THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, October 5, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.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.
[English]
The Chair: Honourable senators, I’m Mobina Jaffer, senator from British Columbia, and I have the pleasure of chairing this committee.
[Translation]
I’d like to ask the senators on this committee to introduce themselves, beginning on my right.
Senator LaBoucane-Benson: Pattie LaBoucane-Benson from Alberta.
Senator Harder: Peter Harder from Ontario.
Senator Cotter: Brent Cotter from Saskatchewan.
Senator Dupuis: Renée Dupuis. I’m an independent senator from the Laurentides in Quebec.
Senator Batters: Denise Batters from Saskatchewan.
Senator Clement: Bernadette Clement from Ontario.
Senator Pate: Kim Pate, here on the shores of the Kitchisippi, the unceded, unsurrendered territory of the Anishinabe Algonquin nation.
Senator Oh: Victor Oh from Ontario.
Senator Simons: Paula Simons from Alberta, also from Treaty 6 territory.
[English]
The Chair: Senators, today we are continuing our study of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.
For our first panel today, we welcome Jonathan Rudin, Program Director, Aboriginal Legal Services; and Elspeth Kaiser-Derrick, PhD Candidate at the Allard School of Law, University of British Columbia, as an individual.
Jonathan Rudin, Program Director, Aboriginal Legal Services: Thank you very much. Good morning, senators.
As the legislative summary for this bill makes clear, a major impetus for its introduction was the Sharma case. Aboriginal Legal Services, or ALS, was involved in this case from its inception in 2016, and we wrote the Gladue report for Ms. Sharma.
Shortly after completing the Gladue report, we intervened in the case at the Superior Court of Justice and then at the Ontario Court of Appeal. We also intervened at the Supreme Court in the PPSC’s — that’s the Public Prosecution Service of Canada — appeal of the case. That decision, as you know, is now on reserve. I was very privileged to be able to act as lead counsel for ALS throughout.
We are, of course, supportive of this bill, but it must always be kept in mind that if it passes as written, all it will do is partially restore Canadian criminal law to where it was in 2012. All of the work that was done in Sharma and all of the work of this committee just brings us back to where we were 10 years ago. While this is necessary work, it is hard to see this as representing progress.
We need to be clear: What is happening to Indigenous people in the criminal justice system today is mass incarceration.
In their paper Criminal Justice Reform and the Mass Imprisonment of Indigenous People in Canada, Jane Sprott, Cheryl Webster and Tony Doob studied non-Indigenous and Indigenous rates of incarceration per 100,000 of population. In 2017-18, the non-Indigenous incarceration rate was 79 per 100,000, a 20% decline from 1996 when the legislation that created conditional sentences and section 718.2(e) of the Criminal Code was passed. In contrast, the Indigenous rate was 677, a 33% increase from 1996. Indigenous Canadians are now almost nine times more likely to be imprisoned than non-Indigenous Canadians.
When the 2017-18 rate of Indigenous incarceration is compared to that of the U.S. for the same year, the Indigenous rate is actually slightly higher. America is the leading example of mass incarceration in the industrialized world. The fact that Indigenous rates are even higher than the U.S. means that “mass incarceration” is the only term that can adequately describe what is happening to Indigenous people, and this fact is a national disgrace.
Before I address our concerns with the bill — and we do have concerns — I want to speak to those who think that this legislation represents a soft-on-crime approach. We feel that criticism misses the mark. This bill will allow judges, based on the submissions of counsel, to arrive at what is the most appropriate sentence for an offender. Since the Sharma decision, we have seen cases where the Crown and defence put forward joint positions that do not require jail sentences.
Jailing people who pose no threat does not enhance community safety. Canadian jails do not do a good job in rehabilitating offenders generally, and specifically Indigenous offenders. We must always keep in mind that jailing people who don’t need jail has real consequences. People lose their accommodation, they lose their jobs, they lose opportunities for education and treatment and mothers in particular can lose custody of their children. No one benefits from a justice system that focuses exclusively on the most punitive aspects of sentencing.
Moving to our concerns with the bill, this government promised in 2015 to implement all the Calls to Action of the Truth and Reconciliation Commission. One of those recommendations was to abolish mandatory minimum sentences and the restrictions on conditional sentences. Bill C-5 is a start, but only just a start, on this commitment. We believe this is likely the only opportunity this Parliament will have to enact meaningful changes to mandatory minimums and conditional sentences. It is important, then, for Parliament to be brave and bold and to proactively address the other mandatory minimums present in the Criminal Code.
We know that the other mandatory minimum sentences that are in place have not been studied in depth, but we also know that’s not going to happen any time soon. An option that has always existed and that we urge this committee to consider with respect to all other mandatory minimums is to amend the Criminal Code and to do what other countries have done and allow for what are called “safety valves.” A safety valve can be used by a judge who is concerned that the imposition of a mandatory minimum sentence will cause serious injustice to the particular individual before them and exempt that person from the mandatory minimum without having to declare the minimum sentence unconstitutional.
The advantages of such an approach are twofold: First, it is quicker than having to challenge the constitutionality of a mandatory minimum and leaves the legislation in place for most offenders; and, second, decisions of trial judges are, of course, subject to appellate review. Within a few years we would have a robust set of jurisprudence on what sort of cases merit the use of a safety valve. Introducing an amendment to permit judges to rely on a safety valve for other mandatory minimums is a necessary and positive step forward.
Meegwetch, nia:wen, thank you.
The Chair: Thank you, Mr. Rudin.
Elspeth Kaiser-Derrick, PhD Candidate, Allard School of Law, University of British Columbia, as an individual: Good afternoon. I feel honoured and grateful to be invited here. I will provide context for certain intentions and limitations of my book, titled Implicating the System: Judicial Discourses in the Sentencing of Indigenous Women. I seek to challenge the capacity of Bill C-5 to alleviate the over-incarceration of Indigenous women without a further expansion of judicial discretion.
The National Inquiry into Missing and Murdered Indigenous Women and Girls includes in its Call for Justice 15.8 for all Canadians to “[h]elp hold all governments accountable . . . .” That guidance is how I understand my role here.
For my book, I reviewed 175 decisions sentencing Indigenous women. My largest intention was to examine these cases through the lens of a feminist theory called the victimization-criminalization continuum. My discussion of conditional sentence orders was subsidiary and in reference to the need for greater judicial discretion given the Gladue framework. I tried to use conditional sentence order, or CSO, legislation as a vehicle directed toward broadened judicial discretion, because restrictions on judicial discretion hinder the capacity for judges to give effect to the sentencing methodology required by the Supreme Court of Canada. I argued that legislative restrictions on CSOs should be changed, and I pointed to the Truth and Reconciliation Commission’s Call to Action 32 as a way to achieve that. The TRC calls for the federal government to amend the Criminal Code to allow judges to depart from mandatory minimum sentences and restrictions on CSOs with provision of reasons.
My research focuses, where possible, on sentences in the provincial range of less than two years of incarceration. This is also the level where CSOs may be relevant.
My book should not be read in isolation from the federal context. Methodological demarcations between offences attached to provincial or federal terms involve artificiality, with no bright line. Legislative decisions, which can be changed, determine what constitutes an offence. Moreover, police and/or prosecutorial decisions, without independent oversight, determine the offence for which an Indigenous woman is charged.
Two unsettling cases from my research involve facts that sound like these women were acting in self-defence against violence by male partners, even though these cases were not treated as self-defence cases. Other research more thoroughly addresses this issue of Indigenous women being overcharged, meaning being charged with more serious offences than is represented by the facts.
I flag this issue of overcharging because these discretionary decisions at the police and prosecutorial stages should be better counterbalanced by the protection of expanded judicial discretion. This is a particular concern for Indigenous women.
Of the Indigenous women in my book, an overwhelming majority — approximately 77% — pleaded guilty. For eight of the Indigenous women in my research, the judges indicate that these women had been initially charged with second-degree murder, which would carry a life sentence, and pleaded guilty to manslaughter. The need for expanded judicial discretion is amplified given concerns about overcharging and interconnected concerns about family-related and systemic pressures for Indigenous women to plead guilty.
In its 2020-21 annual report, the Office of the Correctional Investigator signals that Indigenous women comprise 43% of all federally sentenced women. As Bill C-5 is framed by the need to reduce Indigenous over-incarceration, I believe it should be expanded to permit judges to depart from mandatory minimums and restrictions on CSOs in a manner set out by the TRC in its Call to Action 32.
I also have concerns about any narrowing of my own book to only CSOs. Essentially I suggest that Bill C-5 does not go far enough in its existing form.
