THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, September 29, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:31 a.m. [ET] to study 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 morning colleagues. My name is Pierre-Hugues Boisvenu. I am the deputy chair of the committee and I will have the honour of chairing today’s meeting. I will take a few moments to inform you that we are studying Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.
I would like to take a few seconds to introduce my honourable colleagues around the table: Senator Batters, who will be here in a few minutes, I assume; Senator Clement from Ontario; Senator Cordy from Nova Scotia; Senator Cotter from Saskatchewan; Senator Dalphond from Quebec; Senator Dupuis from Quebec; Senator Gold — I should have named him first, since he is the bill’s sponsor; Senator Pate from Ontario; Senator Simons from Alberta; Senator Tannas from Alberta; Senator White from Ontario; and Senator LaBoucane-Benson from Alberta.
[English]
Our first witness, from the Canadian Bar Association, Tony Paisana, partner at Peck and Company, by video conference; and from the Criminal Lawyers’ Association, Anne-Marie McElroy, Counsel.
[Translation]
I’ll turn it over to you. You will have five minutes, followed by four minutes for questions from each senator. We will try to respect the time allotted as much as possible. Hopefully both the questions and the answers will be brief.
We begin with Tony Paisana, from the Canadian Bar Association.
[English]
Tony Paisana, Partner at Peck and Company, Canadian Bar Association: Thank you. I’m the past chair of the CBA’s criminal justice section. As you are aware, the CBA represents approximately 36,000 lawyers, students, academics and jurists across Canada. In our section, the criminal justice section in particular, comprises a mix of both Crown and defence counsel, and it’s from this unique, balanced perspective we appear today to give our submissions on Bill C-5.
I will be addressing you on the provisions in Bill C-5 related to Conditional Sentence Orders, or CSOs, and mandatory minimum penalties, or MMPs. Put simply, the CBA supports Bill C-5 in its current form. As stated in our brief, this legislation will lead to a fairer, more just sentencing regime, one that recognizes that criminal offences can be committed in various ways, and that one size does not fit all, particularly when it comes to offenders from marginalized communities in our country.
The lifting of prohibitions on conditional sentence orders is among one of the most important reforms in the criminal law over the past decade, if not the most important. We make several points about CSOs, but I will highlight three here. First, CSOs are vital to the proper functioning of the criminal justice system and to ensuring that non-dangerous offenders are encouraged to rehabilitate rather than harden themselves within our prison system. I emphasize and reiterate — CSOs by statute can only be granted to non-dangerous offenders who commit an offence deserving of less than two years in custody. Second, making CSOs available does not mean you will receive it. Indeed, I successfully argued a constitutional challenge to some of these very provisions in a drug trafficking case called R. v. Chen, but the trial judge nonetheless imposed a four-year sentence on my client. The sky did not fall, but as a result of that decision, numerous other marginalized people in B.C. now have access to CSOs where appropriate. What we’re talking about is affording sentencing judges more discretion, not less. Suggestions that serial rapists, human traffickers or other serious offenders will now be liberally afforded CSOs are fanciful. These people will continue to go to jail as they always have.
Third, the need for reform is urgent, and I highlight and emphasize this point. As a result of a patchwork of constitutional challenges across the country, Canadians have inconsistent access to CSOs. If a drug-addicted mother of three commits a low-level trafficking offence to feed her addiction in the downtown east side of Vancouver, she’s eligible for a CSO. However, if that same offender commits that same offence in Winnipeg or Edmonton, she’s not. The lack of uniformity is troubling, inconsistent with our federal system, and manifestly unfair.
With each day that goes by, more non-dangerous offenders are sentenced to jail where they might otherwise be provided an opportunity to rehabilitate in the community, where access to programming, work, treatment and counselling are more accessible and cost effective to the state. The time for reform is now. Criminal law practitioners have been awaiting these reforms for years, and so have the courts. The B.C. Court of Appeal has declined to determine the constitutionality of prohibitions on CSOs no fewer than three times in the past year, citing each time the fact that this bill is before parliament. While there’s certainly room for further debate and reform, it’s vital that we don’t throw out the baby with the bathwater in hopes of perfection. It’s critical that this bill pass, and pass with haste.
The CBA also supports the repeal of MMPs as set out in Bill C-5. The Supreme Court of Canada made it clear that these provisions and others like them tend to violate the charter and are inconsistent with the nuanced Canadian approach to sentencing. This approach, distinct from others around the world, particularly our friends to the south, is known for common sense, logic, compassion and practicality. It’s one capable of taking into account all relevant factors in producing just and lawful results. It’s not one that intends to make everyone happy. No justice system is capable doing that. It’s a system where judges trained in the law use their discretion to do what’s right and just. That is the task they are best suited to completing, and must be afforded the discretion to properly do their work. We have, for many years, advocated for increased discretion for these reasons, and these reforms are consistent with that position, and we support them. Thank you.
[Translation]
The Deputy Chair: Thank you. We will now turn it over to Ms. Anne-Marie McElroy.
[English]
Anne-Marie McElroy, Counsel, Criminal Lawyers’ Association: Thank you very much for having me today. I’m here on behalf of the Criminal Lawyers’ Association, which is an Ontario-based organization that represents over 1,800 criminal defence lawyers. Personally, I’m a defence lawyer based in Ottawa, and I’ve been practising for about 12 years. My comments are also informed by my own experiences in trial courts and before sentencing judges.
The Criminal Lawyers’ Association, or CLA, is broadly supportive of Bill C-5 in terms of the removal of mandatory minimum sentences and the broadening of the availability of conditional sentences. These measures will restore the judicial discretion that’s currently limited in these types of sentencing and will assist in allowing judges to impose fit sentences, particularly for those who are disproportionately represented in the justice system, including Indigenous people, racialized individuals, those struggling with mental health issues and so on. Bill C-5 eliminates certain mandatory minimums, and the CLA believes that the bill could go even further to eliminate all mandatory minimums. It’s our position that if we’re acknowledging that a one-size-fits-all approach doesn’t work for certain offences that it is true of all offences and that judicial discretion should be allowed in all sentencing matters.
I want to speak briefly about an important distinction between available sentences and fit sentences. In some cases, an available sentence is not a fit one, and in others, likely because of a mandatory minimum, a fit sentence is not available.
We often say in criminal law that sentencing is an art. It’s an individual process where the judge is looking at a range of available sentences, taking into account the particular background of an individual, the circumstances of an offence and the moral blameworthiness of their actions in order to craft a fit sentence. To illustrate, we can consider two people who are charged with the exact same offence who are coming from different backgrounds. For example, you might have someone who has trafficked a small amount of drugs, is addicted and has no criminal record. Then you might have someone else who is trafficking drugs, is not from a marginalized community, is doing so purely for financial gain and has a lengthy record. There will be a much different tally in terms of the aggravating and mitigating factors for each of these individuals. Simply because you made a lesser sentence available to that first individual does not mean that the second one is going to receive a more lenient disposition. That available sentence does not fit in this case.
When we have a lack of judicial discretion, we encounter situations where a fit sentence is not available. This was the case in R. v. Sharma, a Court of Appeal for Ontario decision, where the appropriate sentence was a conditional sentence. But that was only permitted following a constitutional challenge to the lack of availability of conditional sentences. Had Ms. Sharma not brought that constitutional challenge and the court found that her rights under section 7 and 15 of the Charter had been violated, then the sentencing judge would have been forced to impose a custodial sentence, and she would have served her sentence in jail.
It’s also important to remember that our appellate courts provide sentencing judges with guidelines in terms of the appropriate ranges, the salient principles of sentencing and the aggravating and mitigating factors to consider in crafting a sentence. Therefore, if they do make an error, they’re beholden to these appellate courts in order to have the sentences reviewed. If there is concern that this bill would somehow allow for a rash of inappropriate sentences, those concerns should be allayed by the fact that unfit sentences can be appealed and reviewed by a higher court.
The Criminal Lawyers’ Association, or CLA, has concerns with respect to the amendments of drug diversion, mainly that it vests all of the discretion with police or prosecutors. Where the goal is to reduce the criminalization of racialized and Indigenous individuals, giving police the power to decide which people to charge, or giving prosecutors the power to decide which people to prosecute, is not the best approach. Essentially, our position is that the possession of drugs for personal use should be decriminalized. However, should the bill proceed, we would encourage that the charges presumptively be diverted. Police and prosecutors should be obliged to provide reasons as to why a warning or a referral wasn’t made, which would at least provide some accountability.
In sum, the CLA is supportive of the broadening of the availability of conditional sentences and would like the bill to go further with respect to mandatory minimums. While we agree with the declaration of principles with respect to drugs being a social and health issue, we do not agree that the bill provides the right approach. Thank you very much.
[Translation]
The Deputy Chair: Thank you very much. I will now turn it over to the bill’s sponsor, Senator Gold. You have four minutes.
