones where, frankly, the maximum sentence didn’t seem enough to me — cases where drivers had behaved with heinous and callous disregard. Oftentimes, they were people who had a long history of driving offences. Sometimes they were driving without a licence or without insurance because they’d lost those privileges, and it didn’t stop them from driving. As far as I’m concerned, throw the book at those people. I’d be the first to say so.
But I think we can all imagine other cases where the actions are closer to being an accident, or a series of very unfortunate circumstances, where a prison sentence might be disproportionate. I’m thinking of a hypothetical case that might involve, say, an elderly lady who had an interaction of her medications and alcohol. It’s easy for me to imagine scenarios where a prison sentence would be disproportionate.
I wonder if you don’t see that there’s some wisdom in giving judges the full range to reflect the full range of human experience.
Mr. Sullivan: Thank you, senator. I would agree with you that attitudes certainly have changed a lot over our lifetime. We see that in the schools when we do our programs. We still have a lot of work to do in terms of the impact of drugs. We don’t have the same level of awareness, I think. But you’re right, it has changed.
From our perspective, it’s not as though people are going to jail and we’re throwing away the key if there are no conditional sentences. Judges now have a range of sentences they can impose; there’s no sort of minimum. I saw a case today in the news where someone got an 18-month sentence. So courts have discretion to craft a sentence that they feel is appropriate for impaired driving causing death.
From our perspective, when there were conditional sentences available, they were used quite routinely in cases of impaired driving causing death. That was a concern to a lot of the families we worked with. Our concern is that if it is reduced, we think it would be much less common today than it might have been. When the option is there, I guess our concern is that the courts will look to it more often than not.
I don’t know if my colleague Mr. Dumschat wants to add anything to that.
Mr. Dumschat: We recognize that instances of impaired driving causing death or the refusal where a conditional sentence would be eligible under the — this sort of pass would be quite rare just because of the existing criteria; I believe it has to be two years less a day, and there are some other things.
But from our perspective as a victims’ rights organization, from working with families, especially — mainly, this was before my time — with ones before the ban was put in place back in 2007 — their loved one was killed, and there’s the guy who did it, just walking around because he’s on house arrest. We view these offences as so sufficiently egregious. This is an offence that, during the hybridization event that took place, was deemed to be indictable only, and it carries a maximum sentence of life in prison.
The government has already identified other offences that it would be constitutional to exclude from conditional sentences, and we just think impaired driving causing death and its associated refusal offence should be added to the list.
Senator Dalphond: Thank you to the witnesses for taking the time to appear before us in person or virtually.
My question is for Mr. Sullivan. Do you have any kind of data collected by your organization about the public perception or public opinion around impaired driving offences and the eligibility of conditional sentences? Is that a question that was surveyed and asked of people?
Mr. Sullivan: Thank you, senator, for the question. Recently, no. I would have to go back to when sentences were available. We might have done something, but not any time recently.
Senator Dalphond: If I understand what you said in your testimony, I don’t think that people who are driving impaired would know about eligible conditional sentencing. It’s the media’s reporting about somebody who gets a conditional sentence further to a serious accident where somebody was killed that will say, “Oh, you can drive being impaired and you will not go to jail.” So that’s what you fear the most, I think?
Mr. Sullivan: Our largest fear is what the impact on a family would be — those who lost a loved one.
We can have a long discussion about how informed the public is about the criminal justice system.
If there is a case, it certainly will be a headline case that such a person did this and got a conditional sentence. I’m not sure that’s an effective way to communicate how our system works to people, but that tends to be how most of us get our knowledge.
Senator Dalphond: But this is an assumption, to some extent, because we don’t have data that supports one view or the contrary view.
Mr. Sullivan: Yes, I can’t sit here today and tell you how the public would feel. I can tell you about the families we work with, which is by no means every family in the country. I’m confident in my knowledge there, but I couldn’t tell you how the public would feel.
Senator Pate: I have a question for Professor Parkes and Mr. Sullivan, if there is time.
Professor Parkes, one of the things you commented on previously — I believe before the Status of Women Committee — was the impact of mandatory minimum sentencing on the undermining of section 718.2(e) in terms of sentencing principles. Given what you raised about the disproportionate impact of the mandatory minimum penalty for murder on Indigenous women, can you elaborate on that and tell us what your research has shown other jurisdictions are doing in this regard when they have been providing the mechanism to move away from a mandatory minimum penalty or provide a structured way for judges to express this and apply structured discretion?
Second, of those mandatory minimum penalties that are repealed, I’ve heard from many lawyers and criminologists that, in most of those cases, people are also charged with other offences for which there are also jail or mandatory minimum penalties. I’m curious if you have any comment on that as well. Thank you.
Ms. Parkes: Thank you, senator, for those questions.
The point about section 718.2(e) is an important one. It’s acknowledged by the government — as I was reading the legislative summary and the materials accompanying this bill — that part of the impetus is to make the particular sentences where the mandatory is being repealed by this bill able to have Gladue considerations or section 718.2 considerations — the social context, the impact of systemic racism and colonization on both Indigenous and, as we’re also seeing in other cases such as Morris and Anderson from Nova Scotia, around Black and other racialized people who are convicted of those offences.
Without making Gladue meaningfully available — and those section 718.2(e) alternatives and an appropriate consideration of systemic factors — to judges considering all offences, I think that actually raises constitutional issues about equal protection of the law, the recognition of the need for those proactive measures in sentencing, safety valves available in sentencing to have a proportionate sentence and to allow judges to do their job in that case.
In terms of what other jurisdictions are doing, it’s actually quite common to have some kind of safety valve or residual judicial discretion, particularly even in respect of those jurisdictions where there are life sentences — including for serious offences such as murder. The research I’ve been doing into the impact of life sentences shows that Indigenous women are very likely to be convicted and sentenced to life; it’s more likely than non-Indigenous women when they’re charged with murder. There is evidence that Indigenous people are more likely to plead guilty and the pressures that the mandatory sentence put on them to plead guilty when they have a valid defence or are innocent.
The second question about the offences for which the mandatory is being repealed and the person is often charged with another offence as well is absolutely true. I don’t have great research statistics on this right now, but the evidence is quite widespread in terms of the perspective of both Crown and defence lawyers that most people in most situations are charged with a number of offences. Arguably, in some jurisdictions, there is significant overcharging, and that creates pressure to plead guilty.
If they are “in the mix,” as there undoubtedly will be — if we have this patchwork repeal of only a few mandatory minimum sentences — that pressure to plead guilty because of the mandatory sentence that’s in the mix of the number of charged offences for a single event often will create, again, those pressures that lead to innocent people pleading guilty. That contributes to the mass incarceration of Indigenous people.