Thank you for your time today.
The Chair: Thank you very much. We will now go on to questions.
Senator LaBoucane-Benson: This question is for Mr. Rudin. It’s nice to see you again. It’s been a long time.
I’d like you to talk a bit about the Sharma case. When I think about the admissions in 2019, the last statistic that I have, the provincial Indigenous admissions in all of Canada was over 54,000, and of those, 13,919 were Indigenous women.
Is the fact pattern of Sharma’s case unusual, or is it something you see in similar cases quite regularly?
Mr. Rudin: Thank you for the question, Senator LaBoucane-Benson, and it is nice to see you, too. I don’t think I’ve congratulated you on your appointment, which was a long time ago, so my belated congratulations for that.
We see this fact situation often occurring. I think what is unique about the Sharma case is that in that case, counsel for Ms. Sharma was not content to simply try to get the best and the lowest of a mandatory minimum sentence. He was prepared — and he reached out to us for assistance — to, first, challenge the mandatory minimum sentence for importing drugs, which is what she was charged with, and then to challenge the lack of access to conditional sentences. So it is not unique at all.
We see too often people charged with offences that restrict the ability of judges to do what they need to do. For us, we see it particularly because we write Gladue reports. We’ll write reports for an individual and a judge might say, “Well, now I know more about you. If only I had a chance to, for example, apply a conditional sentence, but I can’t because the choice that the Crown made for what offence they wished to prosecute has taken that off the table.”
I think that’s one of the big concerns for us about the way the criminal justice system has moved, and Bill C-5 helps move us back the other way. It really moved Crowns to the role of judges. The decisions by Crowns had a way to significantly impact what happened to all offenders — and in our concern, Indigenous offenders — and in a way that was not subject to review. Judges always have to give reasons. Crowns not only don’t have to give reasons, but you’re not allowed to probe those reasons. I think we need to move the balance back.
Senator Dalphond: Thank you to the witnesses for being with us today. Their contribution is always welcome.
Mr. Rudin, you referred to some appalling statistics, including the fact that our incarceration rates of Indigenous people are higher than in the U.S. Do you think this bill, if adopted, will significantly reduce the number of incarcerations for Indigenous people and people of Black communities and other racialized groups?
Mr. Rudin: Thank you for the question. I think the bill, as currently written, is limited because there are still many mandatory minimums that are not included. Any step toward reducing the impact of mandatory minimums and the lack of conditional sentences is an important step. More obviously needs to be done, and there are many reasons why rates of Indigenous incarceration have risen while those for non-Indigenous people have dropped. But this is certainly one of the factors. I think it will also perhaps encourage Crowns to not think of the offence they choose to charge as being the most important factor.
I do think it will be helpful. I agree with Ms. Kaiser-Derrick that the bill should go further, but when we have appalling statistics, we have to do what we can. There are other needs that need to be taken up by provinces and territories, but this is an important step.
Senator Dalphond: Thank you.
Senator Batters: Either one of our witnesses may answer my first question, if they wish.
At the House of Commons Justice Committee, the Chief of Police of the Six Nations Police Service, Darren Montour, spoke about the proposed conditional sentences in Bill C-5 for violent offenders, stating they will not deter offenders from committing crimes. He continued:
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 services across the country, and especially those within indigenous communities, are significantly understaffed. We are continuously asked to do more with less . . .
How do you respond to Chief Montour, who has stated expressly that they are not equipped to deal with these changes to conditional sentencing?
Mr. Rudin: Thank you, Senator Batters. I think he raises an important point, and I think you’ve raised one as well. We need to look at everything he said. What he said was that given the insufficient resources that are provided to his policing service, he can’t do the sort of work he wants to do in terms of enforcing conditional sentences.
What that’s saying, and this gets back to Senator Dalphond’s point, is if we under-serve and we don’t properly fund Indigenous police services, they then say, “Well, we can’t do what we need to do with conditional sentences,” which means that people who shouldn’t go to jail — he’s not saying these people should go to jail — he’s saying, “We don’t have the funds we need to do the work.”
If you think about what he said, and if we’re serious about these issues, then we’re going to want to make sure that funding for Indigenous police services, which I know is a matter that concerns many people in Canada right now, is increased so that they can do the work they need to do.
But to say because provinces and the federal government are not funding Indigenous police services properly, that should mean more Indigenous people should go to jail who shouldn’t go to jail, and that’s not a conclusion that I’d be happy to draw.
Senator Batters: I may need to go on, and I’ll try to get our other witness in later on.
In the Manitoba Court of Queen’s Bench R. v. Martin case in 2005, Justice McCawley stated:
A sentencing judge is required to determine a fit and proper sentence within the parameters set by Parliament. As such, no sentencing judge has an unfettered discretion. Parliament has the unquestioned authority to determine the sentence for every Criminal Code offence and has done so in a number of ways, subject always to the constraints of s. 12 of the Charter. Although Parliament’s right to impose minimum sentences is also unquestioned, such instances are relatively rare. Whereas Parliament has chosen to give considerable discretion to judges to fashion an appropriate sentence in keeping with the purpose and principles of sentencing articulated in the Criminal Code, the fact that judicial discretion is limited, either directly from a mandatory minimum provision or indirectly from the notice requirement, does not offend the principles of fundamental justice. . . .
Given that principle, wouldn’t it make sense for Parliament to carefully consider the proportionality and Charter compliance of the sentencing range on each individual offence rather than eradicate minimum sentences for so many offences, as has been done in Bill C-5 in one fell swoop? Perhaps our other witness could respond to that.
Ms. Kaiser-Derrick: I appreciate the invitation to respond. I would actually prefer to send this back to Mr. Rudin. I think he’s better equipped than I am.
Mr. Rudin: Thank you. I think there are a couple of elements to that. One thing we should point out in terms of the quote you raised is that certainly since that decision — when was that, 2007?
Senator Batters: It was 2005.
Mr. Rudin: Since 2005 we’ve seen, certainly, the Supreme Court overturn more mandatory sentences than before, so there have been more challenges to that.
I would also point out that Sharma, in striking down the lack of access to conditional sentences, relied on section 15 and spoke about the fact that the lack of access to conditional sentences discriminates against Indigenous people. I think we need to look at things more broadly.
Parliament certainly can set ranges if they’d like, but the reality is that the attempt to set ranges outside peoples lived experiences often leaves people in the justice system feeling very uncomfortable. This is why I referred earlier to safety valves as an example.
Australia and Great Britain, while they use mandatory minimum sentences, like the idea of safety valves because the legislature realizes that sometimes a judge is faced with someone who doesn’t fit within the range that Parliament prescribes, and it would be wrong to have that person serve a mandatory sentence.
There is generally a recognition that mandatory minimum sentences, at least in Canada, first, have problems with the Charter generally, but also, in a fact-based situation, we have to be able to make exceptions. The problem with mandatory minimums and restricting access to conditional sentences is that people go to jail who don’t need to go to jail. And while most people may, for whatever those offences are, have to go to jail, assuming that everyone does is just not congruent with the experience of those involved in the justice system.
Senator Simons: I recently had the privilege of visiting the Edmonton Institution for Women in the company of my colleague Senator Pate, and I was quite taken aback. I have always known there is an over-incarceration issue, but at the Edmonton Institution for Women, 70% of the inmates are Indigenous. I wondered if I could first ask Ms. Kaiser-Derrick and then Mr. Rudin to speak to what you think might be the questions of systemic racism that are leading to that degree of incarceration despite the efforts to make Gladue reports a meaningful context for judges at sentencing. Why do you think that we have such a grotesque overrepresentation of Indigenous women in that facility?
Ms. Kaiser-Derrick: I really appreciate this question. I went to law school in Edmonton, and that’s where I first became overwhelmed by the issue of overrepresentation because of my experience at a shelter for sex workers. Many of them had been criminalized, and approximately 80% were Indigenous.
Actually, that’s how I opened my book. The director of that program spoke to a parliamentary subcommittee in 2005, and I actually wrote down her quote, hoping to say it today. She mentioned that the women that she worked with “don’t feel listened to” and that’s why they didn’t accompany her to the House of Commons during that committee. At that meeting, she said:
They feel like these kinds of meetings and bureaucracies are not open to their particular attitudes or their particular life stories.
In saying that, there are many missing voices here today.
To respond to your question, from my work, the thing that I found most striking in terms of overrepresentation and all of these complex issues is, as Patricia Monture-Angus says, that this is “an imposed criminal justice system.” The very structure of the criminal justice system in its colonial capacity itself inflicts harm. Whenever the criminal justice system is in conflict with Indigenous women, it just continues to deepen the problems.