[English]
Senator Gold: My first question is for Ms. McElroy. There’s been a lot of discussion around this table about a so-called safety valve or structured discretion that would allow judges to opt out of mandatory minimum penalties in exceptional circumstances. Can you give us the benefit of your experience? How do you think that would operate in practice? What would be involved for a defence lawyer to try to convince a judge to treat a client’s case as worthy of this treatment?
If I can, I’d also like to ask you to comment on the following: Do you see any risks that such a form of structured discretion might favour one group of people over others? Is it possible or likely that people with means or who come from non-racialized communities might benefit from it versus others who are less stable or perceived to be less stable and who have committed the same offence? I’d like to hear you on that.
Ms. McElroy: I’ll start by saying that with respect to what the exceptional circumstances would be that hasn’t been set out as far as I’m aware. I’m not clear on what the exact circumstances or test would be there. There would need to be some development in terms of what criteria are required. The concern that the CLA has in terms of these sort-of safety valves is reflected in your question. There’s concern that they might only benefit those people who are more privileged and are not part of the marginalized populations for whom we’re hoping to reduce incarceration or representation in the system.
What I can tell you in terms of the concern is that sometimes when we have individuals that are before the courts, they’re not necessarily starting with a murder charge. It might start with a mischief and a theft as a youth and then progress a little bit to become a more serious charge. Then you might see a robbery or whatever. So by the time we’re looking at a very serious charge that involves a mandatory minimum, all of the issues and challenges they faced in their life may have already put them in a position where they are not seen as deserving this out. If they’ve already amassed a lengthy criminal record, and if they’ve already been involved in activity that is seen as not prosocial, then they may no longer qualify as that exceptional circumstance. Again, the discrimination and marginalization they faced might serve to make it that they’re not accessing or reaching that qualification of an exceptional circumstance.
Senator Gold: Thank you. Second round if I may?
Senator Dalphond: My question is for the representative of the Canadian Bar Association, Mr. Paisana. Thank you to all the witnesses for being with us this morning.
I noticed in your testimony, a few moments ago, that you said it’s critical to pass the bill with haste. Would you mind elaborating on that statement, sir?
Mr. Paisana: Yes, thank you for the question, senator.
The problem with the availability of CSOs is one of a national concern because there are a number of provinces that don’t have a successful constitutional challenge. In Ontario, the Sharma case that you’ve heard about has, in essence, freed up conditional sentences for Ontarians. In British Columbia, there was a case called Chen that I was involved in that freed it up for British Columbians. But now you have this patchwork of constitutional challenges where depending on what city you live in, you may or may not be eligible for a CSO. That’s completely inconsistent with our federal system of law.
In addition, there are a number of cases that are being held up in the system in hopes that this bill passes because it will free up a sentencing option. People are aware that this bill is being debated and are delaying their trials and holding off on their sentencing in order to make the pitch, when it becomes available, that they can have a CSO. They have been doing so now for the better part of a year because this is the second incarnation of this bill, as it died on the Order Paper in the last session.
We are very concerned that if we maintain ourselves in this perpetual state of uncertainty, all of these cases will continue to be delayed and create additional knock-on effects to the criminal justice system generally.
Senator Dalphond: I understand you made this statement based on your own experience but also those of your colleagues working in the criminal law field?
Mr. Paisana: Definitely, and even the courts, as I mentioned. There have been no less than three Court of Appeal decisions in British Columbia that have put off the decision on the availability at an appellate level of CSOs because this bill is being debated. They explicitly state that the government has promised to do so in 100 days and so on and so forth because there’s been this expectation that this bill will pass. Everyone is really on the edge of their seat waiting for it to pass.
Senator Dalphond: Thank you very much.
The Deputy Chair: Senators, the Canadian Association of Black Lawyers representative, Raphael Tachie, has just been connected with us. If you allow, we will give him four or five minutes to present his testimony.
Raphael Tachie, President, Canadian Association of Black Lawyers: Thank you so much. My apologies for joining late. I was having issues with the link, and my little one is sick from home today. I’m playing advocate and parent at the same time this morning.
The Canadian Association of Black Lawyers wishes to limit its comments to three issues: mandatory minimum sentences, the CSOs — as I head Mr. Paisana speak to — and the evidence-based diversionary program.
With respect to mandatory minimum sentences, the bill, while it proposes to repeal four-year minimum mandatories, would leave intact the five-year minimums. For us, that is something that the committee and Parliament should really look at removing.
The result, only when available to an offender to avoid a minimum sentence, would be if a prosecutor acting really expresses prosecutorial discretion to seek a lesser charge. Removing access to mandatory minimum sentences in all cases would be a really helpful way forward to limit over-representation of Black and other disadvantaged groups in the criminal justice system.
In order to address this possibility, we propose that the bill look at providing judges the discretion to impose the kinds of sentences that they think appropriate when there are crimes that involve drugs and weapons charges. In that instance, removing those minimum mandatory sentences in those cases will help limit the over-representation of Black, Indigenous and other disadvantaged groups in the criminal justice system.
Mandatory minimums often hamper real justice from being done, and when included in legislation, the justification is usually that of having a deterrent effect. In addition, they are normally touted as an indication of the severity of an offence and how serious a government considers particular offences to be. You can hear these kinds of commentaries coming back more recently.
In our view, numerous studies that show that mandatory minimums do not work to address these sentencing principles; in fact, they often have little impact on crime rates.
Quickly, I’d like to touch on conditional sentencing orders. These are essential to combating recidivism, as they can allow offenders to maintain familial ties, employment relationships and school commitments while also addressing the results of inappropriate behaviour or having committed a crime. However, given the historical application of CSOs and being mindful of its requirement of similarity in sentencing, it would be important to reinforce that a CSO can be imposed where the court is satisfied that a service of a sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing.
Enforcing this language can encourage judges to canvass the appropriateness of CSOs and reduce arbitrary limits to their use, such as requiring an offender to have employment in order to be considered suitable for a CSO.
In the interests of time, I would just like to skip a few comments on evidence-based diversionary measures that we would encourage the bill to consider and to include. It is laudable that the federal government is encouraging the use of alternatives to address cases of simple drug possession. This works to combat criminalization of simple substance use, drug dependencies and addictions. The addition of section 10.1 to the Controlled Drugs and Substances Act, which makes reference to the fact that problematic substance use should be addressed primarily as a health and social issue, is very important.
We think the legislation would benefit from greater clarity in the following areas: Where a provision requires the exercise of police or prosecutorial discretion, details should be outlined in the statement of purpose and principles set out in section 10.1 to provide a clear mandate of the intended scope of the section and its prevalence. In subsection 10.1(c), some degree of discretion might be provided as to how simple possession is to be determined. This discretion must be flexible enough to allow for the personal circumstances of an offender to be taken into account. Finally, a non-exhaustive list of factors should be included to provide further guidance to police and prosecutors around the exercise of discretion in issuing warnings and referrals.
To conclude, the only thing I’d like to add is to emphasize the comments that were coming earlier around the timing of this issue. When we heard of Bill C-22 in the last session, we were very excited, jumped on board and supported it. It died on the order table, and the longer this bill sits on the Order Paper, it will also likely die. We would encourage you, while being excited about the changes that were recommended and we are passionate about in terms of the impacts on our community, we encourage you to work expeditiously to pass this bill so we can start implementing on the ground and helping implement some of these principles that we are all hoping to achieve.
Thank you so much.
The Deputy Chair: Thank you to both of you. We will go to questions now.
Senator Simons: Thank you very much. My question was going to be for Ms. McElroy, but now I think it will also be for Mr. Tachie.
Ms. McElroy, you’ve raised the question of negative option billing for the drug diversion. As I understand it, your suggestion is that, instead of leaving it up to the police and prosecutors to decide when somebody should go this way, everybody should be diverted, unless the police and prosecutors make a case that they should have a more conventional prosecution.
How would that work in practice?
Mr. Tachie, your proposal was to have a long list of explanations of when somebody would qualify for diversion. I don’t know if you had a chance to hear Ms. McElroy’s testimony, but what do you think of her idea to just flip the whole process and put the onus on the police and prosecutors to demonstrate if someone needed to be prosecuted in the old-fashioned way?
Ms. McElroy: Currently, what happens is that if a police officer is in the process of arresting somebody for possession of drugs, instead of, as the bill now sets, consider whether it would be preferable, having regard to the principles, to take no further action, they would have to ask themselves why they need to lay a charge. What requires me to do that when looking at a small amount for simple possession? Then it is to actually make a note of that; police are bound to take notes of everything they do. We know for the police, despite maybe their best efforts, there is some unconscious bias that can creep in. The Supreme Court has told us that racial bias exists in policing.
If they’re required to write in their duty book, “This is the reason that I have decided that I am charging the person,” then at least there’s some accountability and the ability to review to see if perhaps there is racial bias there, as opposed to giving them all the power and all the discretion to make that decision and not have to account for it in any way.
Senator Simons: Mr. Tachie, I’m asking this question because I want to hear your answer, but also because I want to see your lovely associate again.
Mr. Tachie: Thank you. My daughter has no idea that she’s in front of you.