My submissions to you are just about taking a principled approach to this and going where the evidence leads. That’s why I pointed to the New Zealand example, where there is very significant evidence of the impact of that law.
[Translation]
The Deputy Chair: I’d like to remind our witnesses that the shorter your answers are, the more senators will be able to ask questions. It can be frustrating to get only one question in five minutes. I would ask that you shorten your answers to foster a better exchange.
[English]
Senator Cotter: Thank you to the witnesses who are here today. It’s much appreciated as we study this bill.
My question is for Professor Parkes. It’s nice to see you again, Professor Parkes. I’d like to ask a question around principle but from a different perspective, and I’d welcome your viewpoints.
One of the arguments that has not been explored very much is the way in which mandatory minimums — and my focus is on mandatory minimums — invite circumstances that require prosecutors and sometimes defence counsel to sometimes twist themselves into an ethical pretzel, if I can call it that: a prosecutor, troubled by a disproportionate punishment if a charge is related to a mandatory minimum, has to contemplate whether he or she could construct a different, lesser charge that would be more just and appropriate; defence counsel, doing their very best to avoid the risk of a client being convicted of an offence that has a mandatory minimum, being willing to agree to a guilty plea to some other offence for their client that is not quite the set of circumstances that presents itself. This seems to me a troubling contribution to the criminal law in Canada for honourable prosecutors and honourable defence counsel. Are you in a position to comment on that?
Ms. Parkes: Thank you, senator. The short answer is that I think it is a problem. It’s well-documented in the literature that mandatory penalties distort many aspects and principles of the criminal legal system — most notably, the principle of proportionality — and require disproportionate sentences in some cases — not all, but in some.
Then there is the difficult position that both Crown and defence lawyers are put in, especially in jurisdictions where police lay the charges. The Crown can always stay or withdraw some charges, but the reality is that because the mandatory minimums set a floor that one cannot depart from and that would lead to a disproportionate sentence, I think ethical prosecutors then will want to substitute a different sentence and not be part of perpetuating a disproportionate sentence.
It is a problem, and it’s all part of the reason that the evidence has stacked up to show that these sentences are not consistent with many of our principles, and that, therefore, we ought to have a principled response to that.
Senator Cotter: Thank you.
Senator Clement: Ethical pretzel — interesting. I want to continue in that direction or build on the conversation between Senator Dalphond and Mr. Sullivan around public perception.
It feels as though there’s a real disconnect between what the data are saying and what the public perceives around sentencing and their own safety, so you rely on the anecdotal because you’re a layperson; you’re a resident of a city. It creates a political climate where the issue is how do we talk about being consistent and relying on the data.
Professor Parkes, what in your research could speak to that difficult political reality? How do we talk to people and to politicians about the importance of being consistent? And by “consistent,” I mean removing all mandatory minimums and dealing with the patchwork that has been created because of it.
Ms. Parkes: Thank you, senator. Another really great question. I just lost my train of thought. Remind me of the question again.
Senator Clement: It is about the disconnect between public perception and then also the data that says what is actually going on with these mandatory minimums.
Ms. Parkes: Yes, thank you. I was going with the end of your comments.
The reality is that public perception and public opinion about sentencing and the criminal legal system is more complex than we often think.
The current federal government did a public opinion survey early in its mandate around 2016-17, if I remember correctly, where it surveyed the public on mandatory minimum sentences and gave them vignettes, a little bit of information about how those sentences operate. The results of those surveys showed that Canadians are quite thoughtful and open to not having mandatory minimum sentences when they actually have a bit of information.
There was also an important study done a number of years ago by Julian Roberts, a Canadian who is at Oxford University now. Again, when people have even a basic, fair and balanced description of the facts in a particular case and the sentencing principles, they will often be not looking for a long sentence. Canadians are quite reasonable when it comes to these issues. I think we often assume there is going to be more of a backlash than there will be.
Having said that, there may well be. But we also need to go to where the evidence requires us to go, and to have policy that is not evidence-based is a problem. Going where the evidence shows you sometimes requires a better explanation of that. I think the media, our own communications and the work that we do in the community can go some distance toward that.
[Translation]
The Deputy Chair: I have a question for Ms. Parkes. If we agree that, in some circumstances, minimum sentences can lead to sentences that are disproportionate to the crime committed, on the other hand, could we also say that conditional sentences can appear disproportionate to victims of the crime committed?
[English]
Ms. Parkes: Well, yes, that probably is the case. This ties in a bit to the previous question about what our perceptions are. I would never want to speak for people who have been victimized and how they would perceive a particular sentence. But what we do know is that the criminal justice system and the sentencing principles are built on core principles around what is supposed to work in sentencing and what we expect works as advertised.
We know that, for example, having a prison sentence over a conditional sentence might be disproportionate in some cases. I think it was Senator Simons who talked about an example of that.
Another example I can think of with respect to conditional sentences and impaired driving, including causing death, is along the lines where a woman is being violently attacked in her own home, is impaired and gets in the car to drive. Our laws of necessity and duress do not often protect her in those situations.
[Translation]
The Deputy Chair: I must remind you to keep your answers as brief as possible.
We will now begin the second round of questions.
[English]
Senator Batters: First of all, I wanted a quick answer if Mr. Dumschat had something to add to his colleague Mr. Sullivan’s answer to my question about hearing from some proponents of the bill that stronger penalties don’t deter crime. In light of the Supreme Court decision in the R. v. Proulx statement you were indicating before, how would you respond to that in the context of impaired driving?
Mr. Dumschat: Thank you. In deterrence theory, there are three pillars. The first is the severity, the second is the swiftness and the third is the certainty.
Severity is the least important in deterring someone, which is why, as you mentioned, a number of provinces have introduced quite extensive administrative systems. As Mr. Sullivan noted, they are swift and they’re certain.
I can’t really say that making a sentence more severe is going to have a huge deterring impact on crime. We’re focusing on the impacts on the victims and families. These are people who have lost their brother or sister, children, parents, friends, aunts and uncles. In our mind, it’s a bridge too far for the offender. Again, we recognize that these are going to be rare cases because the average sentence for impaired driving causing death I think is in the four- to six-year range, and to even be eligible for a conditional sentence, I think it has to be two years less a day. So these are going to be rare.
However, we are of the mindset that a life has been taken. It’s a serious offence, it’s a purely indictable offence and it’s one that has a maximum sentence of life in prison. We believe that this is the type of offence that should be added to the government’s list of offences that should be ineligible for a conditional sentence in any regard.