Returning to the issue of judicial discretion, in my research, I noticed so many judges that were really genuinely trying to craft creative and innovative solutions in particular cases, particularly for Indigenous mothers. They needed the capacity to be able to order sentences that would hopefully remove Indigenous women from the more punitive elements of the system. So the most important issues to me are shifting the focus from overrepresentation to the issue of systemic and colonial harms caused by the criminal justice system and focusing on protecting Indigenous women from entering the system, and then adding in safeguards to help them get out. Thank you.
Mr. Rudin: I would just say in response to that question that when we talk about the criminal justice system, we often think in terms of dualities — there are victims and there are offenders. Certainly, what we know for Indigenous women in particular — but not exclusively — is that they are almost all victims before they are offenders. The reason they are offenders is because they were victims.
The case of Ms. Sharma is an excellent example. I’m not going to go into detail about it, but when you read her Gladue report, you understand why she ended up doing what she did. You understand that when she had the support she needed, she was not going to be a risk to reoffend. As I mentioned earlier in response to Senator LaBoucane-Benson’s question, without her lawyer pushing forward, she would have first had a mandatory minimum, and she would have gone to jail for at least two years. And she had a child. That would have just made life more difficult for her child as well.
So that’s why we see this overrepresentation — mass incarceration itself is probably not the right word for what has happened to Indigenous women. We are not able to take into account their circumstances and understand what led them to the behaviours that brought them before the courts. But when we know that, we realize that the issues that lie behind them can be addressed, and jail is not the place to do that.
Senator Pate: Thank you to both witnesses, Ms. Kaiser-Derrick and Mr. Rudin, for appearing.
Both of you have recommended a mechanism that New Zealand actually just brought in over this past summer. It’s a provision whereby for any mandatory minimum penalties that Bill C-5 does not repeal, there be an ability for judges to not impose them.
When the Minister of Justice was before this committee and, earlier today, before the Senate, he talked about this not being the time. I would like you both to comment on that kind of comment. We just had the National Day for Truth and Reconciliation on Friday, and many people, including my colleagues Senator LaBoucane-Benson and Senator Coyle, talked about not making the same mistakes and not being complicit.
Right now, the government’s rationale for not moving forward is they don’t want to appear soft on crime, and that’s the call-out from others within the elected officials. However, as you have both identified, if this bill is not amended, the most likely victims of it — if I can put it that way — would continue to be Indigenous mothers who are more likely to be jailed and the consequent state seizure of their children.
Could you both please comment further on the need for an amendment and why the timing is right now?
Ms. Kaiser-Derrick: Thank you, Mr. Rudin, and thank you, Senator Pate.
In terms of timing, I would like to return to something I said in my opening when I appeared before the House of Commons. Both Supreme Court decisions in Gladue and Ipeelee acknowledged the limits of the sentencing process to remedy the injustice of Indigenous overrepresentation in the system. In each decision, there is some measure of optimism. In Gladue, that optimism rests in that judges determine most directly whether an Indigenous person goes to prison. In Ipeelee, there is some residual optimism in its clarification of how judges should apply section 718.2(e). In terms of timing, it’s critical to recognize that Gladue was decided over 20 years ago, and Ipeelee was decided a decade ago. I believe the most recent report by the Office of the Correctional Investigator — the 2020-21 report — indicates that the population of Indigenous women who are federally sentenced has increased by 73.8% over 30 years, now representing about 43% of all federally sentenced women.
So that means the proportion of Indigenous women who are federally sentenced has steadily increased across past efforts to ameliorate that issue, and across many years, including the over 20 years spanning Gladue and Ipeelee.
If it continues to be kicked down the road, I see that continuing to accelerate. I don’t know when there will be another time. I feel a huge sense of responsibility, even in my appearing here today. I don’t know when I’ll appear before the government again. In light of how I opened my statement with the directive from the National Inquiry into Missing and Murdered Indigenous Women and Girls for Canadians to hold governments to account, why not now? Also, if not now, how can that be justified?
Mr. Rudin: Thank you for the question, Senator Pate. Let me pick up on that point.
I’m just tired of waiting. When Sharma was being argued at the Ontario Superior Court, then-justice minister Jody Wilson-Raybould was interviewed, and she said that we know that mandatory minimums have a disproportionate impact on Indigenous people and Indigenous women. We know it’s unfair and unjust. We all know this, but we don’t do anything about it. I can’t say it can’t continue because it very well could continue, and it is continuing. Every day, nothing is done. Indigenous people go to jail who don’t have to go to jail. That’s not a soft-on-crime argument. I find the soft-on-crime argument very hard to handle. No one is suggesting that people who are legitimately a danger to the community be released.
What we are doing by keeping a system in place that everybody recognizes — well, most people recognize it, and certainly almost everyone in the government recognizes it — is unfair is we are putting the burden of that unfairness on Indigenous people and saying, “Wait.” What are they supposed to wait for? Wait for your turn for what? Wait until the rest of the world catches up and determines maybe we shouldn’t have been doing this?
We already have mass incarceration. We can’t wait. I was very serious in our submissions. I don’t know a lot, but I know this will be the last significant set of criminal law reforms that this Parliament is going to deal with. We all know that. We can say let’s wait for another day, but there is no other day coming anytime soon.
This bill started as another bill before the House was prorogued. We have to stop waiting and we have to stop pretending that waiting doesn’t carry its toll, because there is a toll. The reason that we, as a broad society, can say we can wait is because we’re not bearing that toll. Indigenous communities bear that toll. Indigenous children bear that toll. It’s time to stop. It’s time to just do what we said we were going to do when the TRC made their recommendations. This government and many people agreed to adopt the recommendations of the TRC. Let’s finally do it. For goodness’ sake, there is no reason to wait any longer.
Senator Clement: Thank you both for being here, and thank you both for your careers.
I want to pursue the issue of timing because I have that same sense of urgency that you speak with, Mr. Rudin. We are to understand that the time is not now, that this is what is possible now and that the current context does not allow us to go any further because it’s not what Canadians will be able to accept. That’s what we are to understand.
So how do we speak to Canadians, to civil society — not to the lawyers and the fancy people in this room — and to the people who are understanding that possibly these measures work and that they actually deter crime? Because when I talk to Canadians, they are not feeling safer or like they have trust in the judicial system, but they are the ones who are being used as the reason why we can’t go any further because they will not accept that we go further with Bill C-5. How do we speak to civil society? How do I do that? Help.
Mr. Rudin: I’ve certainly found when I’ve had the opportunity to speak to people and you actually start to talk about individual cases, they do start to understand. I think what has happened is, over the years, we have told people that we’re going to make them safer by locking them up, and of course that’s a false equation, because locking people up isn’t making people safer.
If deterrents worked, the one group of people you would assume would not be involved in the criminal justice system are Indigenous people, because no one knows better that the consequence of getting involved in the criminal justice system is that you go to jail. No one knows that better than Indigenous people, yet the rates are going up.
The way to get to it is by looking at specific cases and specific facts. Look at the story of Ms. Sharma. There is another woman — again, I don’t want to talk about her life too much — an Indigenous woman in the Sarnia area who pleaded guilty to manslaughter and who, when the judge understood all of the circumstances of her life, realized that she didn’t have to go to jail. She was given a conditional sentence so she could be with her child. There was no public safety issue. The world was not made worse because that happened. I do think people understand that when they are told about particular individuals and understand what this is about.
But when we talk about, oh, my god, there are going to be all these people doing awful things out there, then people get afraid. We have spent too long making people afraid. I do think there is a responsibility on parliamentarians to do exactly as you said and go out to explain the situation because, in my experience, when you sit down and talk to people, they understand.
Senator Clement: Thank you. Ms. Kaiser-Derrick?
Ms. Kaiser-Derrick: Thank you for the question. I’ll say a couple of things.
First, I would like to return to what Mr. Rudin brought up earlier about the relationship between victimization and criminalization and its particular significance for Indigenous women in terms of how to talk to the public.
The UN committee relating to the Convention on the Elimination of All Forms of Discrimination Against Women released a report — I didn’t note the date, but I think it was 2015. It required that in order for all Indigenous women “to enjoy their human rights and fundamental freedoms,” Canadian state actors at all levels, including police and the judicial system, “must comply with certain due diligence obligations to put them into effect.” Those obligations include preventing and protecting against gender-based violence toward Indigenous women.
