THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, October 6, 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 Mobina S. B. Jaffer (Chair) in the chair.
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The Chair: I am Senator Mobina Jaffer from British Columbia, and I have the pleasure of chairing this committee.
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I will now ask the members of the committee to introduce themselves.
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Senator Arnot: My name is David Arnot from Saskatchewan. I’m substituting today for Senator Brent Cotter.
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Senator Dupuis: I am Renée Dupuis from Quebec, representing the senatorial division of The Laurentides, and I belong to the Independent Senators Group.
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Senator Pate: Kim Pate. I come from here, the shores of the Kichesippi, the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
Senator Klyne: Good morning and welcome. I am Senator Marty Klyne from Saskatchewan, Treaty 4 territory.
Senator Oh: Good morning. I am Senator Victor Oh from Ontario.
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Senator Gold: Good morning. I am Senator Marc Gold from Quebec, and I am the Government Representative in the Senate.
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Senator Simons: Senator Paula Simons from Alberta, Treaty 6 territory.
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Senator Dalphond: I am Pierre Dalphond, a senator from Quebec.
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The Chair: Today, we continue our study of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.
This morning we have, from the Council of Canadian Academies, Kent Roach, Expert Panel on Policing in Indigenous Communities — he is no stranger to our committee, so welcome again — and Jérôme Marty, Project Director; and from the John Howard Society of Canada, Catherine Latimer. Ms. Latimer, it’s always a pleasure to have you on our committee as well.
We will start with you, Mr. Roach. You have five minutes.
Kent Roach, Expert Panel on Policing in Indigenous Communities, Council of Canadian Academies: Thank you very much, Senator Jaffer. I believe my colleague, Mr. Marty, will start and take one minute.
Jérôme Marty, Project Director, Council of Canadian Academies: Honourable Chair, deputy chair, members of the Standing Senate Committee on Legal and Constitutional Affairs, thank you for having us this morning.
My name is Jérôme Marty. I’m a project director at the Council of Canadian Academies, the CCA, where I supported the Expert Panel on Indigenous Policing, Toward Peace, Harmony, and Well-Being: Policing in Indigenous Communities. This report, sponsored by Public Safety Canada, was published in 2019 and involved a multidisciplinary panel of 10 experts, chaired by Kimberly Murray, who recently was appointed as the Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites.
I am joined today by Kent Roach, Professor of Law and Wilson-Prichard Chair in Law and Public Policy at the University of Toronto Faculty of Law. Professor Roach was on the expert panel for Indigenous policing report at the CCA, as well as a previous report looking at policing in the 21st century.
The CCA would be pleased to provide you with more information about these two reports and copies of the reports, if you would like.
I will turn to Professor Roach, who will provide further remarks in relation to the proposed amendments to Bill C-5. Thank you very much.
Mr. Roach: Thank you very much, senators. My comments will be made in my personal capacity. They don’t necessarily represent the views of the CCA or other members of our expert group. That being said, our work was informed by the insight that the present criminal justice system is failing Indigenous people. That failure includes all mandatory minimum sentences, which are an injustice waiting to happen.
Why an injustice waiting to happen? Simply because Parliament cannot see who they are sentencing when any mandatory sentence is imposed. Mandatory sentences will apply to the most sympathetic of cases and in cases where the culpability of the offender is most attenuated. This is the lesson that the Supreme Court and other courts have set in an avalanche of decisions striking down mandatory sentences as cruel and unusual.
Eight years ago, in the Lloyd case, Chief Justice McLachlin suggested a simple solution. To my knowledge, it was first proposed a quarter of a century ago by Justice Lynn Ratushny in her self-defence review, and it was again echoed in 2015 by the Truth and Reconciliation Commission: Simply allow trial judges, when they deem it necessary, to depart from any mandatory sentence and justify the sentence they impose, subject to appeal.
This bill, unfortunately, does not adopt this elegant and simple solution. It deserves credit and support for eliminating some mandatory sentences, but it only does so on a limited offence-by-offence basis that mirrors the unnecessary litigation that will continue, even if this bill is enacted, challenging each and every mandatory sentence.
The Supreme Court’s recent decision in Bissonnette, in my view, cannot be reconciled easily with its previous decisions in Luxton and Latimer upholding mandatory life imprisonment for murder. If mandatory sentences are unconstitutional for our most serious crime, then surely they are unconstitutional for all crimes.
I would add that the bill should be applauded for encouraging diversion from court. Unnecessary court cases, especially with respect to Indigenous people, contribute to justice system failures that produce a vicious circle of over-policing and under-protection of Indigenous people. But the bill’s reliance on police orders deciding to give cautions should, in my view, be accompanied by something like the direction in Bill C-75 with respect to bail, to have regard to Indigenous and other groups that are over-represented in the justice system and disadvantaged with respect to receiving the benefits of diversion.
I proposed similar amendments to Bill C-75 with respect to the selection of jurors. They were not made, and I note that without that guidance, the courts have so far nullified that new provision. I would suggest that you would also look to the Bill C-75 provisions concerning bail and arrest.
Thank you very much for your attention.
The Chair: Thank you.
Catherine Latimer, Executive Director, John Howard Society of Canada: It’s always a pleasure to be here, and I’m so grateful you’re interested in the John Howard Society’s views on Bill C-5. The John Howard Society’s views have been eloquently stated by Kent Roach, but I will reiterate those to some extent.