Senator Batters: Thank you.
[Translation]
Senator Bellemare: My question is for Professor Parkes. You mentioned the unreasonable representation of certain minorities in our prison system. Do you feel that this bill could address some aspects of drug possession and diversion practices that it currently doesn’t address, or would you say that those aspects don’t really explain this overrepresentation?
[English]
Ms. Parkes: The question is about drug possession, those offences and whether those explain the fact that diversion is not available and that they are criminal offences, which explains substantially the over-representation of Indigenous people and other marginalized groups in the prison system.
Certainly, that’s part of it, but many offences are not fundamentally about drug possession or drug charges. Some of the offences that are not part of the repeal of mandatory minimum sentences do involve offences of violence, and yes, intoxication can be part of that. But what we know from the research is that systemic discrimination at various levels — in policing, in prosecution and in our society more broadly — contribute to the surveillance, the policing, the prosecution and conviction of those groups.
I’m not sure if I’m understanding the question correctly.
Senator Bellemare: No, my question was a bit different. I was wondering if there are some issues in our laws in the matter of drugs that would explain a certain over-representation of certain people. In other words, are there some parts of the law that are not proportional to the offence with respect to drugs and that are not here in this bill that could be there? That was my question.
Ms. Parkes: So you’re asking about whether there should be more availability of diversion and other measures in relation to drug offences. That’s not something I prepared specifically to speak to today, but yes, I suspect there is. I would leave that more to other experts in that area, I’m sorry.
Senator Bellemare: Thank you.
[Translation]
Senator Dupuis: Thank you to our witnesses. My first question is for Mr. Sullivan or his colleague. You both emphasized the huge loss for families and the damage that continues as a result of that loss. In your opinion, how could those families be compensated?
I am trying to reconcile what you’re saying, which is that when there were minimum sentences, the sentences were generally shorter. Now we’re seeing a pattern in the other direction, and sentences are much longer. If sentences are longer, based on what you’re saying, it follows that the courts are attaching great importance to the seriousness of the crime. What would make up for that loss?
[English]
Mr. Sullivan: Thank you, senator. It is a good question.
Sometimes we look to the criminal justice system too much to compensate for people’s injuries, trauma or loss in this case, so I wouldn’t want to say that there’s any sentence that could compensate a family who lost their child, a wife who lost her husband or a husband who lost his wife. What we want to do with the criminal justice system is not cause any more harm. For some families, the imposition of a conditional sentence when they have lost a loved one would be very offensive and very painful for them.
Having said that, I wouldn’t suggest that a different sentence would somehow compensate or make up for that loss. I don’t think that’s possible.
[Translation]
Senator Dupuis: I have a follow-up question. Has your organization considered the possibility that the families who have lost a loved one as a result of this crime should be otherwise represented in the justice system, to make representations and then perhaps also to obtain compensation that, while it certainly will not replace the life of the person they lost, might do a better job making up for that loss?
[English]
Mr. Sullivan: All provinces and territories have different insurance systems, so when someone is killed through an impaired driving crash, depending on where you are, in some provinces, you can file civil suits, and in some, you can’t. So there is some monetary value that families can receive through insurance, like any sort of motor vehicle crash.
[Translation]
Senator Dupuis: Thank you. Professor Parkes, forensic psychiatry has been developing for about 50 years. To your knowledge, are there any data or studies on the impact of mandatory minimum sentences, either about risk assessment, when the risk posed by a defendant must be assessed, for example, or in terms of opportunity for rehabilitation? To your knowledge, do we have any existing data or research on that?
[English]
Ms. Parkes: Thank you, senator.
Briefly, there is about 50 years of criminological literature and studies trying to actually make the case that sentencing severity — so having a mandatory sentence or a higher sentence as the minimum — does deter behaviour and changes people’s decisions to commit crime. However, the overwhelming body of that literature shows that is not actually how people make their decisions and that it doesn’t actually work that way. Professor Tony Doob — I don’t know if he’s been a witness here — but he and Cheryl Webster wrote a paper a few years ago called Searching for Sasquatch: Deterrence of Crime Through Sentence Severity, which said that the research was searching for something that doesn’t exist. We have to accept that deterrence doesn’t actually operate by sentencing severity like that to change people’s behaviour.
In terms of what does work, if that’s what you’re asking, the research shows that addressing having much more opportunity for people to be in the community and actually addressing the needs they have that contributed to their offending — to their particular behaviour and the harm they committed. That’s why the move to open up conditional sentences more and to have people in their communities, while under very serious conditions, is an evidence-based response based on what the research shows.
Senator Gold: When the Minister of Justice was here, he was quite candid about what he took into account in fashioning the law the way it was. For some today, it goes too far; for some, it doesn’t go far enough. The minister said that we need to take into account the public acceptability of these reforms. They’re major reforms. Even those who think it doesn’t go far enough acknowledge that — perhaps with your exception, Mr. Sullivan, with respect.
Nonetheless, is it not appropriate, and indeed principled, for a legislator — and we’re legislators — to take into account the state of public opinion and public acceptance for the reasons that the minister suggested, namely, that when you’re introducing significant law reform, you want it to stick and you want it to be acceptable to the public, who then can — I don’t want to elaborate. I want time for your answers. But do you believe it’s appropriate to take into account the public acceptability of the measures, whether you think they’re going too far or not far enough? Brief responses would be appreciated by the chair.
Mr. Sullivan: I think legislators take a lot into consideration when they do that. Obviously, it’s a public criminal justice system, and for it to work, the public needs to believe in it and have faith in it. I can’t speak to the broader reform — this bill is a lot bigger than what we have spoken to — and I don’t have any evidence.
I would think that there are parts of this bill for which the public might not be as accepting as other parts of the bill. I would hazard a guess that the impaired driving provisions are part of those.
[Translation]
Senator Gold: Can I please get a brief response from the other witness, Professor Parkes?
The Deputy Chair: There are only 10 seconds left. I don’t think she will be able to provide you with a good answer in 10 seconds.
[English]
Senator Pate: A follow-up to Senator Gold. Professor Parkes, perhaps you could comment on deterrence, what the public says and what the public acceptance is of alternative sentencing.
When Michael Spratt was here, he spoke about the Luxton decision of the Supreme Court of Canada — the last time the life sentence was considered. Perhaps you could outline with a bit more specificity what happened there.
Mr. Sullivan, I know that in 2015 you talked about not supporting mandatory minimums, and you’ve said that again today. But you did have some very good recommendations about what car manufacturers could do. If you have time, I’d like you to comment on that, please.