The UN committee identified these state responsibilities for protection in relation to victimized Indigenous women, but given the prevalence of experiences of victimization among criminalized Indigenous women, I suggest that Canada’s institutional responsibilities under this international convention should be read broadly and should encompass its obligations to Indigenous women in the criminal justice system. That would mean making amendments, such as the one we have been talking about, to secure and protect the safety of Indigenous women at sentencing, where the criminal justice system is a force that causes harm.
I will add something that stuck with me personally, so I think perhaps it could resonate for others as well. In my research, I found a 2014 case from the Provincial Court of Nova Scotia. In it, the judge referred to the offences that have been committed against Indigenous communities throughout Canada, and the judge said that “. . . those offences have implicated the justice system of this province and other provinces . . . .”
That really stuck with me because that is a different formulation of how to understand what constitutes an offence. It makes it so it’s not individualized, like what did this particular person before the court do. Rather, what offences have the criminal justice system imposed on Indigenous people? I found that framing really striking, and especially so given that it was issued by a judge.
In sum, I think it might be helpful to concentrate on the experiences of victimization, particularly with Indigenous women, but also more broadly for people at sentencing. Also, there is just the force of the criminal justice system in terms of the harms, and as this judge said, the offences that it inflicts. How do we protect people in the system and those at risk of entering it?
Senator Cotter: Thank you to both of the witnesses for their presentations. Ms. Kaiser-Derrick, it’s been a very long time since we’ve seen one another, but it’s nice to see you again.
I’d like to come at this from a slightly different perspective, if I might, and one that is not even particularly legal. Many of us in this room and you, I think, have each studied criminal law in law school, where the focus was on what constituted an offence, primarily, with almost no consideration of the sentencing dimension of things. Maybe there was a course at your law school or you learned it on the job if you’re a criminal lawyer.
I’m coming to this point: I served as a deputy attorney general for a number of years in Saskatchewan, and when you went to the northern communities — often they were itinerant courts — a lot of people from the community, mostly Indigenous communities, came and watched the proceedings. They generally had an idea that the person, Johnny or Mary or whoever it was, had done a bad thing, and probably the thing they were charged with and were pleading guilty to.
But the community wasn’t so much interested in that. They were interested in what was going to happen to the person. They were concerned that maybe this person was actually a danger to the community and should be taken somewhere else. Many times they were interested in ways in which the person might be left in the community, because there were all kinds of community consequences. Who will take care of their kids? Is the person going to lose their job, and who is going to support the family?
So the question of what happened was truly important to the individual offender, but it was profoundly important to the community. My guess in all those cases is they didn’t want a bunch of people in Ottawa to set out the harsh boundaries of what that outcome should be. They wanted the judge to decide what was best in the circumstances, not just for the offender and the victims, but for the rest of the community who were going to be impacted.
From the community’s point of view — it’s not entirely an answer to Senator Clement’s question about how we might understand this better — it strikes me that we aren’t really getting outside of ourselves enough to say these are actually big questions of criminal law that matter to communities and to community health. I don’t even know if it’s a question, but I’d invite your comments on that.
Ms. Kaiser-Derrick: I haven’t formulated a response yet, but I’ll speak on the fly for a moment. I will say that all of your comments strongly resonate with what emerged for me from the cases that I studied as well, in the sense that some judges were quite cognizant of impacts to the community and the individual offender’s family. I remember one judge, for example, responded, if I issue a prison sentence, what will that communicate to this Indigenous woman’s daughter, in terms of perpetuating systemic harms of separating Indigenous mothers from their children and further fracturing Indigenous families? That is another ongoing and reverberating impact of different successive forms of colonial harms.
On the one hand, I saw that some judges did strive to take a broader view of what the impacts might be at the family level and at the community level of a given sentence and not just to the individual. Because I saw judges being cognizant of that, they also need to have judicial discretion to be able to exercise options to facilitate more consideration about impacts to the community.
The other thing I wanted to add — because you introduced your question by saying it was less of a legal question and more of a broad impact, community-oriented question — there is a section in my book where I’ve focused on some cases where Indigenous women’s fears and anxieties and experiences of loss, whether that be housing, employment or their children, featured in their specific case. Often that kind of dynamic can be invisible in sentencing decisions, and sometimes in transcripts, where the experiences of the Indigenous women before the courts, their experiences of and the criminal justice system might not make it onto official documents. But it was visible at times. There were cases where Indigenous women were scared about how the prospect of prison might impact their ability to care for their children or whether they would be incarcerated far away from their children or whether their children would be removed by child welfare authorities. I did see an intersection between processes of criminalization and Indigenous women’s fears of criminalization and the child welfare system, whether they feared losing their children and becoming criminalized as a result in connection to that, or otherwise.
Or for women in other cases, it would mention in the sentencing decisions that she had used cocaine or she had used alcohol, sometimes in breach of conditions, because she had so much — I’m saying “she,” but it was more than one woman — anxiety about the sentencing process itself and about all of these impacts that you’re discussing in terms of what this sentence would mean for her family, for her children, for her community, for her relationships and for theirs with her.
Those considerations of the broader impacts and not just the individualized focus of what a given sentence means are critical, and because judges seem to be attentive to that in cases, they need the judicial discretion to be able to exercise that. Thank you.
Senator Harder: Thank you to our witnesses. My question, following a comment, is to Mr. Rudin.
Thirty years ago I was deputy solicitor general, and it was at the end of the age where there was an alignment between the policy people, the politicians of the time, and certainly the Parole Board and Correctional Service Canada, to have a rather progressive view of corrections and incarceration. It really has been a lesson of 25 years or more of ever-tightening and repeating the mantra of “one more tightening of the screw,” or “one more set of mandatory sentences,” or other regressive steps that successive governments have taken and expressed to the people of Canada that that step was necessary to ensure their well-being as Canadians.
I very much appreciate and accept the comments and judgments you have made on this piece of legislation.
You’ve asked us to be brave and to be bold. Being in the Senate, it’s very easy to be brave and to be bold, at least until you’re 75. I very much worry that if this bill is amended in any fashion, it will not even be debated in the other place because of the nature of the politics of our time.
Mr. Rudin, you said this is an important step, on the one hand, and you also said, on the other hand, “I’m tired of waiting.” Given the Hobbesian choice I’m presenting to you, how brave and bold ought the Senate of Canada be?
Mr. Rudin: Thank you for the question, Senator Harder. I am not a politician. I would never be able to be a politician. I commend you for your years of service and your ability.
I have heard on a number of occasions, “Don’t do this because something will happen.” We were involved in the Youth Criminal Justice Act. When that act was first introduced, it didn’t have an equivalent to section 718.2(e) in it. We went to the House of Commons and said, “You don’t have that section in it,” and that amendment was not accepted. We went to the Senate, and we said, “That section is not there,” and the Senate put it in. As I was told, the Senate was told at that time, “Don’t do this, because when it comes back to the House, we might not approve it at all.” And that’s not what happened. It did get approved.
It’s not my place to tell you what to do. I would just say that the fear that something might happen — we don’t know if that’s the case. I do believe that if faced with doing nothing or doing what really should be done, prodded by the Senate to do that, I think a majority of the House of Commons would do the right thing and approve the bill.
Now, can I tell you that for sure? Of course I can’t. But that’s what I do believe. I think it needs to be put to people that this is the choice that they have: to do nothing and make it worse or to grapple properly with the issue before them. In some ways, the Senate would be doing Parliament a favour by putting that choice in front of them.
[Translation]
Senator Dupuis: Ms. Kaiser-Derrick, I’d like to come back to some of your comments. Other witnesses have made the same comments, that women are not heard in the justice system. It’s a problem that goes beyond the issue of minimum sentences and a one-time change. In other words, there’s deeply rooted systemic discrimination in the justice system.
One important point I took from your presentation was that women are not heard in the justice system. You’re not the first witness to tell us that; we’ve heard it from several witnesses. You referred to the fact that the justice system is a colonial system. I don’t think that minimum sentences address the issue of the colonial system.
My question is for both witnesses. Should we consider introducing a process into the justice system that would ensure that every woman who is accused, or every woman who has been a victim of violence, who has to go through the police investigation process — you referred to it because it precedes the justice system — could have representation and support from a lawyer or other representative?
That would ensure that the police, Crown attorneys and the judge would be required to consider the totality of a given situation in the case of a woman who is a witness because she has been a victim of violence or has been charged with a crime in the justice system.
[English]
Ms. Kaiser-Derrick: Thank you for the question. I appreciate that.