The most significant thing for us in this bill is that it does touch on mandatory minimum penalties. The John Howard Society of Canada opposes all mandatory minimum penalties as unjust, ineffective and inhumane. They’re unjust because they’re always unfair when the proportionate and fair sentence in the circumstances is less than the mandatory minimum. They’re ineffective in that they do not reduce crime. We have gone through probably a decade of seeing mandatory minimum penalties as the answer to crime issues, and I think the Department of Justice’s own studies have indicated that that has not resulted. Furthermore, they’re ineffective in that where a mandatory minimum penalty is imposed, it often precludes access to other sentencing options, like conditional sentences, which might be much more effective in the circumstances. We see them as inhumane, and I think the courts reflect this, as they’re striking them down as being disproportionate and harsh and cruel as excessive penalties. Bill C-5 would eliminate some but not all.
We strongly support judicial discretion to impose less than the mandatory minimum penalties when needed to achieve a fair and proportionate sentence. With that view, we join many of the other witnesses and experts, including Kent Roach whom you have heard today, recommending an amendment to this bill that would provide judicial discretion, where some have described it as a safety valve against the injustices that inevitably flow from mandatory minimum penalties. This is a huge opportunity to promote justice, and the John Howard Society urges you to act.
We are very supportive of the cautions, warnings and referrals that are mentioned in this bill. Anything that provides access to fair and proportionate ways of discharging accountability outside of the criminal justice system is laudable and will reduce the flow of people into the system. Too often, the police are called when it’s a mental health or substance abuse issue, hoping that the police would actually provide help that is needed. Too often, this results in the criminalization of the person and leads to further and more serious involvement in the criminal justice system and the long-term discrimination of having a criminal record. The Bill C-5 provisions allow for individuals with substance abuse issues to be referred to community programs where real assistance may be available. I should note that not all those charged with drug offences have substance abuse problems needing treatment, but the programs in the community could be tailored to the individual’s needs.
These measures entrust police officers with important discretion and, as those provisions in the Youth Criminal Justice Act have shown, lead to fewer people coming into the criminal justice system for less serious offences. To ensure that they are achieving the policy objectives of reducing racial inequalities in the use of discretion, a significant investment to ensure that alternatives are available in under-resourced communities would be needed. It would also be important to track which races and genders are benefiting from this important discretion.
In sum, we note that Minister Lametti has indicated that these provisions will reduce the over-representation of Indigenous and Blacks in the criminal justice system. We hope that is correct but believe that that is a very small step in combating a significant challenge and that much more needs to be done.
In conclusion, we support the general direction of Bill C-5, but we would urge this committee to amend the bill to provide judicial discretion to impose other than the mandatory penalty to achieve a fit and proportionate sentence. We would like there to be a requirement that data be collected to assess whether the provisions are having the desired effect of reducing racial inequalities, and we support the broadening of the application of the warnings, cautions and referrals and conditional sentencing provisions to cover a broader set of challenges.
Thank you very much. I look forward to questions.
The Chair: Thank you very much, Ms. Latimer.
Ms. Latimer, this is our sixth committee meeting, and they are two hours each. I have a question for you not so much on the law. You see the most vulnerable people every day in your life. Can you give an example of who this will help, as much as I can ask? I am not looking for a name or anything, but a human face. What difference will this law and what you asked for make to the person?
Ms. Latimer: If there was the ability to impose something less than the mandatory minimum, you would be helping out a lot of people with cognitive difficulties who did not fully understand the nature and consequences of their behaviour or people who were only peripherally or tangentially involved in the criminal act. For example, when the court’s eliminated some of the mandatory minimums for guns, the person was simply holding the weapon and taking pictures of himself with it. There was no intention, really, to use the weapon in any nefarious way. The mandatory minimum penalty of four years would have been extremely excessive in those circumstances. Basically, it would help a whole swathe of people who do not have the same opportunities as the rest of us and may tangentially be involved in something that would otherwise attract a mandatory minimum penalty.
The Chair: Mr. Roach, I saw you nodding. Would you like to add something more?
Mr. Roach: Thank you, Senator Jaffer.
I agree with what Catherine Latimer had said, but I would go way back 25 years to Justice Ratushny’s report where she commented that mandatory life imprisonment forced women who may have a self-defence claim often based on domestic violence that they have suffered from their partner to plead guilty to manslaughter for the good of their children and their families.
Of course, I worked with the Goudge Commission which dealt with the aftermath of Charles Smith, and we saw this false guilty plea problem being extended to cases where I believe five women, all marginalized, many still in their teens, pled guilty to a lesser offence because they felt they couldn’t stomach the downside risk of an automatic life imprisonment sentence that comes with murder. The prosecutor’s offer of manslaughter often came up with a much more lenient sentence. We can’t forget that these five women, as well as three racialized men — Richard Brant, who’s Mohawk; O’Neil Blackett, who is Black; and Dinesh Kumar, who was a recent immigrant from India with a young family who was worried, understandably, about being deported — all pled guilty because, as the late Justice Marc Rosenberg said, they had the hammer of mandatory life imprisonment hanging over their heads.
Now, I understand that people will be nervous about this exception. It doesn’t mean, however, that the mandatory life sentence would go away. It would become a kind of starting point, and it would allow a judge to make a justified departure. If it is not justified, the prosecutor retains rights to appeal the fitness of sentence. If we allow this escape hatch, which is used in other countries and has been recommended, I think, quite strongly by the Supreme Court, it isn’t that we’re allowing everything to be up for grabs. We will proceed in a case-by-case manner, and that’s really the lesson that the courts have been trying to remind Parliament about, which is we see cases case by case. It is no particular fault of Parliament, but you just do not have the institutional capacity to look at a case in all of its complexity. For that reason, I think Canadians shouldn’t be scared of allowing exceptions. They should have faith in trial judges and faith in the appeal process.
The Chair: Thank you, Mr. Roach.
We will now go to the sponsor of the bill, Senator Gold.
Senator Gold: Welcome to the witnesses. Professor Roach, it is especially nice to see you.
Before I begin, how much time do we have all told, questions and answers?
The Chair: Six minutes.