Ms. Parkes: Briefly, Luxton is the leading case on the constitutionality of the mandatory life sentence for first-degree murder, which requires a mandatory life sentence and a mandatory non-parole period of 25 years. The important thing to understand — and the reason I think life sentences, the mandatory nature of the life sentences and the long parole ineligibility period is constitutionally vulnerable — is that this decision was made at the time when we had the faint hope clause as part of the murder sentencing regime, as well as different parole provisions and a different context and analysis, frankly, of section 12 of the Charter.
In terms of the changes that have been made, our research shows that life sentences are ratcheting up vis-à-vis the parole ineligibility periods. They are now constitutionally vulnerable to a new challenge, particularly after the more recent Bissonnette decision from the Supreme Court of Canada.
Mr. Sullivan: One sentence, senator. Technology is being developed that will virtually eliminate alcohol-impaired driving in our lifetime. We would like to see the federal government put that on the agenda in terms of imposing that on car manufacturers in the future.
[Translation]
The Deputy Chair: I want to thank our witnesses very much. They delivered a very good message.
We’d now like to welcome our second panel of witnesses: by videoconference from the London Abused Women’s Centre, Executive Director Jennifer Dunn, from the Quebec Bar Association, Nicolas Le Grand Alary, Lawyer, Secretariat of the Order and Legal Affairs, and Michel Marchand, also by videoconference.
I turn the floor over to you. You each have five minutes to make your presentation. Then the senators will ask you questions. Let’s start with Ms. Dunn, please.
[English]
Jennifer Dunn, Executive Director, London Abused Women’s Centre: Thank you very much, deputy chair, and thank you to the committee for inviting me here today. My name is Jennifer Dunn, and I’m the Executive Director of the London Abused Women’s Centre, or LAWC, here in London, Ontario.
LAWC is a feminist organization that supports and advocates for personal, social and systemic change directed at ending male violence against women and girls. LAWC is a non-residential agency that provides women and girls over the age of 12 who have been abused, assaulted, harassed, exploited, trafficked or have experienced non-state torture with immediate access to long-term, trauma-informed, women’s centred counselling, advocacy and support.
Earlier this year, I appeared before the House of Commons about Bill C-5. I am happy to send any of you my speaking notes from that appearance if that might be of help.
This topic is a difficult one because, as a front-line service agency supporting victims and survivors of abuse, assault, exploitation and trafficking, it is difficult to see these issues either one way or the other. For example, fully supporting Bill C-5 or not supporting Bill C-5.
When I was invited to appear before you today, I decided to intentionally include the voices of the women that we serve. While we do feel that Bill C-5 might be a good first step to the reintroduction of discretion in sentencing, we feel broadening the availability of conditional sentences is of some concern, especially when there are specific concerns around public safety.
With regard to discretion in sentencing, while we need a first step, we question if now is the time. A woman we served said:
This bill seems like a top-down approach. We have a system that operates on crisis rather than prevention. We are not ready for the discretion to be in the hands of trial judges. This will open up the floodgates.
Last week, Senator Simons asked — and I’m paraphrasing here — whether there are strategies for judicial education that might give more public confidence that judges, if they were given the liberty to have this discretion, would use it appropriately? Not all judges have done a good job with the freedom that they already have. We see this through the women that we serve.
It is already hard enough for a woman to come forward, and when she does, it takes years to get to the point of a conviction, if there ends up being one at all. This makes women feel as if the justice system isn’t taking them seriously. Just today, I was told by a woman we serve that if we have less protection in sentencing, we are less likely to report offences and this would be a real setback for us.
With regards to conditional sentences for some offences such as criminal harassment, sexual assault, kidnapping, trafficking in persons, et cetera in Bill C-5, many women who are victims or survivors will be stuck in the community with the offender, which places them at such high risk.
A conditional sentence does nothing to stop an offender from committing another violent act. Women need the courts to see this. Yes, there are strict conditions imposed when it comes to a conditional sentence, but that does not mean that they will be followed and a woman’s life could be at risk.
Conditional sentences for some offences can undermine the seriousness of the crimes. Women report to us that they believe this makes them feel as if they must watch their backs in the community when conditional sentences are imposed. We need to remember that sometimes victims and offenders are from the same communities as each other.
At our centre, there was a situation with a woman where the perpetrator was ordered to stay off her property, among many other conditions, of course. The perpetrator decided, though, to bring a lawn chair to a neighbouring yard and sit in that yard, facing her house and there was nothing that she could do about it.
One woman said to us that it seems as if we are focused on the men that have created the problem and are not listening to the women who are on the other side as victims.
I was happy to hear on September 21 that the gender-based analysis report for this bill will be presented to this committee. I would recommend this committee pay close attention to that.
I said in the House of Commons, and I’ll say it again, we need to view this bill through the lens of male violence against women. There needs to be a focus on women, specifically marginalized women, how they will be impacted by this bill and not get the justice they deserve.
At the end of the day, you can’t just talk about race. You must talk about sex as well. The impacts are different on women than they are on men. Women who are survivors of sexual exploitation and trafficking face a lifetime sentence.
We have experienced situations at the London Abused Women’s Centre where, even though there are conditions in place for the perpetrator, women have, for example, received a text message while sitting in our office for an appointment from the perpetrator, who was just outside our doors because they noticed their car in our parking lot.
Women are not safe. We need systemic change to protect our women. Women deserve to live free from violence. The courts need to see that women are easily placed at more risk. Thank you.
[Translation]
Nicolas Le Grand Alary, Lawyer, Secretariat of the Order and Legal Affairs, Quebec Bar Association: Good afternoon, Mr. Deputy Chair and honourable senators. My name is Nicolas Le Grand Alary, and I’m a lawyer with the Quebec Bar Association’s Secretariat of the Order and Legal Affairs. I have with me Michel Marchand, a defence lawyer and member of our criminal law panel. We thank you for inviting the Quebec Bar Association to testify on Bill C-5.
To start with, we know that the bill provides for the repeal of several mandatory minimum sentences of imprisonment and is intended to be an effort to address the overrepresentation of Indigenous communities, Black Canadians and other marginalized groups in correctional facilities.
The Quebec Bar Association welcomes any legislative initiative to strengthen the independence of the courts, promote judicial discretion and, ultimately, give full effect to the principle of proportionality of sentences provided for in the Criminal Code, which is considered a principle of fundamental justice within the meaning of section 7 of the Canadian Charter of Rights and Freedoms.