I will say I know that there are some organizations that do provide assistance with court workers and support workers who can accompany women and Indigenous women to their appearances for emotional support or to help guide them through the process.
I will also say I think the issue of Indigenous women not feeling heard or feeling that their experiences are not understood by the criminal justice system is a very deep one. I think some of it is embedded into the structure of the criminal justice system itself.
For example, in terms of how records are produced that are carried through the system as an Indigenous woman is charged and then moves through the system to the various stages, there are different records produced. You mentioned police, and then there will be probation officers and lawyers and other junctures in the system where information is produced about their lives. Because of the ways that it can be centred around the offence that is charged and a very narrow issue, I think it can mean that some of their experiences of victimization and colonialism may not be represented and carried through in the same way.
Also, I think that there are issues of alienation from the criminal justice system and a profound mistrust of the criminal justice system that couldn’t be remedied by support at that level. I think it would be a more wholesale problem.
I was trying to look for the quote while you were speaking and I can’t find it so this is just offhand. But I looked at a report by the Aboriginal Justice Inquiry of Manitoba, where two judges, two commissioners, produced the report after speaking with Indigenous women in that province. That was 30 years ago. At that point, they wrote that the Indigenous women they encountered and who spoke to them about their work felt misunderstood and alienated and unheard and that their experiences of victimization were not understood in the criminal justice system.
I think that has continued over time. It’s such an intractable problem. I think it’s an important thing to think about and I don’t know how to address it, so I just tried to speak openly. Thank you very much.
The Chair: Mr. Rudin, I have a question for you. You spoke about safety valves. Can you expand on what you mean by safety valves?
Mr. Rudin: Thank you for the question. The idea of a safety valve is that when there is a mandatory minimum sentence — take the offences that are not included in Bill C-5 — if someone were charged with an offence not in Bill C-5, if there were a safety valve provision, to use the short form, a judge would have the option of saying that, for this particular offender, imposing a mandatory minimum sentence does not accord with the principles of sentencing as found in the Criminal Code, and they are not imposing that sentence, but they are imposing this other sentence instead. They’re departing from that for the reasons they would provide.
Some safety valve provisions actually set out what those reasons can be. But you would set out the reasons and those then would be subject to appellate review.
What that does is it opens up things in a way that the Supreme Court has foreclosed. The Supreme Court has said that you can’t create constitutional exemptions, so for a mandatory minimum sentence currently, you have to declare the section unconstitutional. This would avoid that dichotomy and, as I mentioned, Parliament could say here are the criteria that you have to use. Then the appellate courts would eventually say, “No, this is not an exceptional circumstance,” or “this is an exceptional circumstance.” That’s how it would work.
Senator Oh: Thank you, witnesses. I want to follow up on a question of Senator Harder. I heard we’ve been going through this for the last 30 years. How much longer do you think we will give an unfair justice system to Indigenous women? This is directed to both of you. Short answers are fine.
Mr. Rudin: That’s a very good question, and I think the problem is when we say, “Wait,” we’re telling one discrete group of people to wait. It’s unfair to keep asking one group of people who bear the brunt of the system to wait for the rest of Canada to realize the harms that continue to be inflicted upon them.
Ms. Kaiser-Derrick: Even if that question is just kept as a statement without a question mark, but just a period — how much longer, period — I think that carries a lot of weight.
The Chair: Thank you to both of you. You have given us a lot to think about. We appreciate all the work you did to prepare to be in front of us. Thank you so much.
The Chair: Senators, for our second panel, we welcome, from the Canadian Association of Chiefs of Police, Rachel Huggins, Co-chair of the CACP Drug Advisory Committee, and Michael Rowe, member of the CACP Law Amendments Committee; and from Service de police de la Ville de Montréal, David Bertrand, Chief Inspector, Criminal Investigation Service.
Rachel Huggins, Co-chair of the CACP Drug Advisory Committee, Canadian Association of Chiefs of Police: Good afternoon, and thank you for the opportunity to address this committee on behalf of the Canadian Association of Chiefs of Police.
The CACP applauds the government’s efforts to modernize Canadian legislation to help address the disproportionate representation of Indigenous and racialized communities in Canada’s justice system.
As stated in our July 2020 report, we support the decriminalization of simple possession of illicit drugs as an effective way to reduce the public health and public safety harms associated with substance use. While there is support to divert substance users away from the criminal justice system, police across the country have maintained their pursuit of individuals associated with organized crime and criminal networks making large profits trafficking and producing dangerous, illicit substances.
Currently, under the Controlled Drugs and Substances Act, mandatory minimum sentences apply only to serious drug trafficking, production and import/export offences where public safety is at risk. The use of mandatory minimum sentences is considered when there are aggravating health and safety factors such as an offence involving the use of a weapon or threat of violence and production operations that constitute a potential security, health or safety hazard to persons under the age of 18.
We believe the use of aggravating factors applied to mandatory minimum sentences allows police and the court system to focus on those who are driven by monetary gain and who are putting communities in harm’s way rather than those who commit drug offences to support their drug use.
Therefore, diversion is an important theme of our submission today. Diversion means ensuring that the unique circumstances of a specific offence and offender are considered by a judge when determining an appropriate sentence. It means distinguishing between vulnerable people committing minor offences who need to be oriented to pathways of care from criminals committing serious offences. Diversion also provides opportunities to reduce recidivism and ancillary crimes.
It’s important to note that diversion at the police or court level can only be successful if there is an investment in community capacity and resources to support the availability and integration of health and social programs. The basic principles of this modernized approach of aggravating factor guidelines that have been adopted for serious drug offences could conceivably be applied to other crimes such as those involving firearms.
To speak more about this, I now invite my colleague Michael Rowe to address the committee.
Michael Rowe, member of the CACP Law Amendments Committee, Canadian Association of Chiefs of Police: Good afternoon, everyone.
The Canadian Association of Chiefs of Police and police in Canada support the primary objectives of mandatory minimum penalties to ensure consistency in sentencing, to protect the public and to discourage others from engaging in similar conduct.
For police officers, victims of crime, members of the public and even the offenders themselves, the circumstances which result in a criminal charge for most firearms offences often result in a real threat to physical safety, exposure to stress and trauma — which has a lasting impact on mental health — and the erosion of public safety.
In my experience as a police officer responsible for preventing and investigating gang violence, the following firearms offences for which the mandatory minimum penalties are recommended to be repealed hold significant value when addressing public safety and gun-related violence. They are: Using a firearm or imitation firearm in the commission of an offence, possession of a prohibited or restricted firearm with ammunition and discharging a firearm with intent or recklessly.
The mandatory minimum penalties assigned to these sections of the Criminal Code create a meaningful legal condemnation of the decision to unlawfully pick up a firearm and reflect the important distinction between offences involving firearms and those that do not.
Rather than repealing mandatory minimum penalties for serious offences that have a direct impact on public safety, Parliament could provide the judiciary with additional powers via a clause or safety valve, something other countries with mandatory minimum penalties have but that is currently absent in Canada. This remedy would allow for the objectives of mandatory minimum penalties to be met, especially for firearms offences that present a real threat to public safety. It would also establish judicial discretion to individually assess each offence and offender to determine if the mandatory minimum penalty is appropriate.
Finally, this approach would reduce the need to rely on a reasonable hypothetical test to test the impact of mandatory minimum penalties on outlying cases. Imagined offenders or reasonable hypothetical arguments often reduce the significance of firearms offences to regulatory infractions. This can be frustrating for police officers, who see the very real impact that unlawfully possessing a loaded handgun, the using of a firearm or an imitation firearm to commit another crime or discharging live ammunition has on the safety of communities across Canada.
In conclusion, the Canadian Association of Chiefs of Police recommends proceeding with the decriminalization of the possession of certain amounts of illicit drugs. The CACP also supports maintaining mandatory minimum sentences for serious firearms offences that warrant them and adding a legislative safety valve that provides sentencing judges with the opportunity to consider the individual circumstances of the offence and the offender to determine if the mandatory minimum penalty is appropriate or if an individual can be diverted from the justice system toward an alternative pathway. Thank you very much.
The Chair: Thank you.
[Translation]
David Bertrand, Chief Inspector, Criminal Investigation Service, Service de police de la Ville de Montréal: Hello, everyone.
Thank you for this invitation to share the SPVM’s efforts to ensure public safety on a daily basis.
The City of Montreal is a major city in Canada and is often compared to other large North American cities like Toronto. For a few years now, violent incidents involving firearms have been on the rise.