I appreciate Ms. McElroy’s comments, and I will echo them. I won’t add anything because she explained so eloquently.
We would be in full favour of that approach. Our position took the system as it is today and said, “Okay, how can we get to a better result?” But exercise of discretion is always a challenge, because it opens up the concept of implicit bias. So to flip it around and have the police officer set out the reason why the least restrictive option is not preferred would be a good approach.
Senator Simons: Thank you both.
Senator Batters: Thanks to all of you for being here. My first question is to Mr. Paisana.
Quoted in the Global News, then Alberta Justice Minister, Kaycee Madu, stated:
Removing tough, mandatory penalties for actual gun crimes undermines the very minority communities that are so often victimized by brazen gun violence.
I’m wondering if you agree with that statement, and if not, why not?
Also, what effect might the removal of mandatory minimum sentences have on communities that experience higher crime rates?
Mr. Paisana: I don’t agree with that comment. I don’t think removing mandatory minimums undermines the communities they intend to protect.
The reason I say that is because, for the large part, gun violence and gun crimes are always going to attract prison sentences. They’re not crimes that are widely susceptible to a conditional sentence. It is in cases of an exceptional nature that will attract a conditional sentence when it comes to gun violence or gun crimes, situations we don’t immediately think of when we think of those crimes, such as someone who is a party to an offence, for example, like someone who is driving the car in which someone else is carrying a weapon and that driver knows they have the weapon but have no intention of using it but are a party to the knowledge of the possession of that weapon. That person is in a different circumstance than the possessor of that weapon or the person who may use that weapon.
In my respectful view, affording judges the discretion to sentence those kinds of offenders appropriately makes sense because you will be harming that community if that person happens to be coming from that community by sending them to jail because of an indiscriminate mandatory minimum penalty, whereas you will always find that the person possessing and using the weapon will continue to go to jail and the public purpose served by sending that person to jail will continue given the availability of that sentencing option even if you do not remove the CSO. That was what I was talking about with discretion. You’re not saying you’re going to get a CSO if it’s available, it’s just another option.
Senator Batters: Okay. Mr. Paisana, there was a study done by the Research and Statistics Division of the Department of Justice that showed that proponents of mandatory minimum sentences argue that the removal of judicial discretion could allow for more equality in criminal sentencing, allowing for consistency, preventing judge shopping and reducing disparities in sentencing. What about that argument? Do you agree with that? Why or why not? Would you agree that the removal of mandatory minimum sentences by Bill C-5 could increase inequality of sentencing?
Mr. Paisana: There are always going to be challenges to equality and sentencing for the reasons some of my friends have talked about already, that being certain offenders come from particular backgrounds that make them more eligible or seemingly more attractive to a conditional sentence order. I don’t think there’s a solution that will fix that problem in the short term.
I think the removal of MMPs and the broadening of availability of CSOs will reorient judges to the concept of discretion in these cases. It would allow them to think more flexibly with respect to the circumstances of the particular offender, which is their primary task. The Criminal Code has been drafted this way for many years. A sentence imposed has to be proportionate not only to the offence, which is one side of the category, but proportionate to the gravity of the offence in the context of that particular offender. Reorienting judges to that discretionary exercise will have a net positive effect on equality in my respectful view, because you will now be able to take into account background circumstances — as we’ve been advised by appellate courts that we should do — that may include race, ethnicity, discrimination and all of those factors that get eliminated from consideration when there is a mandatory minimum penalty.
Senator Batters: Okay.
Senator Pate: Mr. Paisana, when you were before the Justice Committee on this bill, you talked about the fact that:
Each day that goes by, more non-dangerous offenders are sentenced to jail when they might otherwise be provided an opportunity to rehabilitate in the community, where access to programming, work, treatment and counselling are more accessible and cost-effective to the state.
You went on to say:
In my respectful view, it is overly simplistic to look to just the name of the offence and close the book. What we have to think about is not just the evidence, but what happened.
Then later on you said:
I reiterate what I said earlier today. This is only about giving more discretion, not less.
My understanding is that many organizations right now are re-examining their positions, as is the Canadian Bar Association in saying that they agree with the elimination of all mandatory minimum penalties, save for murder, in light of the reality of the disproportionate impact on women who have historically experienced violence, in particular Indigenous women, who are then either induced to plead guilty to lesser offences after being charged with murder or are convicted of murder in situations where they should have had access to a defence.
I’m curious as to how you would comment on that and whether you would see it as inconsistent to amend this bill to allow a provision whereby judges have the structured discretion not to impose mandatory minimum penalties in situations where they feel it would be disproportionate and unfair. After you answer, I’d also like to hear from Ms. McElroy and Mr. Tachie. Thank you.
Mr. Paisana: Thank you, Senator Pate, for giving me the opportunity to address what I think you are getting at, which is the safety valve suggestion. I have a couple of comments on that.
We should be careful when considering a safety valve for two reasons. Not to say that it isn’t a good suggestion, it’s just that we have to be cognizant of two factors. One is that when you introduce a safety valve, it has the effect of immunizing any future mandatory minimum penalty or any existing mandatory minimum penalty from Charter scrutiny. Under section 12 of the Charter, if you introduce a safety valve, it will, in effect, mean that any future mandatory minimum penalty will be impervious to a Charter challenge, which has the risk of encouraging mandatory minimum penalties to be introduced in the future, with future governments pointing back to the safety valve and saying, look, it’s unconstitutional for this reason. It may have the unintended consequence of proliferating mandatory minimum penalties on the books.
The second is the standard by which you set the safety valve. If it’s set too high, it will perpetuate the inequalities you’ve heard about in terms of who can access the safety valve. We have to make sure that is forefront in mind. A very important example of this is found in the Sharmadecision of the Ontario Court of Appeal, where they discuss access to suspended sentences. For many years, suspended sentences have been given in lieu of a conditional sentence in “exceptional circumstances.” Almost invariably, these exceptional circumstances are skewed in favour of individuals who come from more positive backgrounds or backgrounds not fraught with the difficulties in our marginalized communities. That can also perpetuate the inequality of the system.
Senator Pate: If I may, I would like you to comment on the logical inconsistency of that with the Luxtondecision and the likelihood that we are unlikely to see any challenges to these provisions, given the reality of the indigence of many of the individuals we’re talking about.
I hope I’m not hearing you suggest that we should just let everything go, that this is the only opportunity at this stage and to rely on individuals who are coming before the courts to seek, find and follow up with the resources, to go all the way to the Supreme Court of Canada to have them revisit what they said in Luxton and Bissonnette, and when they talked about the constitutionality of the life sentence is in jeopardy if we don’t have the “ faint hope clause,” which was repealed in 2011.
Mr. Paisana: To be clear, we very much support any notion of returning the faint hope clause to the Criminal Code.
[Translation]
The Deputy Chair: I’m sorry, but the question was too long. I remind honourable senators to keep their questions brief so witnesses have time to answer.
[English]
Senator Cordy: Thank you very much to all three witnesses. Your testimony has been very moving. I’ve spoken out against mandatory minimums very often in my time in the Senate, particularly when they seem to be multiplying like mushrooms.
Anyway, my question is for Mr. Paisana. You certainly said that mandatory minimums should be removed. I believe you said that one size does not fit all. Statistics show us that mandatory minimums result in over-incarceration, particularly for minority groups, disadvantaged groups and women. My question is almost the opposite of an earlier question. What impacts does incarceration and mandatory minimums have in terms of family, community and culture, particularly when we’re looking at racialized and Indigenous groups?
Mr. Paisana: Thank you. That’s a vitally important question. We, in the criminal justice system, particularly defence lawyers, tend to focus on our client. We tend to focus on the person before the court and we lose sight of the broader impact a sentence may have on the community from which that person originates. Particularly when it comes to Indigenous communities, communities in remote areas and racialized communities.
If you take away the primary breadwinner, for example, or a significant family member because of the lack of discretion, because you have to impose a three-year or five-year jail sentence, you impact not only that person but the persons around them. It can have a profound impact on them. It is directly contributory to the breakdown of families and marriages, the perpetual cycle of children who do not have parental figures in their lives because they are incarcerated, all in the name of an arbitrary and indiscriminate sentence.
If you don’t afford the flexibility of a conditional sentence in some of those circumstances — not all, but in some where appropriate, where the harm associated with giving a prison sentence outweighs the harm that might be associated with allowing them back into the community, you’re doing a disservice to the community at large and not just to the accused.
Senator Cordy: A lot of people are wearing orange around the table today. We’ve heard a lot about generational trauma. When we have these mandatory minimums, which data shows the incarceration rates are longer and more frequent, would that in fact cause family trauma over generations?
Mr. Paisana: One can’t think of a more apparent and obvious colonial legacy than the imprisonment of your own population on laws that you had no meaningful role in crafting.
It is a perpetuation of that sentiment and those problems. If you come from those communities that have been constantly targeted by the criminal justice system and suffer from the byproducts of prison systems and incarceration up the line of your lineage, it’s more likely — it’s just beyond any debate — that you will also be subject to those same effects.