However, the Quebec Bar Association wishes to reiterate its opposition to mandatory minimum sentences, in particular prison sentences, except for the most serious offences, such as murder.
Mandatory minimum sentences remove the flexibility needed for front-line judicial actors like Crown attorneys, defence lawyers and trial judges to properly apply the principle of proportionality of sentences.
In addition, these measures are counterproductive to the justice system, as there is a real risk that mandatory minimum sentences will lead to imposing inappropriate, excessive and unreasonable sentences.
After all, a mandatory minimum sentence offence can be committed in many different ways, under many different circumstances, and by a wide variety of people.
The sentence therefore proves to be constitutionally vulnerable, because it will inevitably apply in situations where the mandatory minimum will amount to cruel and unusual punishment within the meaning of the Canadian Charter.
The Quebec Bar Association is therefore disappointed that the bill does not provide for broad application measures that would allow the court to fully exercise its judicial discretion at sentencing.
The bill would have been a good opportunity to once and for all remove this type of sentence, which does not promote effective and efficient administration of the criminal justice system.
We welcome the introduction of Bill S-213 in this session of Parliament, which proposes such a measure.
This measure has been widely adopted abroad, and this solution strikes a compromise between Parliament’s right to determine the appropriate sentencing range for an offence and every defendant’s constitutional right to protection from cruel and unusual punishment.
Furthermore, defendants would no longer have to individually bear the burden of a constitutional challenge, sometimes all the way to the Supreme Court.
Judges should be trusted to apply the law fairly and equitably and in accordance with the purposes and principles set out in the Criminal Code, ensuring that sentences are proportionate to the seriousness of the crime and the offender’s degree of responsibility.
In other words, the most appropriate sentence is generally one that is assessed on a case-by-case basis by the court.
Having said that, we also urge the legislator to consider completely reforming the Criminal Code, which we believe is more desirable than piecemeal reform. This would reduce inconsistencies and promote uniformity of rules, thereby increasing public confidence in the judicial system.
In closing, the Quebec Bar Association applauds the thinking behind this bill, which aims to promote judicial discretion in sentencing and to counter systemic racism in Canada’s criminal justice system by repealing certain mandatory minimum sentences of imprisonment.
That covers the main issues that the Quebec Bar Association wanted to discuss with you. We hope our presentation has contributed to your thought process and we’re now available to answer your questions.
Senator Gold: I’d like to welcome the witnesses to our committee.
In your presentation, I noted that you support the objectives of the bill, but you mentioned that the Quebec Bar Association feels it would be a good idea to maintain mandatory minimum sentences for murder. I would love to hear from you on that and, at the same time, I understand that you’re also recommending changes that go beyond this bill.
To clarify your position, if you had to choose between the status quo, the removal of minimum sentences and the expanded conditional sentence regime that the bill proposes, which would you prefer? Why keep the minimum sentences for the crime of murder? Is it on principle? Second, if you had to choose between the status quo and the changes proposed in the bill, which would you prefer?
Michel Marchand, Lawyer, Quebec Bar Association: Thank you for the question.
Murder is one of the most serious offences under the Criminal Code. Genocide is even more serious, but in terms of day-to-day offences, murder is the most serious one.
As the Supreme Court has said, particularly in the Vaillancourt decision, murder is an extremely stigmatizing crime. After the person dies, if it is premeditated murder and not manslaughter, there is a significant mens rea attached to it and intent must be proven. In determining whether this crime merits a minimum sentence, one must consider the fact that it’s irreversible and that the person is gone. In that respect, I believe that the bar’s position is the right one. It’s also consistent with the Criminal Code and the fundamentals of Canadian justice.
If I understood your second question correctly, the status quo does not mean the law as it is in the bill, but rather what we currently have.
The Quebec Bar Association believes that minimum prison sentences had to be removed to leave discretion to judges. Judges are independent. They are appointed by governments. Not just anyone is appointed a judge. We have Crown attorneys and defence lawyers who are appointed. They have to have some legal experience to be appointed judges. They are highly respected by the public.
In my opinion, they are in a position to impose appropriate sentences on offenders. Just because minimum sentences are being removed, it doesn’t mean that judges won’t impose stronger sentences than the minimum. The Supreme Court’s Nur decision on minimum sentences is one example. In that case, the Supreme Court overturned the minimum sentences, but the guilty parties received longer sentences than the minimum. As we can see, the judicial system worked well. The appellate courts are there to check the whole process.
I believe that the status quo is not sustainable. Conditional sentences are almost never applied anymore. There are so many exceptions in the law that it’s becoming impossible to manage. They are rarely imposed, unlike when they were first introduced. The purpose of the sentences was to relieve congestion in the system but at the same time be punitive. It was a good system. Subsequent amendments have made it too restrictive. I don’t know if that answers your questions, but I hope it has.
Senator Gold: Thank you very much.
Mr. Marchand: Thank you.
[English]
Senator Batters: My questions are for Jennifer Dunn from the London Abused Women’s Centre. I want to point out that you’re continuing in the fine tradition of Megan Walker, who was with your organization for many years and testified at this committee many times in fighting for these vulnerable women that really need your help. Thank you for that.
First, as you noted, the bill expands conditional sentence eligibility to sexual assault offences. From your experience in supporting victims of sexual assault, can you tell us what the criminal justice process is like for victims? Also from your perspective, what impact could allowing an offender to serve his or her sentence at home in their community have on their victim?
Ms. Dunn: Thank you for the questions. For women who want to report sexual assault, for example, it takes a long time to get to that point in the first place. Having to live through that is extremely traumatizing. Then having to explain that to somebody else re-traumatizes you. The process from reporting until you end up with your first court date, or until it even gets resolved, can be a lengthy process. Oftentimes, the woman is left to testify as well which, again, is re-traumatizing for that woman.
Women already tell us they feel powerless when it comes to that specific situation — sexual assault, for example. Lately, here in London, we have been in the news a few times for this exact situation.
Just over a year ago, there was a big issue around sexual assault with a university here and then, of course, the Hockey Canada situation with sexual assault here. You have women on the other side of this who have to live with what has happened to them and have to look over their shoulder in the community. That’s a lifetime sentence.
Women have a hard time reporting because they feel like they will not be believed. Part of the work that we do is to show women that they are not alone and that they will be believed. We can provide a safe place for a woman to report a sexual assault and that kind of thing. The police can come here and we work very well together to get that kind of work done, but there are severe consequences for women when they do that, especially if then there is no conviction.