We’re aware that, like us, the government is making efforts to adapt and modernize legislation to ensure a safe living environment, while taking into account the specifics of the very makeup of the population.
We believe that Montreal remains a safe city, and we are working hard to ensure the safety of Montrealers. However, several things must be noted, particularly that illegal firearms have been easier to access in recent years. Even gun traffickers sometimes openly advertise in the community; there’s an increased presence of firearms among young people. We are also seeing a sense of impunity, a well-rooted weapons culture and value placed on gun ownership, not to mention that it is a show of strength that is valued and promoted within criminal groups.
In short, all these elements partly explain this appetite for firearms and the increase we’re seeing in violent incidents involving firearms. As a result, we need to work more to reduce that sense of impunity among people who use firearms. These criminals need to understand the major consequences of their use on direct and indirect victims. Many suffer major and even permanent consequences, both psychological and physiological.
Several investments have already been made to develop strategies to combat this situation. That’s why we are reiterating the importance of sending a strong message to the public about the priority processing of these cases, not only by our organization, but also by all justice system stakeholders. Putting the lives of several people in danger is a serious crime, and the sentence must reflect that severity.
While one of the goals of Bill C-5 is to reduce the burden on the justice and prison systems, in addition to reducing the overrepresentation of certain identifiable groups, including Indigenous people and black people, abolishing mandatory minimum sentences will not necessarily have the desired effect, and efforts to achieve such goals should instead focus on the real social causes linked to this reality. Mandatory minimum sentences should be a tool to harmonize sentences and maintain public confidence in the justice system in cases of serious gun crimes that pose a real danger to life.
We therefore think that maintaining them is desirable, but we believe that adding a residual discretion would, in exceptional cases, make it possible to impose a sentence that is less than the mandatory minimum, which would meet the legislative objectives. We’re aware that there may be circumstances where an alternative sentence may be appropriate, rather than the mandatory minimum.
You’ll understand that I focused on offences involving firearms, but we can’t forget the impact of mandatory minimum sentences on serious drug offences. Although we recognize that some offences, such as simple possession, are associated with issues such as addiction, which are more health-related, serious offences such as trafficking, importing, exporting and producing are often the work of criminal organizations that are motivated primarily by greed.
Once again, eliminating mandatory minimum sentences would have an impact on the public’s perception of the seriousness of these crimes and, at the same time, lead to a trivialization and even a sense of impunity among those who engage in this type of activity. The drug market is a very lucrative market, and other types of crime are linked to it, whether it’s buying a gun on the illegal market, fraud, money laundering and even crimes against the person, such as extortion, intimidation, assault, and so on. In short, the impact is felt more broadly than just drug-related offences.
Expanding eligibility for conditional sentences to a wider range of criminal offences may have a negative impact not only on public confidence in the justice system, but particularly on complainants and victims who want to co-operate with the system. By reducing the likelihood of incarceration, the consequences of the offence are less apparent and may reduce a victim’s willingness to go through the process when making a complaint.
When we think that denunciation can sometimes prevent another crime from being committed, we must instead demonstrate to the public our real desire to ensure their safety and our willingness to punish the offender in a manner that takes into account the seriousness of their crime, especially when it comes to offences such as sexual assault and human trafficking, which have serious and permanent consequences for the victims.
In short, we believe that maintaining mandatory minimum sentences for firearms offences is essential in the fight against gun violence, in order to send a clear message about the seriousness of these crimes and the resulting sentence, and to reflect the public’s strong disapproval of them. This also applies to serious drug offences. Finally, we’re of the view that it is not desirable to expand eligibility for conditional sentences.
In closing, I’d like to reiterate that we’re working hard to foster closer ties with the communities that are at the heart of this bill. We have a liaison officer dedicated specifically to Indigenous communities, and we have community development advisors in targeted neighbourhoods to implement various prevention strategies for youth and to work with community partners. We believe that it is the continuation of these types of actions that is beneficial, rather than the abolition of mandatory minimum sentences or expansion of eligibility for conditional sentences.
Thank you.
The Chair: Thank you, Mr. Bertrand. I have a question for Ms. Huggins and Mr. Rowe.
[English]
What have your experiences been, as chiefs of police, with the effectiveness of mandatory minimums? We know what the data tell us, but we would like to hear your own experience on the ground. In your work, do people who have been arrested even know about mandatory minimums? We’ll start with you, Ms. Huggins.
Ms. Huggins: Thank you for the question. I’m going to have to defer the question to my colleague, Mr. Rowe. He is the operational person.
Mr. Rowe: Thank you very much for the question. I spent a large portion of my career investigating violent crimes, gang violence, gun violence and, most recently, leading a major task force that dealt with our gang conflict.
I’ll be honest with you: A lot of our gang members are people who are involved in violent crime using firearms, and they are not considering the impacts of their decisions as they are making them. Quite often, they are motivated by profit or other ideals that aren’t necessarily allowing them to think that far into the future.
In my experience, where I have seen the benefit of strong sentences and mandatory minimum penalties, which are really a representation of that fit and proper sentence, is in the perception of the public that justice is being done. When our public is seeing, for example, a drive-by shooting, which can have a huge impact on a community when ammunition is seemingly randomly shot in a neighbourhood, it has a huge impact on the feeling of safety in that community. The people who live there on that street and have now experienced that expect the sentence to reflect the dramatic impact that action could have had.
It is the same with the situation of possession of a prohibited firearm, a handgun that is loaded. That in itself is an offence that is often used, in my investigations and in my experience, when we’re able to intercept a hit man or a contracted killer involved in the gang conflict who has not yet had a chance to complete their job and has not yet had a chance to take a life. We’re able to charge them with that offence. Once again, in preventing a homicide and preventing that violent act from occurring, in my experience, the public expects a substantial sentence to be issued to show that condemnation of that person’s decision to pick up a gun versus the decision of somebody else to not pick up an unlawfully possessed firearm.
The Chair: Thank you. Don’t you think the sentences already cover that kind of action? Is there a necessity for mandatory minimums?
Mr. Rowe: In my opinion and in my experience, the benefit of having mandatory minimums is that it allows for a base sentence to be established. It reflects that Parliament has established what they believe is a fit and proper sentence for that offence. Then, especially with the introduction of a safety valve, which I know has been discussed a lot by this committee, at that point, the judge can consider whether the specific circumstances of that offender might require a deviation. However, that basic, baseline sentence has been established as what society would see as the fit and proper sentence for that crime.
The Chair: Thank you very much.
Senator Dalphond: Thank you to the witnesses and the representatives of the enforcing authorities. Your role is critical in our society, and it’s not an easy role to play. I thank you for that.
[Translation]
My question is for Chief Inspector Bertrand. You talked about the need to maintain minimum sentences for gun possession. Am I wrong in thinking that the bill proposes to eliminate the minimum sentence for possession of weapons only in cases where a hunting weapon is used, namely a non-prohibited, non-restricted weapon for which a permit can be obtained?
I live in Montreal, and with the recent explosion of violence, there was a murder not very far from my home. Based on your experience, were the weapons used hunting weapons, or were they revolvers, handguns or semi-automatic weapons?
Mr. Bertrand: The vast majority of firearms incidents involve handguns.
What we want to work on is the perception that mandatory sentences are being maintained. We want to work on the criminal’s sense of impunity at two levels. The sense of impunity is the certainty of being caught when committing a crime and the certainty of suffering the consequences.
What we are seeing on the ground right now are people who are walking around with guns and who are no longer afraid of getting caught. Why are we seeing that? First, because informants on the ground are telling us that this is the reality. As well, some people are caught with two, three, sometimes four firearms in the same vehicle, which was unthinkable a few years ago.
People don’t leave their firearms at the scene of the crime anymore because they’re not afraid of getting caught with their guns after the crime. That’s what we’re seeing now.
When I talk about a sense of impunity, I’m talking about people pulling out a gun without necessarily knowing what crime they’ll commit with it. In the evening, events occur and violence escalates, either on social media or in person. They’re going to run into someone who said the wrong thing to them and, with the escalation of violence, there are going to be incidents involving guns. In the past, people were so afraid to walk around with a gun that, as soon as the offence was committed, they would leave the gun at the scene to make sure they didn’t get caught with the gun in their possession.
So, what we need to work on is really this sense of impunity in firearms possession that results in violence.
Senator Dalphond: You are describing a worrisome phenomenon, but all these minimum sentences currently exist. Despite that, guns are easy to find on the streets of Montreal. There are even young people who walk into bars or nightclubs with guns. I’ve even heard stories like the one where a young man opened his jacket to show that he had a weapon, as if to show he was a real man or something.