Mandatory minimums can have that legacy effect, if I can call it that — one that is not positive, obviously.
Senator Cordy: Thank you.
Senator Cotter: Thank you to the witnesses for their presentations. They are always insightful.
My question is mainly for Mr. Paisana. I read the Canadian Bar Association brief on this issue with some care, and I noted that there are six pages of what appears to me to be compelling arguments about the problematic nature of mandatory minimums in the criminal justice system. Then, in the conclusion portion, the CBA says that it supports the repeal of unnecessary and unjust mandatory minimums and agrees with the MMSs that would be removed by Bill C-5.
It seems to me an incomplete conclusion, given the powerful arguments against mandatory minimums, because it leaves in place for all the rest of them all the arguments that you make that say that MMSs are bad. Indeed, it also leaves in place what I think is the ethical conundrum you identify in the brief for prosecutors and defence counsel to try to circumvent the implications of MMSs, particularly if there’s no structured discretion to be brought to bear in particular cases.
So I’m curious to know whether you think the bill should go further, either with respect to the removal of more of the MMSs or that structured discretion can at least solve most of the problems that you identify in the brief.
Mr. Paisana: Thank you, senator.
To be clear, the CBA’s position and policy is that we are against mandatory minimum penalties for all offences, save and except for murder. That has been our position for the better part of three decades.
To be clear, our submission is tailored and focused to the mandatory mandatories that have been identified in this bill. We would support the further repeal of mandatory minimums beyond this bill.
I reiterate the comments that I made earlier about the safety valve or what I think people around the table are calling the structured discretion. Because I do and the CBA does take the position that repeal is the far preferable course than a safety valve because of the problems I’ve identified.
What I would say more practically — and this is very much a practical submission — is that the time is now to move at least this far. We do not have the luxury, in my respectful view, to continue to study, to continue to amend and to continue to debate. It is a pressing crisis in our criminal justice system that needs whatever incremental changes we can make today to be made and to come back to the drawing board and to pass another bill that might address those other issues.
I just cannot overemphasize the urgency with which these changes, particularly when it comes to CSOs, have in our system. It is just running amok not to have these options available to us, and if we continue to delay the process in the hopes of better goals — and I completely accept that they are laudable goals — we might, as I say, lose the baby with the bathwater.
So I’m encouraging urgent action today.
Senator Cotter: Thank you.
[Translation]
Senator Dupuis: Thank you to our witnesses for being here today. My first question is for Ms. McElroy. You said something we don’t often hear around this table. Did I understand you correctly? Did you say that if, for example, a person has amassed convictions from a young age, leading up to more serious convictions, that could keep them from qualifying as an exceptional circumstance?
I would like you to clarify this for me. In other words, even if we added judicial discretion, despite the mandatory minimums, in reality, it would not change the fact that many people from marginalized groups would still not qualify, is that right?
[English]
Ms. McElroy: I do believe that sometimes, the bulk of a person’s experience can lead to them perhaps not being eligible, so to speak, for an exceptional circumstance. Sometimes, and I’m thinking particularly of some of my youth clients coming from racialized backgrounds, when we look at these pre-sentence reports or psychiatric assessments that they give, we see that from the early days of their lives, they’re dealing with issues within their family and family dislocation. It translates into difficulties at school and oppositional defiance. It turns into finding refuge in drugs or finding a peer group that is not a prosocial group.
Those things accumulate so that if it comes to a point where they are accused of a crime that has a significant impact in terms of the sentence that it attracts, when the judge is considering all of the aggravating and mitigating factors, there may be a big pile of aggravating factors that are at play that are there by virtue of all of the challenges and the marginalization that the accused has faced throughout their life.
Obviously, a judge will have the ability to take into account the full background of the individual, different factors and their moral blameworthiness in the offence, but I do think that sometimes, by the time young men are hitting their early 20s, by virtue of all of these different factors, they are in a very challenging position.
[Translation]
Senator Dupuis: Thank you. I have a question for the representative of the Canadian Bar Association, to follow up on Senator Cotter’s question. You speak of the urgency, if I can put it that way, to at least pass Bill C-5, because it is a step in the right direction. Are we at a point where we need to completely rethink sentencing principles in criminal law?
In other words, instead of proceeding with adding or removing a certain mandatory minimum, we seem to be going back and forth between those who want mandatory minimums and those who don’t.
The Deputy Chair: I repeat, if you use the last minute of your allotted time to ask a question, there won’t be time for an answer. Remember the instructions I gave you. I am the time keeper, but you must manage your time.
Senator Dupuis: I’ll wait for the second round.
[English]
Senator Clement: Thank you. I found your answers to Senators Dupuis and Gold really compelling, Ms. McElroy. They remind me of the fact that the systemic racism is so deeply entrenched.
I haven’t practised criminal law, but I’m a legal aid lawyer, and I’ve practised long enough to represent the children of the clients I had at the beginning of my practice. I realize that’s because the system has not intervened to help people when they needed it. It’s what drove me into politics, actually.
My question is about politics, because I think we are in a political context where we have to understand the law and Canadian people feeling safe — or understanding that MMPs were going to bring consistency and safety. They haven’t. I heard Mr. Paisana say they don’t work.
However, we heard a compelling witness yesterday, an executive director of a women’s shelter, saying women don’t necessarily trust judges. Can any of you speak to that? How do we talk to Canadians about increasing judicial discretion when the pushback is whether that can be trusted?
Ms. McElroy: The public perception piece of it is really important, and the public education part of it might be part of the answer.
I think one thing that’s important to remember is that the people who are proponents of mandatory minimums seem to think that there’s a deterrence value there, that other people will realize, okay, I’m going to face this X amount of time; therefore, I will not do that.
I don’t think there’s any evidence on an individual basis that people are broadly aware of what the penalty might be and then they choose not to engage in a certain kind of behaviour that would attract a criminal charge. So the deterrence part there, I don’t think, is a good foundation for that.
In terms of the trust of judges, I would say that obviously domestic violence is a real problem in Canada. The Criminal Code has been amended to provide for some measures to address this. Intimate partner violence is an aggravating feature on sentences statutorily. That’s in section 718.2 of the code. So that’s one thing.
There’s also an automatic reverse onus on bail, so the person is going to have the onus to show why they should be released when they have a previous conviction for domestic violence.
The other thing is that while a mandatory minimum or the availability of a conditional sentence does restrict judicial discretion, that’s not the only thing that informs what a sentence is going to be. The Supreme Court of Canada has sent a message to sentencing courts that domestic violence is not to be tolerated and it’s to be treated seriously. The tariffs, so to speak, for those types of offences are going up.
While I’m sympathetic to the idea that it’s hard for people who are dealing with domestic violence to have trust in the judicial system, there are ways other than a mandatory minimum or restricting the availability of a conditional sentence that can achieve those sentencing principles.
[Translation]
The Deputy Chair: Thank you. I have a question for Mr. Paisana. I read a sentence in the submission of the Canadian Bar Association brief that took me aback:
The reality is that serving a sentence, confined in your home on the threat of imprisonment is a significant penalty for non-dangerous offenders . . .
Do you believe that extending house arrest to convictions for sexual assault, criminal harassment and human trafficking would be extending it to non-dangerous offenders?
[English]
Mr. Paisana: The bill is crafted in such a way that would allow for a conditional sentence for such an offender, and we believe that this is appropriate. The house arrest condition is one of the most onerous conditions available under Canadian law, and it has a significant deterring and rehabilitating effect. For non-dangerous offenders, it makes a great deal of sense because for the offender who is on the precipice of more serious offending or is on the edge of falling off the cliff to more serious offending, it is the critical time at which counselling and rehabilitative work is most valuable. If at that critical fork in the road, they instead go to a hardened prison system, you can expect that the result at the end of that sentence would be far less favourable than if given the opportunity to stay at home with their family and engage in counselling and rehabilitation.
I would say even for that kind of offender, the conditional sentence is a critical tool to the long-term safety of the community.
[Translation]
The Deputy Chair: We have a few minutes remaining for this meeting. There is still time for two more senators to ask questions.
[English]
Senator Gold: Thank you. A quick question anyone can answer in terms of your experience.
When you look at Bill C-5 and the repeal of mandatory offences in the Controlled Drugs and Substances Act and weapons and tobacco charges, could you give us a sense of your experiences, would this in fact significantly benefit accused persons of marginalized Indigenous communities?
Mr. Paisana: Absolutely.
Ms. McElroy: Yes.
The Deputy Chair: Is there another witness who would like to answer Senator Gold’s question?
Senator Gold: The representative of the Canadian Association of Black Lawyers might have familial duties that are more important. Thank you, chair.
Mr. Tachie: Sorry, I echo Mr. Paisana’s and Ms. McElroy’s comments.
The Deputy Chair: Your microphone is too high, sir.
Mr. Tachie: It’s too high? Sorry. My apologies. This has been an interesting morning. I echo the earlier comments.