When I was speaking, I gave one example. It wasn’t specific to sexual assault, but it was specific to trafficking. We had a woman who was in here for an appointment time and her perpetrator was literally in our parking lot sending her a text message, letting her know that he knew where she was. She could not even come to access service and feel as safe as she needed to.
Did that person serve jail time? Yes, that person served jail time, but nothing seemed to change in that specific situation. I don’t know if I answered all of your question there, senator.
Senator Batters: No, you did. Thanks very much for bringing up the Hockey Canada situation again. We sometimes forget about that. That did happen several years ago, but it’s just a massive issue in the news.
Sexual assault is estimated to probably be the most under-reported crime in our country. You’ve already talked about this somewhat, especially when you were also giving a quote from a victim in your opening statement where you said, “If we have less protection in sentencing, we are less likely to report.” That may have been with respect to domestic violence, but I’m assuming that would be the same sort of thing for sexual assault.
Can you tell us a bit more about whether you foresee the new conditional sentence eligibility having an impact on the likelihood of victims coming forward?
Ms. Dunn: What we have heard, and what women have told us, is pretty much exactly what that quote I put in there means: If they already know that there’s going to be less protection for them, it’s going to be more difficult for them to even report the offence in the first place.
At the end of the day, that is ultimately what is going to happen. For example, let’s say a woman has experienced sexual assault. They might decide to do nothing in regards to the criminal justice system. They might decide not to report. I believe that women will have a harder time. They will be relying on community resources more and then there will be no justice for them.
Senator Batters: Thank you.
[Translation]
Senator Dalphond: I’d like to thank the witnesses for being available today, and I especially appreciate the key participation of the Quebec Bar Association.
I would like to continue in the same vein as Senator Gold’s questions. Your position is that you oppose minimum sentences except for the most serious crimes. How do you define what the “most serious crimes” are?
We can all agree that murder and terrorism are very serious crimes, as are genocide, sexual assault and rape.
Where do we draw the line? How do we distinguish a very serious offence that warrants a minimum sentence from one that does not?
Mr. Marchand: Thank you for your question, Senator Dalphond. Quebec’s position is that the minimum sentence for murder is reasonable and rational in terms of our justice system. However, the Quebec Bar Association’s position is not that all serious crimes must be subject to mandatory minimum sentences. I will refer back to my earlier argument, when I said that we have a judicial system where the judges are there, and I have a lot of faith in them; if the sentence is inadequate, it will be appealed. Imposing minimum sentences points to a lack of confidence in judges.
Sometimes, the offence is defined so broadly that we might realize that it doesn’t make sense for certain behaviours. That’s why the vast majority of court cases have been won based on section 12 of the Canadian Charter of Rights and Freedoms.
The removal of minimum sentences doesn’t mean there will be no more sentences, quite the contrary.
When you look at what the Supreme Court said in R. v. Friesen with respect to sexual offences against children, we don’t need minimum sentences, we know that sentences will be handed down. When we have clients facing these kinds of charges, we tell them that and they are aware of it.
We need to trust in the judicial system. The judicial system works well and when it doesn’t, appeals can be made to correct the flaws.
We’re talking about sexual assault and harassment, but all of that has been changed in the Criminal Code as well; they are now hybrid offences. It’s therefore possible to prosecute offenders by summary conviction, and they can get a maximum sentence of two years less a day.
In my opinion, minimum sentences point to a lack of confidence in the judicial system.
Senator Dalphond: With respect to maximum sentences — because the Criminal Code also has maximum sentences for almost all crimes — doesn’t that also infringe on judicial discretion? I’m trying to understand what kind of sentencing policy should be developed and the role of Parliament in that.
Mr. Marchand: With respect to the role of Parliament, I believe that maximum sentences aren’t really under attack right now; it’s mostly minimum sentences.
Maximum sentences are starting to be a problem in some cases. We have seen this in driving offences, for example. A permanent resident in Canada is told that the sentence is 10 years; we therefore try to see with the Crown if we can adjust the sentence for dangerous driving or settle it in another way. We try to come to an agreement and see if we can’t resolve it.
The whole debate and this bill are mostly about minimum sentences. The judge always has discretion regarding maximum sentences, unless another law is involved. For example, the Immigration and Refugee Protection Act ensures that there is no discretion unless Immigration and Citizenship Canada gets involved and a debate takes place before immigration authorities.
I find that maximum sentences cause some problems, but not as many as minimum sentences do.
Senator Dalphond: Thank you.
Senator Dupuis: I have a question for the Quebec Bar Association, but my first question is for Ms. Dunn.
Ms. Dunn, thank you for being with us today. From your testimony, I’m trying to understand what difference the minimum sentence makes in terms of the fear women have expressed to you that they won’t be taken seriously. In other words, whether we have minimum sentences or not, the Hockey Canada situation demonstrates that violence against women is tolerated to a certain extent, because it lasted for many years. It might have been made public by chance.
I understand very well why women are reluctant to report incidents because they are afraid no one will believe them. This is a major issue. Can you tell me if the sentence issue is a major problem or is it secondary to not being believed in the system?
[English]
Ms. Dunn: I believe that question was directed at me, but the interpretation was not working until the very end, so I missed nearly everything that you said.
[Translation]
Senator Dupuis: What I’d like to know — I believe that what you’ve pointed out is quite significant in terms of women having a lot of trouble reporting crimes because they fear no one will believe them. That’s what they have experienced, anyway; women were not taken seriously for a long time, and even today it’s what many women experience.
Are they not reporting because no one will believe them, or is it due to the presence or absence of minimum sentences? In other words, whether it’s a minimum or conditional sentence, or two years in prison, the same violence is going to be perpetrated against women; it’s only a matter of time. The person who was in the parking lot across from you is going to be there anyway, whether they served a minimum sentence or not.
In your experience, are women reluctant to report crimes because no one will believe them and they aren’t better protected by the judicial system, or is it the presence or absence of minimum sentences?
[English]
Ms. Dunn: Thank you for the question. The answer is both. Women have shared with us that they do not have confidence in the system based on what has happened to them when they go through the criminal justice system. They do not have confidence in the judges that they have appeared before. The times that they have had to appear in court, the times that they have had to testify — they don’t have confidence in that.
From a societal level, there is also that piece where women are afraid that they will not be believed. There may not be a charge, for example. It won’t go anywhere in the court system.
Honestly, I think it is a combination of both of those things.
[Translation]
Senator Dupuis: My next question is for Mr. Marchand, and it concerns negotiation. You’re a defence lawyer; what is the benefit to a defence lawyer of having or not having mandatory minimums?