Doesn’t that prove that minimum sentences are entirely ineffective, or that they may have some effectiveness, but that what’s lacking is the police’s ability to intervene with greater control and oversight?
Mr. Bertrand: I think it’s all the solutions you just described. All stakeholders need to work together. Yes, we need to have police officers arresting offenders and sending a clear message to those who intend to walk around with a firearm. We need to send the same clear message to criminals that, yes, there are sentences that come with people getting caught.
Actually, keeping minimum sentences is not the only solution, but it’s part of a series of solutions.
[English]
Senator Batters: Thanks to all of our witnesses here today.
First of all, I have a question for Inspector Rowe. I want to talk more about this legislative clause or safety valve that you’ve referred to. We have had a little bit of discussion about it, but I want to get a bit more into that.
It’s basically a legislative clause for exceptional circumstances, and it has been used in other jurisdictions. You suggest that a similar clause could be used in our sentencing laws in cases where there are mandatory minimum penalties in place rather than just simply scrapping mandatory minimums altogether. The Minister of Justice, when he justified his need for this bill, he also illustrated it with very exceptional circumstances, like the example of an impoverished Indigenous mother who’s struggling to put food on the table.
From your understanding, Inspector Rowe, are those the types of circumstances that have been captured by a safety valve clause in other jurisdictions?
Mr. Rowe: Thank you very much for the question. I’m unable to speak about the specific cases in other jurisdictions, but I know, for example, the United Kingdom has very strict firearms laws there, and they also have very severe mandatory minimum penalties regarding firearms offences. In particular, they also have a legislated safety valve, a clause in place that allows, in exceptional circumstances, the judiciary to consider the circumstances of the offence and the offender in considering their sentencing. This eliminates the argument that is often used in our courts of the reasonable hypothetical or the imagined offender. That’s where the courts are able to consider a reasonable hypothetical scenario where a similar offence would happen. The frustration for police, as I mentioned earlier, is those often become distilled down to what is essentially a regulatory infraction.
In my experience and the experience of a lot of my counterparts across the country, these firearms offences that are being listed in order for the mandatory minimum penalties to be repealed are very important offences for us when we’re out actually combatting gun violence and gang violence on our streets and in our communities, whether rural or urban, in Vancouver or the Prairies or the East Coast. These are our bread-and-butter offences, the ability to charge somebody for unlawfully possessing a handgun with ammunition.
Where the importance of that offence is lost is considering that decision to pick up that firearm and take it out. As the senator mentioned earlier, young people are taking them out and brazenly showing them off. That’s incredibly dangerous, not only for the community around them and for the police officers who are then forced to respond to that situation, but also for the offenders themselves. The presence of a loaded firearm exponentially increases the risk that they face, and we believe there needs to be a strong statement from both the government and the judiciary that this behaviour is not acceptable. Our hope is that would then allow somebody to reconsider the decision to pick up a firearm and would help increase the safety in our communities across Canada.
Senator Batters: Thank you very much for that. I’m getting a little further into the firearms crimes and their unique impact on public safety. Can you tell me more about why you think having an actually established sentencing range, including a mandatory minimum, is specifically important for firearms offences? What do you foresee happening if those mandatory minimums are actually removed as would be the case with Bill C-5?
Mr. Rowe: In particular, I believe they are important for firearms offences because, as my colleague from Montreal mentioned, we are seeing a proliferation of firearms on our streets. We are seeing lower-level drug traffickers, people who typically in the past — even within my career — wouldn’t have possessed a firearm, now possessing a firearm or a handgun. I think a big part of that is there is increased availability of firearms. The proliferation of unlawfully obtained firearms or privately made firearms is increasing. But just like the rationale for having a mandatory minimum penalty for an offence such as homicide, Canadians believe that there should be a minimum penalty. They believe that there should be a line in the sand or a base penalty for very serious offences.
I would respectfully ask that we consider these firearms offences as being that significant because, as I said, a lot of these offences are the ones that we as police are able to use to stop the gun violence from occurring before it happens.
Senator Pate: Thank you very much to our witnesses. Thank you for the work you do every day.
I would like to ask this question of Ms. Huggins and Mr. Rowe in particular, but if Mr. Bertrand wants to weigh in as well, that would be great.
Here and also before the Justice Committee in the House of Commons, you talked about the example of the mechanism that allows judges to not impose mandatory minimum penalties in certain situations. We were told by a witness last week that New Zealand has also implemented this. I’m curious whether you have had conversations with police chiefs in other jurisdictions and how that has worked in those jurisdictions. Why is there support for it beyond what you already said? Thank you.
Mr. Rowe: Thank you very much for the question.
I haven’t had discussions with police chiefs per se, but I have had a number of discussions with police officers from around the world. I’ve been fortunate to work in joint forces operations with police officers from a number of different countries. Consistently, being police, we are typically favourable toward mandatory minimum sentences where they are appropriate and where they have an impact.
I think the benefit of having the safety valve or the ability for the judiciary to make an exception in exceptional circumstances is that it gives that mandatory minimum penalty credibility. The public is aware then that if there is an outlying circumstance, if there is a situation where a person doesn’t deserve that mandatory minimum penalty, then a miscarriage of justice will not occur. Their situation will be considered, and the judiciary will be able to react to that and provide an appropriate sentence. However, the sentences that will occur will then reflect that mandatory minimum penalty.
So the reason I advocate for it as a potential solution and the reason I believe it’s popular around the world in a number of different jurisdictions is because not only does it address the issue of outlying cases within a mandatory minimum penalty system, but, as I said, it also brings credibility to that penalty and shows that it’s being applied reasonably and fairly.
Senator Pate: I was wondering if you had any examples like the ones that a number of police officers have raised with me over the decades I have done work in this area, which is the number of times they have gone to investigate violence against women in situations where women have used violence to repel a perpetrator against them but often had to pick up a weapon because if they engaged in hand-to-hand combat, they would likely end up dead. How often have you seen that situation where you then had to lay charges against them? Can you speak to some of those examples if you have them? If you don’t have them, that’s okay.
Mr. Rowe: In British Columbia, we have a charge approval process with our Crown counsel. So for us in B.C., the police don’t lay the charge, the Crown does. In those circumstances, we will of course investigate the circumstances. We will provide as much support to everyone involved. In the case of a woman who is forced to defend herself and potentially use a weapon to defend herself, naturally, all of that would be included in our recommendation to the Crown. This would be an excellent example. Should the Crown decide to proceed with that charge, then that would be the textbook example of an opportunity for a judge to utilize the safety valve and to say, no, the mandatory minimum penalty isn’t appropriate here, this is why and therefore I’m going to apply this penalty.
However, it would also allow that balance between those types of tragic situations where somebody is put in an impossible situation to make an impossible choice versus the gang member or the drug dealer who is picking up a firearm simply to increase their profits or protect their business and is making that more conscious decision to do so.
Senator Simons: Inspector Rowe, I was going to ask you to explain your support for the — I guess we don’t want to call it the “faint hope clause” — safety valve. You explained it so beautifully to Senator Pate that I’m going to ask a different question.
We have been talking a lot over the course of these hearings about the over-incarceration of Indigenous people, particularly Indigenous women. I’m wondering if each of the three of you can tell me from your own experience as police officers, and in your observation of your colleagues, what some of the factors are that you think might be leading to the excessive arrests and overcharging of Indigenous offenders. Have you in your own experiences had moments where you have seen examples of what you, in retrospect, would see as systemic racism?
I’m really curious to know what we need to do first and foremost to keep so many people from entering the criminal justice system when there might be a better path for them.
[Translation]
Mr. Bertrand: Yes, there was a question about the overrepresentation of Indigenous women and the Indigenous community in the correctional system. That’s why the work was done at the source. In Montreal, there’s a phenomenon of homelessness within the Indigenous community. That’s where we go to support them. They’re offered help on the ground. Efforts are made to house them, to monitor those with addictions, to offer them help and resources, to prevent these people, who often sleep outside in parks and occasionally use intoxicants, from becoming involved in crimes, violent or not. The work must be done at the source, offering them shelter and having resources dedicated entirely to that type of citizen.
[English]
Senator Simons: Thank you. Ms. Huggins and Mr. Rowe, would you like to add anything to that?
Ms. Huggins: I was just going to add to what my colleague said that, similarly to homelessness, substance-use issues are factors that may be increasingly or collectively having them come into contact with police. So addressing substance-use issues and ensuring that we have treatment and pathways for care that focus on Indigenous people and the issues they face will also help reduce their interactions with the criminal justice system.