Senator Batters: Thank you. My question is to Ms. McElroy. The 2008 report, Criminal Justice Diversion for Persons with Mental Disorders: A Review of Best Practices, produced by the Mental Health Diversion Project of the Canadian Mental Health Association, British Columbia division. They outline six key levels of diversion: community-based diversion, police-based diversion, pretrial diversion, court-based diversion, community corrections diversion and custodial corrections diversion.
How would Bill C-5 affect diversion at each of those points, or does it only affect a small number of them, if you are aware of that? You might need to look into that perhaps.
Ms. McElroy: Could I clarify if you mean with respect to all charges or drug charges?
Senator Batters: It doesn’t say just drug charges, so I’m assuming that it means all charges.
Ms. McElroy: Okay. My experience with diversion at this point — and it would be different for youth because there are different provisions under the Youth Criminal Justice Act.
For adults, typically what we see in Ottawa — I’ll restrict my comments to that jurisdiction — are that once a file gets into the system, the Crown prosecutor has the ability to screen it for what their initial position is, and that’s when we see the diversion come. They will look at it, and typically it will be charges on the lower end, such as thefts, mischief and so on, and the person does not have a criminal record. Then it gets referred to an agency, which often in our jurisdiction it’s the Elizabeth Fry Society, that provides either some counselling, other programming or requires some supervised community service. We see it at that point post-charge.
If it doesn’t end up that the person completes the diversion, then it would go back into the regular stream to be prosecuted.
Senator Batters: Right, but how does Bill C-5 impact on any of those points of diversion?
Ms. McElroy: I think what it would do, for the drug charges only, it would allow the diversion process to begin ahead of the file making its way to court.
Senator Batters: Thank you.
Senator Pate: Thank you again to all of the witnesses. My question is for all of you and it’s short.
We have heard testimony that, in fact, this act, while a positive step in the right direction, will not decrease the number of Indigenous and Black prisoners to the extent that it has certainly been billed by the government.
Does anyone have evidence here that would actually dispute that reality?
Mr. Paisana: Well, the reality is, we can’t possibly know its impact until we have a chance to use it. We can prognosticate as much as we’d like, but unless we have the tools, we won’t know how it will unfold. And my —
Senator Pate: Sorry to interrupt, Mr. Paisana, but we actually do have data from the Department of Justice on this. When it’s been reviewed by scholars and criminologists in particular, they have said it will have virtually no impact, except perhaps a bit at the provincial level because of the nature of the offences being addressed.
I would like the other witnesses to have a chance to answer as well, thank you. He doesn’t have the data.
Mr. Tachie: From CABL’s perspective, we launched research last year that spoke to perception alone. On the perceptions front, I think their lived reality is that the tools are important, and it will make a difference if we give the tools to the front-line folks.
The challenge is this: It is currently impossible to determine the nature of how implicit bias affects the front-line decision to charge or not charge or the prosecutorial discretion to seek the harsher sentences.
The lived experience is that these have impacted disproportionately certain communities, including the Black community. So the tools are important. My concern, from the perspective of the Canadian Association of Black Lawyers, or CABL, is that if we don’t move, what we’re doing is potentially risking that this dies on the order table again whereas this moves us materially forward. It’s not great and it’s not perfect. My comments include a lot of ways we think it can be improved. However, the view is that the better approach is to have a roadmap of how we ultimately get to a place that reduces over-representation of various communities in the criminal justice system. We can’t let the perfect be the enemy of the good.
[Translation]
The Deputy Chair: I thank our four witnesses. We wish your daughter good health.
I would now like to welcome our next witnesses. We have Mr. Kim Beaudin, National Vice-Chief of the Congress of Aboriginal Peoples, by video conference; Ms. Rebecca Jesseman, Associate at the Canadian Centre on Substance Use and Addiction, also by video conference; and Ms. Madeleine Redfern, President of the Nunavut Inuit Women’s Association at the Legal Services Board of Nunavut.
I would like to ask everyone to please adhere to the instructions.
[English]
You have five minutes each for your testimony. Each senator has four minutes. Remember, if your last question is one minute, that means the witness will not respond. So, short answer; short question.
Kim Beaudin, National Vice-Chief, Congress of Aboriginal Peoples: Good afternoon.
The Deputy Chair: We’ll have to try to get a better sound from your side, so we’ll go with the other witnesses. The next witness is Ms. Jesseman.
Rebecca Jesseman, Associate, Canadian Centre on Substance Use and Addiction: Thank you for the opportunity to speak today. I am here, as noted, on behalf of the Canadian Centre on Substance Use and Addiction, or CCSA. The CCSA was created by an act of Parliament 34 years ago with a mandate to provide objective advice based on the best evidence in order to reduce the harms associated with substance use.
I will focus my comments today on the components of Bill C-5 related to the Controlled Drugs and Substances Act, and will begin by expressing complete support for the removal of mandatory minimum sentences.
The declaration of principles provided in section 10.1 provides direction for the implementation of the legislation and for the evaluation of its successes. The brief submitted by CCSA provides suggestions for strengthening these principles by adding explicit recognition of the impacts of criminalization on health, housing and relationships in addition to the stigma of drug use and the role that the social determinants of health play in substance use.
I want to note that despite recognition of substance use as a health and social issue, Bill C-5 applies a diversion approach that remains grounded in the criminal justice system. In order to reduce harms related to substance use, diversion relies on two key factors. The first is police making appropriate use of diversion options, and the second is timely and appropriate access to effective diversification options, notably a continuum of effective community-based services and supports.
Diversion requires police to make judgments about an individual’s health and social needs. Achieving the overall objectives of the bill related to reducing inequality requires that these judgments be made equitably and consistently. However, evidence indicates that the likelihood of drug-possession charges is impacted by jurisdiction and by race. I’m glad to see that clause 10.2 notes that the referral to services must take place with the individual’s consent. However, that consent is being requested by a police officer, and criminal charges are the possible alternative. Those are circumstances that are particularly coercive for populations over-represented in the justice system.
Requiring that police officers shall consider alternatives is clear and directive. However, failure to consider alternatives does not invalidate further charges in the following clause, which reduces that onus. Requiring documented justification for proceeding with criminal prosecution would better align with the declaration of principles.
Diversion also carries risks from a health and treatment system perspective. Not everyone who uses drugs needs treatment. In fact, most do not. Providing a needed treatment is costly and burdensome to an already stressed health care system. Diversion can also have a negative impact on employment, education and relationships due to the time required for participation in a treatment program and due to the stigma that substance use and treatment still carry. There’s also considerable variation in the programs and services available to those who receive a diversion option. Timely access to evidence-based service remains a significant challenge, particularly for those outside urban centres. Requiring individuals to access services that are not available or are inappropriate for their needs is, quite simply, setting people up to fail. Inconsistent access to services can also increase rather than reduce cultural and racial inequity. Access to culturally appropriate services is a gap in many systems across Canada.
I’d like to close with steps that can be taken to support the bill and achieve its intended impacts if it is implemented as written.
Provide police with training, protocols and policies that clearly communicate the objectives of the bill to promote its consistent, appropriate and equitable application.
Promote understanding of substance use as a health and social issue to reduce the associated stigma.
Implement timely and transparent collection of data on trends and the characteristics of individuals that receive no further action or referral to services or criminal charges in order to monitor for net widening and equity. Also note that these data do not require individual identifying information, but they do require consistent reporting. Meaningful and respectful indicators should be developed with representatives from the communities impacted.
Provide accurate information about the full spectrum of programs and services available in community and the mechanism to support individuals in making informed choices.
Finally, invest in an integrated continuum of evidence-based community health and social services that address the gaps in access and availability of culturally appropriate services and supports across Canada and particularly in rural and remote communities.
Thank you, and I will be happy to address your questions.
Madeleine Redfern, Chair, Legal Services Board of Nunavut; President of Nunavut Inuit Women’s Association: Thank you so much. I am coming to you from Six Nations. I am usually based in Iqaluit, the capital of Nunavut, and I come to you as the Chair of the Legal Services Board of Nunavut, which provides legal aid to Nunavummiut. I am also the President of the Nunavut Inuit Women’s Association.
The Legal Services Board of Nunavut, or LSB, is the territorial Legal Aid plan. We provide representation for individuals accused in criminal matters, family law, as well as limited civil matters. Eighty-five per cent of our territory is Inuit and LSB provides representation to approximately 99% of clients in criminal cases, of which about 97% are Inuit.
I also want to briefly remind the Senate committee that Nunavut is a settled, modern-day treaty. We have the Nunavut Land Claims Agreement. The territory was created as a result of that political intervention. A particular important provision is article 32, which actually is constitutionally protected. It gives Inuit the right and the opportunity to influence policies and programs that impact them. The federal government is a party to that agreement, and I don’t believe there has been significant or appropriate consultation on any of this legislation as to its implementation or its impact on our people.