Senator Gold: I’ll be brief in my question.
Professor Roach, the Minister of Justice has made it clear that the government is not prepared to legislate the elimination of all mandatory minimum —
The Chair: By saying six minutes, I have extended your time with this committee. Is that acceptable?
Senator Gold: I don’t want any more time than anyone else.
The Chair: Everybody will get six minutes.
Are you able to stay later, Mr. Roach?
Mr. Roach: Yes.
The Chair: Thank you.
Senator Gold: The minister has made it clear that the government is not prepared to eliminate all mandatory minimum sentences. He has also indicated concern for the state of public opinion on going further than this bill as written. Mr. Roach, if the choice were a stark, unfortunate binary choice between this bill or no bill, what would be your view?
I’d like to hear from Ms. Latimer as well. Let me put my question to Ms. Latimer on the table first, and then you can answer with the remaining time. Ms. Latimer, you’ve spoken positively about the similarity between the section of Bill C-5 that directs police to consider alternatives to criminal charges for drug possession and the section of the Youth Criminal Justice Act that also directs police to consider alternatives. In fact, as we know, the language is nearly identical. Could you share with us a bit from your experience how that section operates in the Youth Criminal Justice Act — how it’s been used by police and, importantly, what effect it’s having?
Thanks to both of you for your answers.
Ms. Latimer: Thank you very much for the question. We were very pleased with the extent to which the police were exercising their discretion and proceeding with alternatives. We had made it as part of the Youth Criminal Justice Act that it was a necessary first step, before they proceeded with charges, that they had to direct their minds to these issues and ought not to proceed with criminal charges if a community-based alternative to the criminal justice system was in any way appropriate.
The other thing that helped with the success of the youth justice system is that a considerable amount of resources and training were invested in ensuring that the police were well aware of the range of discretion they had and that there were some community-based programs available to which they could refer youth who would benefit from them.
I think those two things were important. There was excellent pickup, and a lot fewer young people came into the criminal justice system who didn’t need to be there.
Senator Gold: Thank you. Professor Roach, and then perhaps back to Ms. Latimer, with regard to the stark hypothetical choice that I’m putting on your plate.
Mr. Roach: Much of my answer would depend on how many of these mandatory minimums have already been ruled unconstitutional by the courts. There is always value in Parliament tidying up the Criminal Code.
What I would suggest, Senator Gold, is that I realize the minister has said that, but I would argue that the Bissonnette decision rendered this summer has actually changed circumstances. Although the court seems to think they can reconcile this with Luxton and Latimer, I’m not sure they can, especially when you consider the disturbing information in that decision about the average lifespan of people in our prisons. I think that’s going to generate another tranche of section 12 litigation, and I think that is not in anyone’s interest, if it can be avoided. I don’t know if I’m directly answering it, but I would ask —
Senator Gold: No, you’re not.
Mr. Roach: Parliament does have an obligation, I think, to take into account changed circumstances. Even if the government felt that its decision to limit the abolition of mandatory minimums was justified before Bissonnette, I would like to see at least an additional Charter statement to say why the Department of Justice does not think that Bissonnette changes this.
Senator Gold: Thank you.
Ms. Latimer, on that binary choice of this bill or no bill, what’s your view?
Ms. Latimer: The binary choice is that I would prefer to have the judicial discretion to impose something other than the mandatory minimum than to have a piecemeal approach of removing a few mandatory minimums. As Professor Roach pointed out, the courts have already eliminated a lot of those mandatory minimums, and I’m sure there will be more to come through the judicial process. I think your real opportunity to do justice is to provide an opportunity to ensure that the mandatory minimums are not hurting individuals and denying them of a fair, proportionate and fit sentence. I think an amendment to the bill that allows for judicial discretion would be preferable to this bill.
Senator Gold: Thank you for your answers.
Senator Dalphond: Thank you to the witnesses for being with us this morning.
My first question will be in connection with the diversion measures that are proposed in the bill and in connection with the report produced by the Council of Canadian Academies, Toward Peace, Harmony, and Well-Being: Policing in Indigenous Communities. Do you think these diversion measures are likely to be effective in the current system? If there is over-policing and if there is a disconnect between policing in the First Nations especially, and maybe in some other territories, do you think these measures would be effective? Or will systemic over-policing be a bar to this and RCMP officers will stop people and send them to the criminal track instead of an alternative track?
Mr. Roach: Thank you, senator.
I wouldn’t want to say that all police officers will not use the diversion. You are exactly right that the RCMP does police a lot of Indigenous people. One of the conclusions of the expert panel is that the existing programs are not really working, even when there is an agreement between the First Nation, the province and the federal government to have some special measures with respect to RCMP or Sûreté du Québec or OPP policing in Indigenous communities. We also know that the clearance rate for police in Indigenous communities is actually higher than it is in other communities. Again, this over-policing is a tough nut to crack.
I do think it would be helpful, though, to have as much guidance as possible in the legislation to pay attention to the over-representation of Indigenous people. I think that the Criminal Code has an educational or aspirational point of view.
I also think that the federal spending power with respect to the resources — as you may know, I represented Aboriginal Legal Services many years ago in the Gladue case. Gladue has not worked in terms of stopping Indigenous over-representation, but I think a lot of that falls to the fact that Indigenous communities have not had the stable funding to develop sentencing alternatives, including ones that may include conditional sentences. So the spending power also has to be used.
Perhaps one thing that could be done is to think about the parliamentary review provision in Bill C-5 and be a bit more ambitious about that. I know there are problems of parliamentary capacity in looking at these things. However, my experience with the Council of Canadian Academies — and Dr. Marty may want to talk about this — is that it does, like the Library of Parliament, provide you with another resource. If, as Senator Gold has perhaps suggested, this is an all-or-nothing issue, then you might want to have a more robust examination three or five years hence.