Mr. Rowe: I think that a key component of what my colleague Ms. Huggins was discussing earlier on is the need for diversion and the ability to divert people into better pathways that will assist with mental health, with drug addiction and all the various factors, like housing, as my colleague from Montreal mentioned. All of these are issues that we are facing across Canada right now.
I think you said it best. For all of us here, our goal here is to stop people from coming into contact with police in the first place and to ensure they have the supports and systems in place so they’re not placed in a situation where they have to come into contact with the police. If we could do that, I think we would all be much better off.
Senator Simons: Do any of you have experience with diversion to drug courts? Is that something you’ve seen? Has that been able to stop the revolving door of charging the same 100 people over and over again?
Ms. Huggins: Speaking more from my academic side versus my role with the CACP, there is success with drug treatment courts. However, like my colleague Inspector Rowe said, we need more programs, better-suited programs and more ability to divert individuals. If police have viable options to help find adequate solutions rather than incarceration or entering the criminal justice system, they will definitely use them. But those resources and those health and social services need to be available for police to leverage.
Senator Simons: Thank you very much.
[Translation]
Senator Dupuis: I’d like to thank the witnesses for being here today. Mr. Rowe and Mr. Bertrand, what strikes me is that your comments overlap in terms of the increase in firearms offences and the considerable sense of impunity among those who possess firearms.
What strikes me in what you said, Mr. Rowe, is that, ultimately, the issue of sentencing has nothing to do with the people who are likely to be charged, as there’s a kind of sense of impunity and the sentencing is not an important consideration for them. It’s more about reassuring the public that we’re putting people away.
Are you telling us that, regardless of the sentence, all we’re looking for is to reassure the public, and regardless of the threshold that’s set, whether it’s judicial discretion or a set number of years, the most important thing is to reassure the public, even if the public isn’t any safer? You’re telling us that everyone is walking around with guns in their pockets and they don’t care anyway, because they know they won’t be arrested and, even if they are, they’ll do it again…. We’re not talking about rehabilitation, if I understand correctly.
Does this system work well, in your opinion? Given all the discrimination against women in the system, I have a hard time believing that it’s a system that’s working well. Am I right in believing that this system is not working well and that the entire way we address these issues needs to be reviewed?
[English]
Mr. Rowe: Thank you for the very challenging question. I’m not going to stand here and tell you that the system is perfect and that the system is as good as it could be. There’s always room to improve. I think the way we are approaching Bill C-5 is to look at it from a couple of different points of view. My colleague Ms. Huggins looked at it from the point of view of addiction and drug use. In those circumstances, the police and the CACP don’t believe that mandatory minimum penalties are necessary. There is lots of opportunity for diversion there, and there is an opportunity for decriminalization to be able to assist people to stay out of the justice system for those offences.
However, when it comes to firearms offences in particular, and other violent offences — I spent a large portion of my career as a homicide investigator and violent crime investigator — those truly shake the core of our society, both for the people who are the victims of those crimes and also the perpetrators. Their lives will likely never be the same after that. For the community around them, whether it be the family of the victims or the community immediately around them who has to explain to their children why that crime scene is set up or a family has to return home after shots have been fired on their street, they’re all very difficult things to recover from.
In my experience, gun violence is something that we are having a challenge in Canada dealing with and something that is very serious. If we, the police, are able to conduct effective enforcement of gun offences and firearms offences, then hopefully we’re stopping those firearms from being used to commit the even more serious offences.
My advocacy for maintaining mandatory minimum penalties for certain firearms offences, where appropriate, is that we are holding them up as significant offences that impact everyone in society. I’ll be the first person to admit that they impact the accused as well. That decision to pick up a firearm is one that can have grave consequences for both the accused and the people around them.
It’s not just about satisfying the public. It’s not just about putting someone away. There has to be that balance, as I’m sure all of you are well aware. We must find that balance between creating a legal condemnation of a certain action, whether it be possessing a loaded firearm or discharging a loaded firearm in our communities, and then we have to also balance that with the ability to have people gain access to services, whether it’s within our correctional services across Canada or whether it’s within the community. I think the challenge we all face here is trying to find that balance.
[Translation]
Mr. Bertrand: I entirely agree with my colleague on this. You talked about the public’s feeling of safety, they also need to be protected.
You talked about the system. I agree with Mr. Howe: the system is not perfect. Yes, there are isolated cases where people have been convicted of violent crimes and are set free. Yes, at that point, they reoffend, sometimes even in the same neighbourhood. However, those are isolated cases. In general, stakeholders in the system work to have strict sentences and to protect the public.
There’s a lot of talk about the public, but victims need to be at the centre of our directions and decisions. What we’re seeing are shots being fired on homes and on people who aren’t necessarily involved in crime. So, yes, these victims need to be made safe, but they shouldn’t get the impression that they could run into their attacker in a few weeks or a few months. So real public safety needs to be ensured. It’s not just a perception of safety. In fact, sometimes, it’s people who live in the same neighbourhood, again.
Senator Dupuis: If we’re talking about diversion for simple drug possession, what kind of training are the police going to provide if this bill is passed? You know as well as I do that there are people who are concerned about this discretion that will be given to the police. There are groups who have had bad experiences with the police.
Mr. Bertrand: I think it will be training on drug use, on addictions, on what can be done to get these people out of that environment. It’s much more a public health issue than a police issue.
Public health must be addressed in order to understand the addiction and dependency that can be developed with certain drugs. I was earlier about homelessness, all the issues related to homelessness and drug use. Police are needed on the ground who know the individuals they’re questioning.
We often talk about police street checks. It’s always the same police officers, in the same park, with the same individuals. People know each other. We need to create this proximity and this knowledge of the problems and issues that our clientele are experiencing. Beyond drug use and training, we need to provide training on addiction and the issues that this clientele faces on the street.
The Chair: Thank you.
Senator Clement: Thank you to the witnesses and congratulations on your careers. My question is for Chief Inspector Bertrand. Minimum sentences have been around for a long time. Successive governments have put them in place, but despite their existence, I don’t believe that the residents of Montreal, Quebecers or Canadians feel safer. So, the issue of perception is important. I heard you say in your comments that you would agree with judges being able to consider exceptional cases. Why are you in favour of that type of language?
Mr. Bertrand: It’s understood that there are, in fact, unusual cases, exceptional cases.
When you talk about perception and the sense of impunity, a person using a firearm when leaving home at night knows very well that they’re not one of those exceptional cases. That person goes to a bar and may commit a crime. The objective has been met. Even if there’s residual discretion and a notwithstanding clause — call it what you will — the objective is still met, because the minimum sentence is kept, and people who use a firearm to commit a crime know that they won’t be subject to an exemption in court.
Senator Clement: What do we tell residents, victims and people who don’t trust the justice system? Clearly, minimum sentences don’t build that trust. What type of dialogue do we have with the public?
Mr. Bertrand: There is dialogue, but first and foremost, there’s better support for people who want to file a complaint or who are actually victims of a shooting or gun violence. Improvements are needed to support victims in court. There are programs in Montreal to support victims of sexual exploitation. We know that this is a vulnerable clientele. There are experts who work with them, and the same needs to be done with all victims. To reassure victims, we must be present at the crime scene for 24, 48 or 72 hours after a crime is committed to meet with people and reassure the public.
People are often asked to come forward, and we see this in the messages in the media from police departments. It’s with the public’s input that we’re able to get information to catch people who use firearms. If people don’t believe in the sentence criminals can receive, they’re less likely to come forward.
The same is true for victims. Victims are at the centre of our policies and decisions. Victims need to have the perception — or at least a real belief and confidence in the system — that the individual they’re about to report, against whom they are presenting a case to the court, a case they want to pursue, will receive a real sentence and will not be able to get away with anything other than a minimum sentence. We want to gain the victim’s trust in the justice system. We know that these are vulnerable victims, and we want to make sure that they are going to make it through the trial and not withdraw their complaint or their case from the court.
Senator Clement: You talked about the real causes of crime in your comments, but you’re not talking about that now.
Mr. Bertrand: In terms of firearms, there’s currently a gun culture. We’re following the trend in other major American and North American cities. That needs to be undone. Unfortunately, we can’t put a gun culture in prison. We have to work with individuals and on the sense of impunity, because going out with a firearm is no longer considered serious. That’s what we need to address.
Senator Clement: Thank you again for your work.
The Chair: I thank the witnesses for their presentations.
(The committee adjourned.)