There is, rightly so, an expectation that our justice policy and systems in Nunavut can and should feel different, as it does in Quebec, Alberta or British Columbia. And yet, we see too often that the majority of people operating in the court system are non-Inuit from the RCMP officers to the Crown prosecutors to the judges.
The Nunavummiut Inuit, in particular, have an expectation that our principles, values and priorities are something that can and should be influencing not only how justice is meted in our communities. Having been part of the board since 2008, the vast majority of our Inuit board and community members want to see more matters diverted to the restorative and community justice programs. The contribution agreement, or the contract that the Government of Nunavut has with the RCMP, laid out the criteria in which matters can and should be diverted. However, in my experience, in the number of times I’ve met with the restorative justice community coordinator, matters are not being deferred despite meeting their criteria. There is a perception that this is likely due to the biases of not only the individuals in those systems or with those entities and that the court system is the appropriate body.
We’re seeing 11-year-olds being hauled before the courts, which often take two or three years for stealing a chocolate bar, or a mother who is struggling — living in poverty, food insecurity, who can’t afford Pampers — and has shoplifted basic necessities is again before the court, instead of actually being diverted into the community and restorative justice program.
We’re slammed with the amount of work our Legal Aid lawyers have to do. I met with our criminal practice late last night and asked why matters are not being diverted when the criteria are met, and his response was that the Crown does not want to individually divert matters. We need to be looking at a systemic review and recognizing that systemic racism is real, it affects people on a daily basis and it also affects the volume of matters that go before our court. It is not the appropriate way in which matters where criteria are met, should be referred to the restorative justice matter. At the end of the day, we’re seeing longer sentences or incarceration also based on systemic discrimination. Gladue is not adequately addressing that either. Thank you.
The Deputy Chair: Mr. Beaudin, we’ll try one more time to have contact with you. If the audio is not good, we’ll try to fix communication this week and invite you next week. We will try.
Mr. Beaudin: Before I begin, I want to acknowledge the traditional and unceded territory of the Cree and Métis, Treaty 6 in Saskatchewan, where I’m speaking from. I’d like to acknowledge the Algonquin in the capital region as well.
My name is Kim Beaudin. I’m the National Vice-Chief of the Congress of Aboriginal Peoples. For over 50 years, our organization has advocated for the rights and interests of non-status, status, off-reserve, Métis and southern Inuit peoples in Canada. Justice issues have always been in the forefront for advocacy for the Congress of Aboriginal Peoples.
For Indigenous peoples, Canada has provided very little justice and our high rates of incarceration that we are witness to today. Take a look federally, for example, 32%, and as high in some provinces as 85%. This issue has been made worse by mandatory minimums. Mandatory minimums do not allow for any judicial flexibility or discretion and do not allow judges to consider the circumstances surrounding the offences. This has often led to unjust and cruel sentences for the most vulnerable who are suffering historical traumas from residential schools and colonial policies, such as the Sixties Scoop as well.
The resulting addictions, poverty, mental health issues and other conditions are never considered. Mandatory minimums take away the judge’s ability to consider systemic factors such as impacts of colonialism when sentencing Indigenous people, and is in conflict with the Supreme Court of Canada’s direction R. v. Gladue. While Bill C-5 proposes to repeal some mandatory minimum sentences under the Criminal Code, it leaves behind too many that are disproportionately affecting Indigenous people.
There is an urgent need for fairness in our system, and judicial discretion needs to be applied by sentencing judges. Repealing mandatory minimums provides sentencing judges with the ability to impose just penalties. Provincial courts throughout Canada already declared the mandatory minimum penalties remaining on the books unconstitutional. It will be important for governments to consider this fact when planning changes to the legislation. Further to this, mandatory minimums are toughest on already marginalized and victimized people, particularly Indigenous people. Systemic barriers to justice mean that Indigenous women are most significantly impacted by life sentences and similar.
We also support the expansion of conditional sentences, and those sentences will help to address some of the anti-Indigenous racism in the justice system. However, while conditional sentences are alternatives to our incarceration for Indigenous peoples, many times they ignore the reality of colonialism and related trauma; all too often they create more criminalization and a revolving door to prison. Conditional sentences for Indigenous peoples need to correctly consider the realities to avoid this happening. This consideration should be included in related legislation.
With respect to 2015, the TRC introduced a report, the Truth and Reconciliation Report. This is the book here. Under Calls to Action 32, we call upon the federal government to amend the Criminal Code to allow trial judges giving reasons to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.
In closing, we strongly recommend the total abolishment of mandatory minimums for all crimes. Mandatory minimum penalties remaining on the books is unconstitutional. We believe there needs to be culturally appropriate, effective and informed oversight of police discretion in support of diversion, in order to ensure these types of interventions are unbiased and non-discriminatory. Diversion programs are part of the process. They need to be available in all areas and fully resourced to ensure their availability and sustainability.
Expungement should be automatic for simple drug possession and other low-level offences and should be retroactive to ensure no one is left behind. The current cost of obtaining a criminal record suspension is prohibitive and should be cost free. The introduction of the bill introduces that systemic racism does exist in Canada’s legal system, and sentencing policies have disproportionately affected our community. It’s an important step towards reconciliation between Indigenous people and the justice system, but only if the legislation goes far enough to create meaningful change.
It was introduced — this — not in a case that we ask you to go further on the bill to ensure this could happen.
I thank you for your time, and I welcome questions you may have.
Senator Dalphond: First, I want to thank all the witnesses again. It’s very interesting and certainly brings a lot of comments that are very relevant to our thinking about the bill.
I have two questions for Ms. Redfern. I’ll ask both questions, and please answer in the order you want. I remind you that you will have about three minutes to answer.
First, do you think that the system of warnings and referrals about drug possession provided in Bill C-5, especially imposing limits on prosecution, will be an effective way forward, or that, based on the experience you described, they will be something else that will remain nice on the book but not in practice?
The second question is about the safety valve that has been recommended by some. Do you think that the safety valve in the context of the discriminatory systems you have described concerning the judicial systems, especially the RCMP, the Crown and all these people being more from the south than being attuned to the reality of the North, will be effective if it were to be added to the bill? Thank you.
Ms. Redfern: Thank you.
I have concerns about matters for 20-plus years not being diverted. If it’s not mandatory diversion, because the criteria are met with exceptions for matters that can and should go before the court, I just don’t believe matters are going to go to the restorative community justice. Part of the problem is that, at least in Nunavut, we have such a high transient population. A lot of RCMP members, lawyers and judges — I’m sure they are decent, lovely people, but the system somehow imposes an attitude and an approach that “this is the right way of doing it.” There is little or no cultural sensitivity training or appreciation of people’s priorities or values.
There’s just a history of mistrust on both sides, and it is such a huge, tremendous factor.
On the other question about the safety valve, again, my concern is about who designs the valve. How does it work in practice? How are people held accountable when the system fails? Time and time again, at least in my jurisdiction, the impacts and the harms are felt not only by the accused who is in front of the court.
It is important to understand that, more often, the victims of the accused are family members, close friends or community members, so we’re all impacted and affected. The vast majority of crimes have happened related to poverty, low education rates, lack of opportunities, mental health issues and addictions, and those support services don’t exist. So the safety valve actually needs to be significantly more robust support to actually help people so they don’t get into problems with the law, and when they do get into problems with the law, that there’s much more sort of restorative support to help with those issues.
These are our brothers, fathers and uncles. We are small communities. It’s not usually unknown, random violence that is being perpetrated by the accused on victims they’re not related to. We want a different type of safety valve.
Senator LaBoucane-Benson: My question is also for Ms. Redfern.
Some of the goals the bill are to give people opportunities to serve their sentence either at home as a conditional sentence order or by giving judges discretion to keep people in their provincial or territorial institution. I think that’s of particular importance to Nunavut.
What might be some of the practical implications of transferring someone to a federal institution down south, far from their community, and how can this bill help address that?
Ms. Redfern: There are two matters. One is that we have no federal institution in Nunavut, so anyone who is convicted for two years plus a day is forced to leave the territory and is separated from their family, community, culture and support systems. Also, they’re generally not eligible for early release for good behaviour, because there aren’t systemic support systems to allow them to come home. So they usually miss six opportunities, and the cultural programming that is often available in the institutions in the south is primarily First Nations-driven or focused. There’s been a tremendous amount of evidence that has shown that in order for a person to be successfully rehabilitated, there is the importance of maintaining those connections with their family, community and culture.
With respect to incarceration at home, that poses a particular challenge in Nunavut where we’ve got significantly overcrowded housing. Often, the victim of the accused is living in the home. There is also the lack of all these systemic support systems that are needed, from counselling of addictions and mental health issues. When you’re dealing with 12 to 16 people living in a two- or three-bedroom house, and you’re in poverty and food insecure — those are the driving factors and forces that lead to people living in a situation where conflicts and violence occur.
It’s not easy to just say incarcerate them or do home sentences. Actually, I’m a big supporter that we actually need a federal institution in Nunavut.
I hope that answers your questions.
Senator LaBoucane-Benson: Thank you.