The other concern I have here is that this bill knocks out some mandatories but doesn’t address the maximum penalty. Perhaps the maximum penalty — although it may be rarely imposed — is still having an influence on sentencing. Whether it’s the Council of Canadian Academies or the new Law Commission of Canada, I think parliamentarians should be creative when they say, “We can’t deal with this problem completely, and we are committing to a study of the effectiveness of whatever Band-Aid we are enacting now.”
Senator Dalphond: I guess your fulsome answer is really to say that this will work only if there is substantive improvement in the financing and resources being made available to use the health track instead of the criminal track and if RCMP officers are embracing the changes that are proposed here, including following the proper training?
Mr. Roach: Of course. My views on RCMP training may not be well known, but they’re certainly provocative. I’ve recently written a book where I’ve recommended that the RCMP should abandon the depot model of training in favour of a much more decentralized and modern college of policing that would work with post-secondary institutions. Training is an important part of this.
The Chair: Can you give us the name of the book you’ve written, Mr. Roach?
Mr. Roach: Yes. I don’t want to be seen, Senator Jaffer, as advertising the book.
The Chair: I’m giving you permission now.
Mr. Roach: Thank you. It’s called Canadian Policing: Why and How it Must Change. It came out this year, because, in part, I think we are at a juncture, and I know that other committees of Parliament are looking at this, where we recognize that policing needs to change.
I recently learned from an Anishinaabe elder — I’m sure most senators have heard of the Bear Clan, which is a volunteer group — but I hadn’t known that in Anishinaabe teachings, the Bear Clan are experts in both peacekeeping and in medicine. I find it striking that we’re just finally catching up to a long-held Indigenous wisdom that you need to look at both sides of the coin, that often acting out and engaging in anti-social behaviour is a sign of the need for a medical intervention of some variety.
Senator Pate: Thank you to all of the witnesses. I’ll ask both of my questions and then ask each of you to share your thoughts.
Mr. Roach, you talked about the fact that it’s a bit of a false binary that has been put to us by the government. You also mentioned the fact that we’re in a situation where Bissonnette has been rendered as a decision, as well as Luxton. The last time the life sentence was examined directly was in Latimer and then before that in Luxton. The court seemed to rely heavily upon the fact that there was a 15-year review provision. I’d like you to elaborate on that, please, if you will.
For Ms. Latimer, yesterday Jonathan Rudin reminded us that when the Youth Criminal Justice Act, of which you were a primary architect, was being put forth, there was a similar sentiment being provided by the government at the time. Yet, the Senate amended it to ensure that paragraph 718.2(e) was included, and, in fact, the sky didn’t fall, and the bill did pass, and we saw an overall improvement as a result of that. I’m curious if you could comment about that, especially in light of the fact if — as one member of Parliament recently asked me — the government’s rationale for failing to fix Bill C-5 is really about wanting to continue to jail Indigenous mothers and continue the consequent state seizure of their children. I thought it was an interesting juxtaposition to the notion of soft on crime as opposed to really underscoring the impact that both you and Mr. Roach have identified.
If you could both comment, that would be great. Thank you.
Mr. Roach: Senator Pate, you’re quite right that even before Bissonnette, the 1990 Luxton precedent could be revisited, because the court did rely very heavily on the so-called faint hope hearings, which have been abolished. I think also, though, Bissonnette was fairly revolutionary in section 12 Charter jurisprudence by introducing this idea that if you don’t have a chance for parole during your natural lifespan, that in and of itself is cruel and unusual. Even in that decision, the court seemed to be aware of, unfortunately, the shockingly low lifespan of those who are in our federal penitentiaries. I think both of these suggest that the reliance on Luxton and Latimer as a reason not to go to exemptions for mandatory life imprisonment for murder is shaky if you say that’s because of the Charter. I also think, too, and I’ve argued this throughout my academic career, that the Charter is the minimum. It doesn’t necessarily have to be the maximum.
I had mentioned the false guilty pleas, and this reflects with colleagues. We are launching a Canadian registry of wrongful convictions, and it includes 18 false guilty pleas. Of those 18, 70% are women, Indigenous, racialized or people with cognitive disabilities.
It’s always open for Parliament to not simply follow the courts, as I think has too often been the case and, frankly, is the case with a large part of Bill C-5, but also to exercise its own sense of justice. I believe Edmund Burke spoke about that. I wouldn’t normally cite Edmund Burke, but even he said that the issue of a parliamentarian is not simply to do what a court says you can or can’t do.
Thank you very much for your question.
Ms. Latimer: Thank you, Senator Pate.
I did listen to Jonathan Rudin’s testimony yesterday, so I was struck by that. He’s absolutely right that the amendment to the equivalents of the Gladue provision was included as a result of the Senate intervention into the Youth Criminal Justice Act.
I was, as you know, a good bureaucrat at the time, and we were of the view that getting legislation right is an iterative process and you should take into account what the House of Commons committee and what the Senate committee is recommending for improvements to the legislation. This, of course, was a political issue, but from a policy perspective, it makes imminently good sense to hear what the experts have to say and to include that in the legislation, if you’re able to do that. I think if there’s a block, it’s probably more from the political end rather than the public policy end in trying to get the legislation right.
I would highly recommend that that exception and the judicial discretion provision be included in this bill. This is a train that’s leaving the station. This is an opportunity to really do something that improves justice, where all of us have recognized there’s a considerable amount of injustice if people are exposed to disproportionate sentences because of mandatory minimums. I’m really hopeful that the Senate will convey to the bureaucrats that this is desirable. We’ll see if we can’t get that amendment in.