Mr. Marchand: Thank you for the question, senator. For example, as I mentioned earlier, even if there is a sentence, a defence lawyer might be instrumental in seeing if it can be settled in another way, or opposing the minimum sentence.
I was with a client this morning; there’s a minimum sentence for their offence and we discussed that. We’re going to have to make a challenge, because our Court of Appeals has yet to rule on the minimum sentence in question in our case. The stare decisis rule cannot apply since we don’t have a precedent or a Supreme Court decision.
So I had to discuss that with my client to tell him how much it was going to cost. We’ll have to challenge it. I will need to send a notice to the Attorney General. The Attorney General will challenge the law and the government will defend the law. Then we’ll see what happens. Will the sentence be ruled unconstitutional or not? We might appeal the decision.
These are debates. When we have a client who isn’t criminalized and we look at this with criminologists, experts, they sometimes tell us that our client can’t go to prison because this or that will happen. They will lose all their assets. They will be abused by other inmates. They are going to fall from a great height. So we try to see what we can do to get them out of it. It’s a waste of time, because we might have —
The Deputy Chair: Thank you, Mr. Marchand.
[English]
Senator Pate: Thank you to the witnesses. I’d like to start with Ms. Dunn, but I’d like Le Barreau du Québec to answer this as well.
You mentioned the systemic failure of the criminal legal system to take seriously violence against women and how that has contributed to a mistrust and concern about some of these revisions. When you were before the House of Commons Justice Committee, you talked about Helen Naslund’s case. She was a woman who experienced three decades of abuse, who tried to escape and was unsuccessful, who was charged with first-degree murder and was induced to plead to manslaughter. On appeal, that was overturned. You also know — as do many others — of the number of women, particularly Indigenous women, who have been in similar situations and are induced to plead guilty because of fear of racism in the system in addition to the misogyny and the failure to take seriously violence against women.
Would you like to see judges have the discretion to not impose mandatory minimum penalties in those kinds of cases where we see that kind of systemic discrimination continuing on for women who have not been protected by the system, have then essentially been deputized to act for themselves and, when they act, are often in prison for lengthy periods — often for mandatory minimum periods?
Ms. Dunn: Senator Pate, thank you very much for asking that question. I’m very happy you did.
It was difficult to prepare for this presentation because we had to look at what women are saying literally in the room next door to me in the office and what their experiences are. I felt it would be very inappropriate for me to be sitting next door saying that we would agree with everything that you’ve just said, Senator Pate.
Yes, I did reference Ms. Helen Naslund when I was speaking before the House of Commons Justice Committee. That is a prime example of why I said at the beginning of the presentation that Bill C-5 could be a first step for where we need to go. It’s very difficult to say those things right now because the women to whom we’re providing service just do not have confidence in the system. It’s difficult.
This bill, like many others, needs to have a view through the lens of violence against women and what that might look like. When you’re thinking about Helen Naslund and everything she had to go through, and then the sentence she was given — 18 years was extremely over the top. A judge having more discretion, being able to really dig into the injustices that she experienced and bring to the forefront some of the situations that could really show that she was experiencing an injustice. She was an abused woman, and she shouldn’t be at fault for what had happened at the end of the day. That is so important.
It’s just very difficult because the women on the ground whom we serve are not there yet.
This is a good first step, but we need to think about public safety and all of that right now because that’s where we are.
Senator Pate: For the Barreau, please consider in your answer the Luxton decision in 1990, thank you.
[Translation]
Mr. Marchand: Thank you for the question, senator.
I think that if we get rid of minimum sentences, that problem will be solved. We don’t need to introduce a specific provision for Indigenous women if we say there are no more minimum sentences. That problem will be solved.
You brought up a significant issue, that defendants plead guilty because of minimum sentences, and it’s a serious problem. Sometimes the client doesn’t want to and they say they will take something else. We ask them if they recognize the facts. There are problems with pleading guilty to an offence when the person hasn’t committed an offence. Ethically speaking, you can’t do that. It does happen in court, though, in an effort to save the minimum sentence. We do see it.
I feel the Quebec Bar Association’s position to remove all minimum sentences except in the case of murder — I’m talking about prison sentences, not minimum fines — is a step in the right direction to avoid the type of problem like the one you raised.
The Deputy Chair: Thank you, Mr. Marchand.
[English]
Senator Simons: Ms. Dunn, I wanted to follow up on Senator Pate’s line of argument.
I take your point: I can think of many instances where it would be wholly inappropriate for someone to have a non-custodial, conditional sentence at home in the same community as the victim. However, I can also imagine scenarios where that might be the best case for the family, depending on the degree or the severity of the assault.
But it seems to me that women get it sort of coming and going on the one hand — you’re raising very legitimate concerns about the courts not doing enough to protect women who are victims of violence — and on the other hand, it’s not just the Helen Naslund case. There are dozens and dozens of cases of women who have struck back at their abusers. Whether they have killed them or not, they have then been subjected to very harsh penalties because they couldn’t get the relief and the protection from the courts in the first place.
What do you want to say to the government and the judiciary about how you would like to see them craft a law that gives women legitimate protection at both ends of the equation?
Ms. Dunn: Thank you very much for your question. I feel like I could take a long time to answer this question because it’s a very big question.
The women we serve would also say that we have a big systemic issue at play when you think about patriarchy. I know this is a very big answer to what you’re asking, but it’s very difficult because all of these systems were designed through patriarchy. So what are women to do when they are faced with those types of situations? It’s very absurd to say, “Well, let’s take away all mandatory minimum penalties only for women, but let’s keep them for men.” You can’t say that because you have to be fair to everybody.
Senator Simons: You sort of just did.
Ms. Dunn: I did, but the issue is that these structures were designed without looking through the lens of women.
When we first started talking about this as a team and were bringing this to the women we provide service to — and we’re very lucky that we have a survivors advisory committee that helps guide our work and shows us what is best for them based on their lived experiences. That is truthfully something that was asked: How do we get through some of these issues when this whole system was built on patriarchy?
Senator Simons, I do not know if that answers your question at all, but I think we need to break this down to more than race, and we need to look at women versus men as well. Race too, but we need to remember women.
Senator Simons: That’s the whole premise of gender-based analysis. Thank you. I think that was a terrific answer to my rather inarticulate question.
Ms. Dunn: I’m sorry. Thank you.
[Translation]
The Deputy Chair: I have a question for you, Ms. Dunn. I’m very concerned about the femicide rate. In the vast majority of cases, women are murdered without the perpetrator spending a single day in prison. It often happens under a peace bond, which is called an 810. Women are often most at risk in these situations.