Senator Pate: My question will be for all the witnesses, but I will start with Ms. Redfern and Chief Beaudin.
This bill is characterized as being aimed at reducing over-incarceration of Indigenous and Black people. We know that Indigenous women are now 50% of the federal prison population; that’s higher in provincial and territorial, as you’ve outlined.
Your organization has represented a number of women who have been charged with murder in relation to the deaths of abusive partners. Most recently was Ms. Sandra Ameralik. My understanding is that right up until the point of finalizing the case, the Crown did not withdraw the murder charge and replace it with a manslaughter charge as Justice — was recommending happens when she did the self-defence review of these sorts of cases. Instead, right up until the end, the Crown was encouraging counsel and Ms. Ameralik to plead guilty to manslaughter in exchange for a sentence, which then hides the fact that mandatory minimums are actually driving a lot of this incarceration.
How would you each feel — and, certainly, Chief Beaudin, you’re familiar with some of these cases as well in terms of Indigenous women in the south — about a structured discretion to allow judges, in the cases of mandatory minimum penalties not repealed, to use their discretion to allow for other kinds of sentencing?
Ms. Redfern: Thank you, Senator Pate.
Without a doubt, we’re seeing women who have acted in self-defence and have killed their spouses or intimate partners because of battered woman syndrome — that defence is dismissed by the police or the Crown. They fail to understand or appreciate that, often by the time this event has actually taken place, a woman has lived in fear and has been significantly subjected to harm, with no supports for herself and her family.
We have so few shelters in this territory, and the shelters we do have often are full, and so it just simply doesn’t understand or fails to appreciate the reality. It is distressing and disturbing that systemic racism has this sort of exaggerated impact especially on the victims, who are more often than not women but children. I would be concerned about the fact that there really isn’t a chance or opportunity to hold the system accountable when that discrimination is happening on an individual case-by-case basis, but then you’re looking at a tremendous number of women being put at further risk. It’s harm at home and harm in the courts. Two negatives don’t correct a wrong.
Discretion is incredibly important, but we need to recognize that discretion can lean towards righting wrongs, or that discretion can be used to cause more harm. I would even recommend significantly more cultural orientation that is mandatory. There needs to be maybe an ombudsman office where these matters can be reviewed when discretion is not being applied appropriately.
Senator Cotter: Thank you to each of the witnesses for their presentations and thoughtful answers, particularly Mr. Beaudin who hung in there to have his opportunity to speak with us.
My question is mainly for Ms. Jesseman and, if you would be inclined to comment, Ms. Redfern. In the legislation regarding diversion, we observed that there are proposals related to expectations of prosecutors and expectations related to police officers. I think it’s fair to say that the police officer provision is soft, at least softer than it is compared to what’s expected of prosecutors. I’m going to invite you to comment on that.
In the context of evidence that we have seen, or at least has been available to us, that shows that for simple possession cases — and that’s really why I wanted to start with you — the vast majority of charges for simple possession are withdrawn or stayed by prosecutors. Numbers ranging in the area of 80%. What strikes me as a concern, maybe at the very front end, is that we would manage the system much better if some of those charges never got laid in the first place. In the context of your observation, Ms. Redfern, it would solve a lot of the problems that you describe as problematic exercise of prosecutor discretion, at least in this context where this bill is situated. Could each of you comment on that?
Ms. Jesseman: I’d like to humbly acknowledge that I am joining you today from the traditional lands of the Mi’kmaq people that have been so recently devastated by Hurricane Fiona, and I feel for the care and concern that everybody has for those lands.
In response to your question, senator, I do agree that the direction that is provided to police officers is, as you say, softer than that provided to prosecutors. We have certainly seen the federal prosecutorial directive greatly reducing, even further than is already the case, the number of possessions going through the courts. The advantage that Bill C-5 has is enshrining that in legislation rather than a directive that could be repealed, but we certainly do feel that the direction to police officers in terms of providing some accountability when discretion is not exercised would strengthen the bill.
Senator Cotter: Thanks.
Ms. Redfern: I would actually challenge and disagree that 80% of simple drug possession charges are dismissed by police in Nunavut. We see that the RCMP members here see that as an opportunity. Drug busts, no matter what size, including simple ones, is an opportunity for them to advance their careers, which ultimately leads to promotions and clogs up the courts. Unfortunately, there really isn’t that same mindset that we’ve seen in Ontario, British Columbia or other places where simple drug possession charges are actually dismissed. So they do proceed through our court system, and very punitively, irrespective of the fact that we’re talking about simple drug possession charges maybe due to a coping mechanism, self-medication, a way of managing or feeding their drug habits or dealing with mental health issues. There is no perception or care about the realities of the individuals and the reasons why they’re in that situation.
Mr. Beaudin: Our legal system across this country is completely underfunded, under-resourced and completely tied up with respect to a number of these issues. When I look at the whole system, the main objective of, for example, the Crown, when it doesn’t matter what province you’re from, is to get a conviction, to cut deals and plea deals and that kind of thing. That really does a disservice to our people, people of colour, Indigenous people and minorities. This has been going on for years. I wanted to make that comment and be heard on that one. Thank you.
Senator Simons: My question is for Ms. Redfern. We’ve talked a lot in our discussions of Bill C-5, about discretion of the police, the discretion of prosecutors, or potentially the discretion of judges to have more power or flexibility not to impose mandatory minimums. I think your story reminds us that giant systems that serve 35 or 40 million people, when there’s discretion, there’s a sort of regression to the mean. If you get a small and isolated community, it only takes one prosecutor, one head of police or one judge to skew the system. Your story has really appalled me, and I’m wondering what percentage of police, prosecutors, members of the judiciary serving your community are themselves Inuk or Indigenous. What is required to reset the culture of prosecution in your community, which is not a large community?
Ms. Redfern: We’ve never had any Inuit or Indigenous judges in Nunavut throughout our history. I would hope that would change some day in the near future. We’ve had two law programs delivered in our territory, Akitsiraq, which is delivered with University of Victoria, of which I’m a graduate. A second Nunavut law program just completed recently with almost 22 graduates in the process of completing their articles and call to the bar, but even they have suffered systemic discrimination, as did the first cohort.
Very few RCMP officers are Inuit, the vast majority are not. They’re struggling to retain any of the Inuit constables that they’ve had in the past, let alone recruit new ones. The Crown’s office, I believe, has one Inuk Crown prosecutor and a couple of articling students from the law program, which may or may not choose to work for the Crown’s office.
Article 23 requires proportional representation of Inuit in all government workforce, and the only way to increase the number of Inuit lawyers is these programs. We’ve had one from 2000 to 2005 and the second one from 2018 to about 2021. We should have cohorts start the instant the next one finishes.
It is a huge problem and a challenge. It’s not because Inuit aren’t smart enough to attend law school. There were 115 Inuit who applied for the Akitsiraq law program, and I’m sure there were an equal number of applications for the Nunavut law program. The desire to get into the legal career is absolutely there, but as I said, I was shocked at some of the systemic barriers that were placed on these students recently, even by our own law society.
We’ve got to recognize that a whole systemic review and probably a bit of an overhaul is required. It’s shocking that, after almost 25 years of the creation of our territory, the opportunity to change justice in Nunavut has not happened. We have the second-highest crime rate in the country, and we’re number 1 for the most violent crime. The community justice committees have not been empowered. It’s going to take some hard work to look at ourselves in the mirror and to realize that the system is not just and is causing more harm than good in our communities.
Senator Simons: I want to thank you for your testimony today, which has been eye opening for me, and I suspect for other members too.
Senator Batters: Thank you to all of our witnesses. My first question is to National Vice-Chief Beaudin. Please correct me if I’m not saying that right, but I believe that’s correct. It’s nice to see you here from Saskatchewan.
Canada is experiencing an ongoing health crisis of opioid overdoses and deaths. Recent figures have shown that Indigenous peoples are disproportionately affected. Is access to treatment programs readily available for Indigenous offenders in prisons, penitentiaries and the community?
Mr. Beaudin: I can honestly tell you that prisons are not treatment centres and they should never be treatment centres. There’s a huge lack of treatment centres, addiction facilities across this country. I believe it would make a big difference.
Also, with respect to the healing lodges, we’ve capped out. Why, I’m not sure. I understand that a number of applications have been put forward to Correctional Service Canada, but they’ve been denied for whatever reasons. That is a huge issue that we need to address in this country. Look no further than what’s going on in British Columbia, in East Hastings, for example, in Vancouver. That’s one huge example. If you’re on or off reserve, it’s affecting our people, period. We need to do something about it.
Senator Batters: Thank you. To you, National Vice-Chief Beaudin, what support will the government provide to offenders in remote areas to access programs? Is that a further complicating factor here?
Mr. Beaudin: That’s definitely a further complicating factor. A comment was made from one of your presenters before in reference to community supports. Our people are being placed in other communities where they don’t reside. In other words, if you’re from Saskatchewan, you could end up in Nova Scotia, for example; or, in Ontario. Our people believe that the system itself is actually doing that on purpose to isolate them from their families and from their supports. That should not be happening. That’s a very good question.