Senator Simons: Professor Roach, I’m one of the few people on this committee who didn’t go to law school. I want to make sure I’m understanding correctly. Because different mandatory minimums have been struck down as unconstitutional by different superior courts in different provinces, we have a patchwork system where you might be subject to a mandatory minimum sentence in Manitoba but not in Saskatchewan if you committed the same act. I’m wondering if you can tell me, as a professor of law, what it means for the administration of justice to have that kind of unequal sentencing provision from province to province.
Mr. Roach: That’s entirely right, Senator Simons. That was why I was reluctant to say that the bill has no value, because there may be cases where, in unifying the law from coast to coast to coast, it adds some degree of uniformity. These cases have been clogging up the courts. They are slowly winding their way. But until each of these decisions striking down a mandatory minimum is either affirmed or overturned by the Supreme Court, you’re exactly right that it will only apply within the particular province. In fact, if it’s a trial judge making a ruling — although it’s more difficult now for trial judges to depart from decisions from their colleagues — that’s even possible, so you could have even disparities within one province. Of course, one of the reasons why the Parliament has exclusive jurisdiction over criminal law and procedure was a sense in 1867 that it was desirable to have a uniform Criminal Code throughout Canada.
Senator Simons: It won’t unify everything because it will only deal with a fraction of offences. As I understand the analysis, there will still be offences left out of Bill C-5 and it will still create a higgledy-piggledy patchwork of who can be sentenced to what where.
Mr. Roach: That’s right. The firearms provisions of the Criminal Code have long been a statutory exemption system where they are still a kind of starting point, but the judge can justify on the basis of the facts of the particular case. I actually think the jurisprudence that may develop around these exemptions in some ways may be a healthier jurisprudence than even the ones under section 12 because generally courts should decide things at a sub-constitutional level and only go to the constitutional decision when it is absolutely necessary. There has been a lot of confusion about the Charter jurisprudence and the issue of reasonable hypothetical. Again, I don’t want to get too far into the legal weeds, but I do think that allowing exemptions from mandatory penalties is not unheard of in our Criminal Code. It’s certainly not unheard of in England and other jurisdictions.
Chief Justice McLachlin, I think, is rightly and widely admired for her practical good sense. I read her decision in Lloyd as basically saying: Parliament, you have two choices. One is you can define or attempt to define offences with such precision that you’re never going to have a cruel and unusual punishment. I think that’s impossible. Second, you can just allow trial judges to make exemptions but then have to justify them.
I don’t think our courts of appeal are necessarily going to accept all these justifications, but I think that will be a healthier debate than the one that we have had really for the last 15 years where it’s been constitutional litigation galore.
Senator Simons: You talked about Bill C-75 and the bail and arrest provisions that you thought we should be taking a look at. Can you outline quickly what those are?
Mr. Roach: Yes. They simply, like 718.2(e), direct whoever is administering, in this case the police, to pay attention to the over-representation of Indigenous and other racialized groups who are otherwise disadvantaged in receiving these benefits. It’s fairly open-ended, but it’s a reminder to those who administer the act — in here the police — to bear that in mind.
Senator Arnot: Thank you to the witnesses. I’m going to make a statement about context and I’m going to ask two questions. I’d like all the witnesses to comment, please.
I completely agree with the logic of the arguments of the three witnesses here today, and I support the idea of eliminating mandatory minimum sentences for all crimes. I think that Bissonnette and the Supreme Court of Canada has given an open invitation to do exactly that.
But I want to acknowledge a reality, and I think there is a reality that the general public has a concern about crime. There’s an impression in the general public that serious crime is on the increase. That’s not actually the case, but the public has a concern because they see several news sources in every market, every day, outlining horrific crime in various communities. It’s easy to move concern in the general public to fear when people use tough-on-crime rhetoric. Tough-on-crime rhetoric usually attacks the confidence Canadians should have in the administration of justice and also confidence Canadians should have in the independent judiciary, which we’re lucky and fortunate to have in this country.
That being said, I’m wondering what John Howard and academia can do in general to actually move the general population’s understanding to the real realities and the real consequences, which you’ve already outlined. The general public isn’t with you. It makes it an impediment or barrier for politicians to move these yardsticks fast. I think there’s more work that needs to be done. You might have ideas about other agencies who can help communicate and educate the public in a much better way.
Generally, change comes in increments. This is anathema to your arguments and what I believe myself, but would it be a good idea to have some incremental change, remove these mandatory minimum sentences on numerous Criminal Code offences and other offences that this act applies to and generate some proven data that probably would demonstrate that the sky has not fallen? As I say, those who use tough-on-crime arguments are hoping for real fear in the community.
My two questions: One, what more can be done to educate the public, and what role can you play? Two, incremental change may well prove to be a foundation to make it much easier in the future, maybe in the not-too-distant future, to move on what the Supreme Court of Canada is basically asking for in Bissonnette. Thank you.
Mr. Roach: Thank you for that question, Senator Arnot.
My colleague, Professor Anthony Doob, has done some studies here showing that when people are given the specificity of individual cases, they may actually be much more sympathetic. That is something that I think should be done.
I also think that, whether it’s the Parliamentary Budget Officer or the law commission, we should cost out the cost both of keeping people in prison when it may not be necessary, or keeping them in longer than is necessary, and also the cost of Charter litigation. There is a sense — and I’ve been involved with Charter cases — that governments have unlimited resources. You go to the Supreme Court of Canada challenging a mandatory minimum — I represented the Canadian Civil Liberties Association in Latimer, and we had half the governments on the other side, as well as other intervenors, wanting that mandatory sentence upheld. I think the public is concerned about safety and is right to be concerned about safety, but we shouldn’t sell them false safety and we shouldn’t sell them safety that is more expensive than it needs to be.