If the bill were to pass as is and crimes like sexual assault, stalking and assault, which are very common components of domestic violence, are punished and subject to suspended sentences from now on, would women’s safety be further at risk? With a conditional sentence, the individual often returns to their victim’s vicinity.
[English]
Ms. Dunn: Thank you for your question. I truly believe that women are more at risk in this situation.
You’re right. Women and girls are five times more likely than men to be victims of sexual assault, and so those types of statistics are very alarming. At the end of the day, women know that. Women know that they are at risk for no other reason than the fact that they are women in the society that we live in.
Are women more at risk if the accused has to serve a conditional sentence? Yes, because even though there are conditions on that sentence, it doesn’t mean that the perpetrator is going to follow those conditions. I have a quick example for you, if that’s okay.
Here at our centre, we had a bomb threat. There was a man who said that he had placed a bomb in our building, and for us to go through the court system, it took from start to finish almost three years. And this man said, “I don’t have to follow any of the rules; I don’t have to do that.” He breached literally every single condition that he was given. He was in and out of jail for short periods of time, and he’s still on the street.
What does that do for the safety of the women and girls that we serve here? How does that make women and girls feel safe coming to a centre where they’re supposed to feel the safest?
To answer your question, conditional sentencing for those specific offences where women and girls are the victims, it’s not the right way to go, and women and girls — the women that we serve — feel like that puts them at more risk.
[Translation]
The Deputy Chair: Thank you.
Senator Clement: My call to action as I hear Ms. Dunn’s testimony is that —
[English]
Ms. Dunn, you should absolutely feel okay talking about the patriarchy. There’s no issue there. You can do that; it’s good. We need to talk about those issues and call them out.
[Translation]
The call to action I want to make as I hear your testimony is that women remain vulnerable today and they don’t feel safe. Once again, they become victims as they go through our judicial system. In my opinion, mandatory minimum sentences have done absolutely nothing to address that feeling women have.
My question is for Mr. Le Grand Alary. In your testimony, you stated that mandatory minimum sentences have created a system that is neither efficient nor effective. Can you elaborate on that? Why do you say that?
Mr. Le Grand Alary: As my colleague Mr. Marchand has said in his responses to certain questions, we need to remember that we often find ourselves in situations where a mandatory minimum sentence exists. However, for a variety of reasons, that sentence will not be appropriate for the defendant, either because of the objective seriousness of the acts committed or that individual’s intrinsic characteristics. For example, the defendant may be Indigenous or from another marginalized group.
The defence lawyer may have to legally challenge the sentence before the courts. The case can’t be settled by pleading guilty to an offence, because perhaps the Crown won’t have the discretion needed to negotiate a common suggestion that meets the needs at hand.
These are all things that weigh down the system and the process. They will require multiple appeals and they make the system less effective and efficient. If we had no mandatory minimums, or if we allowed for judicial discretion in sentencing, we would probably run into these situations less often.
Senator Clement: I’d like to thank all the witnesses for your testimony and the work you’ve done.
[English]
Senator Gold: Ms. Dunn, congratulations and thank you for your presence and your work, indeed.
Some of the people who get conditional sentence orders — or could get them if Bill C-5 were to pass — are women who themselves have histories of abuse, sexual abuse and other abuses, and then ultimately are convicted or charged with criminal acts. Our prisons have far too many such cases.
Could a woman in that situation not be well served by a conditional sentence order rather than be in prison? In that regard, would not Bill C-5 be of assistance to women who are, in fact, victims of abuse though charged with other crimes?
Ms. Dunn: Thank you for your question. I think this question speaks to what I mentioned before about how this topic is very difficult for an agency like ours because the answer is yes. For women, of course, conditional sentences could be helpful because women would be able to, perhaps, access supports in the community that could help them. I know when we’re speaking like this, we are thinking of all people so I know that, in turn, by me answering like that it means that technically I should believe that conditional sentences for, perhaps, a man that has been convicted of sexual assault should be the same. I get that, and I understand how that would be confusing.
But the issue here is that women are still a very vulnerable population. When you think about, for example, victims of human trafficking, sometimes there are women who have also been charged with a trafficking offence. But they’re victims at the same time because they have been, for example, lured or groomed into it as well, and they are recruiters for the traffickers and could at the end of the day be charged for trafficking. In that case, a conditional sentence for those women would be very helpful.
Does that answer your question?
Senator Gold: Sure. Thank you very much.
Senator Pate: My question is to follow up with the Quebec Bar Association.
Would you be opposed to a provision in this legislation that would allow judges structured discretion to do their jobs in all cases, particularly in light of Mr. Le Grand Alary’s position on the situation, particularly for those women, as we’ve already spoken about, who have experienced abuse? There are lots of young people as well.
The last time the Supreme Court of Canada looked at the life sentence alone was a long time ago — in 1990. In the Luxton case, they said the constitutionality was protected by the fact that we had a faint hope clause — which, as you know, was repealed in 2011.
Is your position that that kind of discretionary provision would be helpful or not helpful?
[Translation]
Mr. Marchand: Thank you, senator. If I understand correctly, you’re talking about eliminating the possibility of applying for parole after 15 years? I pled the first case in Canada several years ago with the late Mr. Sacchitelle, the Chartrand case.
I remember when we arrived at the prison and when we spoke to everyone. They were all happy; the prison guards came to see us, because we were telling the inmates that if they wanted parole after 15 years, they had to have no disciplinary record in prison, they had to follow the programs, etc. Everyone at the prison was happy, the inmates had hope, the guards said it would eliminate violence in prisons, and everyone was cheering for us.
We took all the hope away and it was a bad idea to do that. If the individual is dangerous, the Parole Board won’t release them; they will remain in prison. Does that answer your question?
[English]
Senator Pate: No. I apologize if I didn’t explain it clearly.
Would the Quebec Bar Association object to a provision in this legislation whereby for any mandatory minimum penalty that is not repealed, judges would have the discretion in certain situations to not impose the mandatory minimum penalty?
[Translation]
Mr. Le Grand Alary: We fully support that. We agree with this provision and there is an example of it in Bill S-213. There have been many other bills. You’ve introduced similar bills before that granted judicial discretion for minimum sentencing, and we support such measures.
Senator Pate: Thank you.
[English]
The Deputy Chair: Thank you to our witnesses. Your testimony was very much appreciated.
Thank you, senators, for your questions, which were very much appreciated as well. We will continue our debate on Bill C-5 tomorrow at 11:30 a.m. Thank you.
(The committee adjourned.)