Senator Batters: Ms. Jesseman, what diversion programs are in effect in Canada? Are there statistical data that shows their effectiveness in supporting offenders and decreasing offending? If so, what are the trends on that?
Ms. Jesseman: I can speak to some of the programs I’m aware of. I can’t give you a comprehensive list of them, but I can have colleagues follow up with that.
One I can speak to is Project Angel which is in place in B.C. It is a partnership between police personnel and people with lived experience, where individuals with living experience receive referrals to speak with folks that officers come into contact with, who may be in need of treatment or of other health and social supports, and help them to access those supports in a peer navigator and supporting role.
That is a trend among diversion programs in terms of the challenges that they have experienced. The resources to operate and to provide sufficient supports not only to the police staff that are operating them — and that requires training as well as resources to operate and function properly — but also to programs that are relying on peers need to support those peers and those people without a lived experience. They do rely on community programs — not only drug treatment programs but also health and social supports that meet the complex health and social needs that people might bring to the program. Those programs are often not in place. That is the case, even in urban centres, and more acutely so in more rural and remote centres.
I will leave it there. Thank you.
Senator Cordy: Your testimony has been very helpful.
Mr. Beaudin you spoke in your comments about criminal record expungement and the importance to break the cycle of Indigenous incarceration. It seems, from your comments and from what I’ve read aside from that, that expungement is necessary to provide protection of Indigenous peoples from discrimination. However, is the cost of obtaining a criminal record expungement beyond the reach of many Indigenous people in your region? If so, does this lack of financing to get the expungement result in greater hardship and greater punishment for those unable to pay the cost to have their record expunged?
Mr. Beaudin: Certainly, it does affect our people. It has long-term effects as well. For example, if you’re applying for jobs, your criminal record might be on there. It’s the same if you might want to rent a home or an apartment. It seems to be a lot of entry-level things. It even affects your credit rating. These are things we need to address.
The costs have gone up significantly, and they were brought in three, or four, or ten years ago. That’s one thing we could address. Canada could do that, and it would be a very positive step forward.
Senator Cordy: My next question was for Ms. Redfern.
I was fortunate on Monday to take part in the Indigenous Committee. The witnesses were a number of Indigenous youth who provided compelling testimony. One of the things they frequently mentioned was intersectionality. They included such things as the Sixties Scoop, colonization, intergenerational trauma and poverty. Often, this intersectionality is not taken into account when someone is within the legal system. They were Indigenous youth, so they spoke about Indigenous communities and other marginalized communities.
What effect would mandatory minimums have on the Indigenous communities, particularly in terms of family and culture?
Ms. Redfern: The problem with the imposition of mandatory minimums is that it takes the discretion away from the court and the judges to recognize all these different historical or current factors that cause people to get into trouble with the law.
Depending on what sort of stats you’re looking at, when you’re talking about 8 out of 10 Nunavut Inuit preschool children are food insecure — and almost every Inuk household has Inuit children in it — that speaks to the reality. There’s overcrowded housing; we don’t have schools that offer Inuktitut curriculum, from kindergarten to Grade 12 — there are many sorts of factors like that. Colonialism is not a historical thing of the past. It’s something that we very much still live today.
I want to share this quickly. When I visited Pond Inlet a few years ago and some narwhales were trapped in the ice, I was staying at an RCMP member’s house because of a B & B situation. He knew my interest in what was happening in our communities. He said, “Madeleine, the crime rate dropped significantly that whole month in which people had whales in which to be able to eat muktuk.”
The Deputy Chair: Please conclude.
Ms. Redfern: It demonstrates all these factors that southern judges, southern prosecutors and RCMP members generally don’t understand, namely, the inherent factors of why people get into trouble with the law and the need to take that into consideration in sentencing.
Senator Clement: I have a question for Ms. Jesseman, but I want to say first to Ms. Redfern and Mr. Beaudin, thank you for speaking so eloquently about colonialism, systemic racism, poverty, and mistrust. I think those are very powerful statements coming from you. Thank you for your work.
Ms. Jesseman, I see from your work that you are very evidence-driven in terms of what you do, and I wonder if you could identify where the data gaps are, in terms of mandatory minimums and Bill C-5 generally. I worry about data and how little of it we have in some of these spaces. Could you comment on that?
Ms. Jesseman: Certainly, most of my expertise is around the data gaps in the treatment system, so that will be more of my focus. We, as a country, have not done a good job collecting data about the substance use services and supports that are available to people in Canada. Unfortunately, we don’t have good demographic data about who is accessing those services, the outcomes of the treatment services, and that means that we, unfortunately, almost don’t know what we don’t know in terms of where the gaps are in terms of service delivery, because we don’t collect, for example, race and cultural data. There are gaps in what we know about how many services are available that are well suited to Indigenous populations, Black populations, and other cultures. On a whole, we have gaps in what we know about the services and supports for substance use.
I’ll just quickly note in terms of a data gap about the application of diversion. We have done some looking, particularly in the context of cannabis, the laying of charges for cultural minorities and found that there is very sparse data collected and that challenge us in terms of measuring the equity of the application of these laws, and that is part of the reason why we suggested that trend level aggregate data be collected that includes demographics and cultural and racial data, so that we can monitor the equity impacts of the legislation.
[Translation]
Senator Dupuis: I have a question for the President of the Legal Services Board of Nunavut. Ms. Redfern, I believe you said that you had not been consulted. Could you tell us if you were consulted on the development of Bill C-5? You referred to Section 32 of the Nunavut Land Claims Agreement and to the creation of Nunavut.
[English]
Ms. Redfern: I can confirm that the Legal Services Board of Nunavut was not consulted, nor was the Amautiit Nunavut Inuit Women’s Association, and I suspect that others in our justice system were not, even though there is that obligation for consultation.
[Translation]
Senator Dupuis: Ms. Jesseman, you spoke of a subject in particular, and I find it interesting that you brought it up. In applying the proposed diversion, which would fall to police officers, among others, you spoke of the need for training. Could you elaborate on that? I think it’s an extremely important point. There seems to be an assumption that we will amend the Act and that everything will be applied very nicely, with neither preparation nor training. Could you elaborate on what you think this training should look like?
[English]
Ms. Jesseman: I would be happy to. Fundamentally, we need to increase the recognition of substance use as a health and social issue. I can speak to programming that has been done in partnership with the CCSA, with an organization called CAPSA and Public Safety Canada, on providing police officers with a better understanding of that distinction.
In terms of training specific to the legislation and application of diversion, we’re effectively putting police officers in the position to make the call as to whether an individual is appropriate for diversion two treatments. Again, it does note consent, but that rests on the ability of the police officer to have an idea of what programs are available in a community, so there’s training about general knowledge of available services, and supports that might be available, how to distinguish when referral to service might be appropriate. Again, we want to be careful we’re not net widening, and not just from a criminal justice perspective but from a treatment perspective, that we’re not placing undue demands on the treatment system, and not referring people to treatment who won’t need it and won’t benefit from it, and can experience harms from being referred inappropriately to treatment. It’s that kind of training, general awareness and education, and also understanding the principles of the legislation, so that it’s implemented as intended as opposed to being an optional add on.
[Translation]
Senator Dupuis: Ms. Jesseman, do you think this training should have a component focusing on human rights, that is, on the whole issue of discrimination, perception and potential biases? Should that be part of the training?
[English]
Ms. Jesseman: Absolutely, and the training needs to focus on the objectives and principles of the legislation, and again, the stated objective of Bill C-5 as a whole is to reduce over-representation and therefore increase equity. I think that really needs to be a key message that is delivered in any training.
[Translation]
Senator Dupuis: Thank you.
The Deputy Chair: I will end with a question for Mr. Beaudin. In his testimony, Darren Montour, the chief of police of the Six Nations Police Service, had this to say:
The proposed conditional sentences for violent offences will not deter offenders from committing further crimes. We are not in a position to continuously monitor sentenced offenders to ensure their compliance with the conditional sentence restrictions handed down by the courts.
Police officers themselves say that they will not be able to monitor offenders who receive conditional sentences. When we know the proximity, in the communities, between the aggressors and the victims, don’t you think this situation might be conducive to repeat offences by aggressors, particularly with respect to domestic violence?
[English]
Mr. Beaudin: I’m not sure. Based on my understanding and experience in the judicial system, and also my experience with respect to the police, I think they do a great job of following up on people and with respect to bail conditions, for example. I’m fully aware. They do have the resources. We sink almost $20 billion in police services across this country per year, so to me, that would be a lot better than the police to play that role, with respect to following up, for example, on community service orders than incarcerating our people across this country. So, yes, I have a role. I find that a strange response from people who would say that. That’s kind of where I’m at.
[Translation]
The Deputy Chair: I thank our three witnesses. Thank you, honourable senators, for your excellent questions, and see you next week. Have a good weekend.
(The committee adjourned.)