Finally, I’m not sure this is a case of half a loaf because in addressing this issue, unfortunately, parliamentary time is extremely limited and may create an impression that this issue has somehow been solved. I don’t think the independent judiciary will at all be cowed, but it almost suggests that Parliament is a bit at odds with things like Lloyd and Bissonnette. How clearly do the courts have to speak? If you only deliver a half measure, I think Parliament is implicitly criticizing the advice that you are receiving, perhaps subtly, or the hint from the Supreme Court of Canada.
Senator Batters: Professor Roach, I’d like to focus on the part of Bill C-5 that focuses on conditional sentences. Jennifer Dunn, executive director of the London Abused Women’s Shelter, testified at the House of Commons Justice Committee stating this:
Women and girls are five times more likely than men to be victims of sexual assault, and sexual assault is a violent crime on the rise in Canada. With conditional sentencing, many women will be stuck in the community with the offender, which places them at even higher risk.
To our Senate Legal Committee, Ms. Dunn stated this in her recent testimony to us:
A conditional sentence does nothing to stop an offender from committing another violent act. Women need the courts to see this.
Yes, there are strict conditions imposed when it comes to a conditional sentence, but that does not mean that they will be followed and a woman’s life could be at risk.
Yesterday in the Senate Chamber, Minister Lametti said, “serious crimes will attract serious penalties,” yet his new expansion in Bill C-5 includes certain sexual assault and kidnapping offences.
Professor Roach, how do you respond to that part of the issue dealing with conditional sentences?
Mr. Roach: Like mandatory minimum sentences, the offence-based restrictions on conditional sentences really bite in the most exceptional cases. This is not saying that all sexual assaults should or will receive conditional sentences. It will take a lot of work, I would think, to satisfy a judge that a conditional sentence is in accord with all of the principles of sentencing, and the judge will not be blind to the fact that sexual assault is a very serious crime that needs to be denounced and deterred.
I think it’s a bit of a false equivalence. Can I guarantee that there will not be a case where a conditional sentence in a sexual assault case does not result in some form of re-harm to either the victim or another woman? No, I can’t. I don’t think anyone can. But I also don’t think that a categorical restriction on a conditional sentence, if it results in a one-year imprisonment sentence where the person — and Ms. Latimer could speak to this with more expertise than I — is discharged after three months without sort of dealing with the overall issue. I don’t think that also guarantees the safety of women and children. I think we need to have, as Senator Arnot says, a much more focused debate about public safety. There are no easy answers either way.
Senator Batters: I guess what we’re really saying here is that many of the arguments that have been made in favour of eliminating mandatory minimum sentences have been for exceptional cases. What you’re saying now is, don’t worry about those exceptional cases for victims where somebody might get a conditional sentence and then offend again, harming a victim. I guess it’s a matter of what priority the government forming this legislation has, whether we’re trying to cover off public safety or whether we’re using those exceptional circumstances in order to justify having offenders potentially go free. It’s an interesting argument, I guess.
Another question I have for you, Professor Roach, is, do you believe Parliament has any role in establishing sentencing parameters, both minimum or maximum?
Mr. Roach: Absolutely. In fact, that was one of the reasons why I suggested that you should revisit the issue of maximum sentences. There are all sorts of sentencing models, and I don’t at all think that we necessarily got it completely right in 1996. There’s a lot of international research. I believe that Parliament is a partner, but I also think that mandatory sentences can provide all sorts of guidance to judges and judges will not ignore them. But a mandatory sentence or a categorical restriction on conditional sentences cuts in on those most exceptional cases.
The last thing I would say, Senator Batters, is that we can torque this to offenders versus victims, and I think the public will understand it. But, again, I come back to my example. Can you guarantee that a short sentence — and most sentences are short — is also going to guarantee the safety of crime victims? Sometimes a conditional sentence that works can do a lot more than a very short criminal sentence. Again, there are no guarantees. We need more research. But I don’t think it’s in the public interest just to simplify everything into either you’re for the offender or you’re for the victim. In many cases, the offender and the victim have a lot of similarities.
Senator Batters: If we need more research on that particular area, then should the government be going forward with this part of the bill at this stage before they have such research?
Mr. Roach: I think there is an argument that the government should look at the 1996 sentencing reforms, which was really the last major — what’s happened there is everything has been piecemeal since 1996. I think what the government is doing is they’re responding to the court, saying certain mandatory minimums and certain restrictions on conditional sentences are not acceptable. I would not be opposed to a more thorough look at sentencing. There’s been proposals for a sentencing commission way back in 1987 and the Daubney committee in 1988. Yes, Parliament does have a role with respect to sentencing. This bill just seems to follow the courts as opposed to providing parliamentary leadership with respect to how we should think of sentencing and how we should evaluate it.
[Translation]
Senator Dupuis: Thank you to the witnesses for being with us. I have a question for the two of you.
Mr. Roach, you said this, and I quote:
[English]
Canadians should have faith in the justice system.
[Translation]
I’m glad you used the word “should,” because a number of witnesses told us . . . This bill eliminates some mandatory minimum sentences and gives judges greater discretion. What would you say, however, to women who told us they have absolutely no faith in the entire justice system, from police to the appeal judge and everyone in between? They feel that way because they had bad experiences and were treated poorly by the system. The question is for both witnesses.
Are you aware of any data illustrating the impact of mandatory minimum sentences on the overrepresentation of groups such as women, Indigenous people and racialized communities, as compared with the old system, which didn’t have mandatory minimum sentences? Are you aware of any data that suggest that the overrepresentation of these groups is the result of mandatory minimum sentences? Conversely, do the data show that these groups are overrepresented in the system with or without mandatory minimum sentences in place, suggesting a broader underlying issue?
[English]
Ms. Latimer: Those are interesting questions. I think a lot of people feel that at this point in time, the justice system has not been enormously fair and they lack confidence in the administration of justice. I’m talking now about Indigenous people, Black people, marginalized people, people with mental health issues and women. I think the answer is to try to improve the justice of the justice system rather than do anything else. We know that mandatory minimum penalties do not increase the justice of the justice system. If anything, they make it less just. I don’t think we embolden people’s confidence by increasing or not addressing the mandatory minimum penalties issues.
Mr. Roach: To add to that, let’s take the example of mandatory life imprisonment. I think that does have a role in the fact that close to 50% of women in prison are Indigenous, but it also encourages a process where cases are pled down to manslaughter because everyone recognizes that a mandatory life sentence would, in the circumstances, be grossly disproportionate. It results, as Justice Ratushny said, in women who may have a legitimate case of self-defence not rolling the dice with an all-or-nothing defence and simply accepting that they are guilty of manslaughter. As I said earlier, we know that this is causing wrongful convictions.
With respect to other empirical studies, again, I’m the first to say that, whether it’s StatsCan or others, we could do a much better job with criminal justice statistics. A lot of the mandatory minimums targeted in this bill have to do with firearms offences. As a person who lives in Toronto, it is my lived experience that firearms crime is becoming worse and not better. The idea behind a mandatory minimum is that it deters people by sending a certain message of punishment, but that assumes that the person is a rational actor capable of thinking of long-term consequences and doesn’t think that he or she will not be caught. That just doesn’t reflect the circumstances of the lives of the people in our criminal justice system. With respect to firearms, I think it would be hard to find many Canadians who say, “We’ve enacted mandatory minimums for firearms. We don’t have to worry about that issue any more.”
[Translation]
Senator Dupuis: As far as you know, does the research reveal any lessons given that we now have about 50 years’ worth of experience under our belt when it comes to the practice of forensic psychiatry, the assessment of the likelihood of violence, and the connection between mental health and violence? Can you share any information or lessons we should be taking away from all of that experience?
[English]
Mr. Roach: The policing book, as with most research on policing, is talking about how people in mental health crisis are extremely vulnerable in our justice system. They’re extremely vulnerable to violence from the police — not necessarily malevolent violence, but violence that the police are trained to administer if a person in mental health crisis, say, refuses to drop a knife. We’ve seen this time and time again.
It’s not a perfect database, but there’s a CBC Deadly Force database that talks about 500-plus people since 2000 who have died in police custody, some actually shot by the police. Many of those were people who were in mental health crisis.
Senator Klyne: Welcome to our guests, and thank you for your remarks.
I have two questions, Mr. Roach. I’ll ask them, and then you can answer. Time permitting, the other side of the panel can then answer.
There are those whose position is that the MMPs should not be repealed for any crime involving guns. What is the tipping point or threshold in this bill whereby certain offences related to firearms will be subject to MMPs or exempt? Does that make sense, or is it easier said than done?
My second question relates to those who don’t believe repealing MMPs will help correct over-representation of Indigenous, racialized or marginalized Canadians in the criminal justice system. Surely baby steps will get us there sooner than none at all. What alternative solutions, if any, could have been overlooked and would have better addressed over-representation in the criminal justice system generally and the courts and corrections service specifically?
Mr. Roach: For the last question, I don’t think you can guarantee that this bill will reduce over-representation in prison. I’ve learned, through the Gladue experience, that it’s foolish to make those sorts of promises even if we have the best of intentions. I would go back to something like the Truth and Reconciliation and Missing and Murdered Indigenous Women and Girls commissions, both of which try to situate these issues in a much broader context. So there is that.
In terms of firearms, I can’t do better than to come back to this: If people are arguing that we should maintain mandatory minimums for all firearm offences, it seems to me that implicit in that is a message that deterrence is working and that our firearm problems will get even worse than they are now if the mandatory minimum penalties are repealed. That position doesn’t make a lot of common sense. We need to look at where the firearms are coming from and examine our gun-control laws, but I don’t think someone in a gang is considering not getting a firearm because if they’re found with it, they’ll go to a penitentiary for three or five years. It’s not necessarily deterring people that feel they want to arm themselves with a deadly weapon.
Ms. Latimer: Thank you very much.
Reducing firearms is a very challenging issue. A lot of the prisoners with whom I have dealt who have been convicted of firearms offences are from neighbourhoods that are enormously dangerous, and they feel that they’re protecting themselves from opposing gang members who already have firearms. It’s important to get into those neighbourhoods and try to provide some alternatives to people who feel that their only recourse is to sell drugs or to get engaged in some activity that leads to territoriality, guns and an escalation of violence. You really need more crime-prevention-type measures in those communities rather than trying to control their guns. They’re basically afraid for their lives in those communities if they’re involved in that kind of activity. We need to provide alternatives to those types of activities. That would probably be much more effective than telling them they’re going to get three years as opposed to five years. They’re trying to save their lives. We just have to look at it in an entirely different way.
In terms of whether repealing MMPs will address over-representation, it might do something, but this is a much more complicated problem that requires a lot more effort. Again, it requires a lot of providing alternatives, options and resources in those communities to make them healthy. A lot of them are dysfunctional and marginalized, and a lot of crime is manifesting itself because people don’t see any options.
Senator Klyne: Thank you.
The Chair: Senators, we’re going to the second round. We have three senators in this round. You will have two minutes each.
Senator Pate: You both have spoken about the fact that mandatory minimum penalties prevent the application of section 718.2(e), which is one way to mitigate against the longer sentences and people serving time.
I would like you to focus, if you each can, please, in that we’re being encouraged to see this as a positive first step as though there is going to be a next step, although it’s clear, as you’ve already indicated, Professor Roach, that there is no plan for a second step in this Parliament. What does it take to bring the sorts of Charter challenges that would allow the further development to have us in accordance with what the Supreme Court also already said in Lloyd and Luxton?
Could you comment on the fact that we have taken action in other situations where lower courts have made decisions? I think of situations where relatively more privileged, well-resourced folks, like doctors, were implicated in a lower-court decision around medical assistance in dying, and we acted, and intoxication defences where they tend to be brought by fairly well-resourced individuals who have a phalanx of lawyers and professionals who can attest to their intoxication. I’d like to know what it takes to bring that about. In particular, given what we know of the past Parliament where we had to deal with segregation and the fact that, now, despite this situation not being solved, as professed by the government, we’re now seeing organizations like yours having to bring these cases yet again, what does that entail in terms of human resources? How do you get those resources to bring Charter challenges? How do the individuals who are in prison bring those challenges?
Mr. Roach: The accused has to obtain legal aid, because they’re generally poor. The lawyer has to be able to raise it on very complicated jurisprudence. As I said, if they succeed, then the government challenges them in the Court of Appeal and the Supreme Court of Canada. When they get to the Supreme Court of Canada, there are often multiple governments, and there might be a few intervenors on the other side. There is a great deal of legal resources, and all of that is being done on the back of the individual who is actually affected.
Senator Arnot: I would like to give Ms. Latimer the chance to answer my two questions. First, how do you get the general population in Canada to better understand the realities, the consequences and the inherent injustices in the current model of mandatory minimum sentences? That’s a real problem politically. It’s a practical reality. Second, if incremental change is offered, would it not be better to take an incremental step forward and then try to get data consequent from that reality to then move forward on the larger questions of mandatory minimums on murder?
Ms. Latimer: I think you’re right. We need a focused public education effort. People see mandatory minimums as reflecting how serious certain offences ought to be taken. Normally, that would be the maximum penalty that would be available for a penalty that would signal society’s denunciation of that type of crime. We need a public awareness campaign to look at mandatory minimums.
In terms of the incremental stages, I think the best first step in terms of dealing effectively with them is to provide judicial discretion to impose something other than the mandatory minimum.
It’s a real political challenge to start repealing mandatory minimums, because people have invested so much in thinking that you’re actually making the system weaker when, in fact, proportionate penalties would still be available across the board and would be required by the judiciary to impose those. Because mandatory minimums have been sold for the last decade or so as some sort of answer to crime problems, it’s going to take a little bit of work to try to get people to understand things better. It’s imminently doable, and I think we need to apply our minds to it.
Senator Klyne: My question is for Ms. Latimer, but if time permits, Mr. Roach can answer.
It’s deemed that this legislation is needed to address systemic racism issues within criminal justice, which includes police, courts and correctional services. I’m not sure that MMPs are going to address the cultural barriers within the courts and the correctional services, and I’m not sure that the police forces are ready to make some opinion on whether MMP or some other alternative would be right when dealing with youth or, even more differently, adults and repeat offenders. Are we missing this piece of a cultural barrier that may require training to make this effective?
Ms. Latimer: I think absolutely it would. I’m more familiar with the barriers that people face when they’re in the criminal justice system, and I’ll defer to Kent Roach, given his recent book, about whether or not the police are harbouring certain perceptions that are making their decisions systemically questionable. Certainly in the corrections system, we will see this. Particularly, they do not understand different cultures. It isn’t aligned, necessarily, with risk on the outside, which is what the correctional system should be looking at.
Tom Cardoso, for example, from The Globe and Mail did a very interesting study looking at a bunch of data. He concluded that Black people’s rates of recidivism are, in fact, lower once they get into the community, but on the corrections front, they’re slower to get paroled and they’re less likely to get reduced to lower levels of security because their cultural nuances are inconsistent with CSC’s value system.
As someone explained it to me, “Their programs are intended to rehabilitate me and reintegrate me into a middle-class White neighbourhood. That’s not where I’m from and that’s not where I’m going.” I think we really need to look at the underlying system, and I think it will require a lot of training and probably a lot of rethinking from the ground up.
Mr. Roach: Yes, and I would just quickly add that culture is also important with police. I do think that the evidence-based diversion measures in this bill are part of an overall message that the police are hopefully receiving, which is that we want them to act in a more evidence-based and outcome-based way and not simply to leaf through the Criminal Code and say, “Oh, yeah.”
Senator Klyne: Thank you.
The Chair: Mr. Marty, we didn’t give you many opportunities to speak. Do you want to have the last word? You have two minutes.
Mr. Marty: Thank you very much.
I would just add to the question of Senator Arnot about changing public opinions. The CCA is trying to do that with all the work that we do. I don’t want to publicize our organization, but we are here to answer questions that come from governments, whether federal, provincial or local. We are here to produce a document for the public, as well as for the government. Over the years, we’ve tried our best to answer complex questions, and both policing reports have hopefully helped with reaching the public and maybe changing their views.
I would just finish by saying that on this assessment, one key element to the success was the composition of the experts who were involved in creating this evidence. We had six Indigenous members among the ten panel members, and having a viewpoint from the Indigenous people and their communities was critical to making a report that spoke about an issue that involved Indigenous people to all people in Canada.
With that, I thank you again.
The Chair: Thank you, Mr. Marty, Mr. Roach and Ms. Latimer for giving us extended time and for always supporting the committee.
Senators, I have something to share with you, so give me a few seconds. The plan at this point is to head to clause-by-clause consideration around the last week of October. We will have witnesses when we return for that week, and then the following week we will have clause-by-clause. If you wish to propose amendments, I would remind you to consult the law clerk’s office. If you wish to propose observations, please have them translated before clause-by-clause consideration. Also, the Library of Parliament has very kindly agreed that if you need any help in drafting the observations, they will help.
That concludes today’s meeting. Thank you very much.
(The committee adjourned.)