Criminal Code

Bill to Amend--Second Reading--Debate Continued

November 17, 2020


Honourable senators, I rise to speak to Bill S-207, an act to amend the Criminal Code, dealing with the independence of the judiciary.

I support the bill and I commend my colleague Senator Pate for tabling it and for sharing her extensive knowledge and practical experience in the justice system, as well as in the complex world of mandatory minimum sentencing.

I want to also commend Senators Boyer and Simons, who, in their statements on this bill, described some of the bleak human realities associated with mandatory sentences.

I would also like to thank my colleague Senator Moodie for adjusting the schedule to allow me to make this statement this evening.

When the first Criminal Code was enacted in 1892, only six offences carried a minimum term of imprisonment. These offences included engaging in a prizefight, three months; fraud upon the government, one month; stealing post letter bags, three years; stealing post letters, three years; stopping the mail with intent to rob, five years; and corruption in municipal affairs, one month. The bulk of these early mandatory minimum penalties were directed at enforcing the legitimacy of public institutions. Since then, 72 minimum penalty provisions have evolved, which focus primarily on offences against the person.

In a broader sense, mandatory sentencing is an obvious answer to those who worry about societies being “soft on crime” and it has been, perhaps mistakenly, associated with making the sentence fit the crime. I can see why this became attractive to some lawmakers and those who see punishment purely in retributive terms. This is particularly the case for victims and their families.

A mandatory 25-year sentence is designed to be both a deterrent and a hard and consistently applied punishment for those convicted of certain crimes.

And a life sentence really is a life sentence. If there is parole eligibility after 25 years, it does not guarantee release at 25 years. It is intentionally harsh. Everyone is supposed to understand the rules of the game. One size fits all. Lock the door and throw away the key, as the saying goes.

However, colleagues, the reason we are considering this bill today is that, on the other side of the equation, the antecedents and nature of crimes associated with mandatory minimums are a great deal more complex, and in some cases simple mechanistic approaches make no sense — for example, where an accused has been a long-suffering victim of abuse and violence.

We all know, colleagues, that crimes occur in the context of a complex social and economic fabric — a fabric that is sometimes torn, battered and bloodied, just like the many victims with a long history of abuse who are worn down and fearful for their lives, and perhaps more so the lives of their kids, who eventually, often fearful for their lives, strike back.

We heard graphic examples of this in the recent statements of Senator Boyer and Senator Simons. And these cases, with all their brutality and messiness, force us to ask ourselves whether a mandatory punishment really does fit the crime, whether “one‑size-fits-all” really makes sense.

A number of judges have considered this too. In more than 130 cases, Canadian courts have ruled that various mandatory minimum penalties infringe the constitutional rights of Canadians.

On top of this, we know that criminalization causes significant social harms to individuals and their families, particularly to those already victimized within their social context. In Canada, 44% of women in federal prisons are now Indigenous and more than half are racialized.

As Senator Pate reminded us recently, the harshest mandatory minimum penalty in the Criminal Code is life in prison. She also told us that in the past decade, 45% of women sentenced to life in prison were Indigenous. That is set in a context in which 86% of women in federal prisons have histories of physical and/or sexual abuse.

This is something that bears repeating. In the past decade, 45% of women sentenced to life in prison were Indigenous, in a context in which 86% of women in federal prisons have histories of physical and/or sexual abuse.

Little wonder that, in 2015, the government’s election platform included a promise to implement the Calls to Action of the Truth and Reconciliation Commission, including Call to Action No. 30, to eliminate the overrepresentation of Indigenous peoples in prisons by 2025, and Call to Action No. 32 to eliminate mandatory minimum penalties.

The Law Reform Commission of Canada has pointed out that longer sentences with harsher penalties are not an effective means of preventing crimes. In fact, the evidence suggests that individuals serving custodial sentences that include time in prison are more likely to be repeat offenders than those serving non-custodial sentences that mandate community-based programs and options.

In Ontario alone, the rate of recidivism within two years of completing a prison sentence of six months or more was 35% between 2015 and 2016. That is a rate that has been dropping. But it remains the case that community-based sentences with a focus on intervention and rehabilitation showed a recidivism rate of only 22.6% in the same year.

As you know, colleagues, mandatory minimum penalties limit judges in their ability to be more lenient with sentencing in appropriate cases. They do not allow for community-based sentencing. If an individual is convicted, a mandatory minimum means time in prison, which not only increases the societal and mental risk of harms to the inmate but is more costly than alternative sentencing that focuses on rehabilitation.

Colleagues, Bill S-207 would restore judicial discretion in sentencing all crimes that have mandatory minimum penalties attached to them, of which there are now around 72. So, colleagues, the bill would not eliminate minimum penalties. They would continue to stay in effect. Judges will still be able to impose a mandatory minimum penalty or even a harsher sentence if they find it appropriate.

Giving judges the discretion to impose a different sentence would ensure that justice is being done and that an appropriate sentence is more closely aligned with the nature and context of the crime.

Senator Pate also reminds us that individuals with significant mental health issues are among those disproportionately affected by mandatory minimums. The recidivism rates I spoke about earlier suggest that a public health approach to the issue should be considered in some cases, including the use of alternative sentencing focusing on rehabilitation rather than punishment.

In conclusion, colleagues, we are talking about an issue that has attracted significant study, raised a lot of concerns and attracted judicial consideration. The Supreme Court of Canada has stated that “Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes . . . .”

In R. v Lloyd, the majority decision of the Supreme Court noted that:

. . . mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable.

Some penalties have already been struck down for incompatibility with the Charter, such as in R. v. Nur. In this case, the Supreme Court noted that mandatory minimum sentences function as a “blunt instrument” that complicate proportionality in sentencing.

Our courts, including the Supreme Court of Canada, have struck down about 25 of Canada’s 72 mandatory minimum penalties, meaning that they are no longer in effect in at least one province or territory.

Colleagues, it is time to address the issues and move forward. Let us move to a system in which one of the original purposes of mandatory minimums is realized — that punishment should bear some relationship to the nature of crimes, but in the context of this bill, including their social and biographical context.

I hope you will join me in supporting Bill S-207. I look forward to continued debate on this enormously important matter. Thank you for your attention and consideration.

Hon. Rosemary Moodie

Honourable senators, I rise to speak to Bill S-207, An Act to amend the Criminal Code (independence of the judiciary), a bill that amends the Criminal Code to give judges more discretion not to impose minimum sentences when they consider it just and reasonable.

First, I would like to begin by thanking my honourable colleague Senator Kim Pate for reintroducing this bill. This is one of the many ways she continues to fight for a Canada that is more just. We all owe her a debt of gratitude.

As I said before, this bill addresses the need to restore judicial discretion to our legal system after years of regressive reform. I support it because it addresses the human and social cost of imposing mandatory minimum sentences.

Colleagues, we have the results of decades of research available to us and the evidence is clear: Mandatory minimum sentences do not deter crime, they do not reduce recidivism rates and they do not make our communities any safer.

Colleagues, let us discuss and consider the evidence before us. We can recall that the Supreme Court of Canada, along with numerous judicial bodies, commissions, parliamentary committees and organizations, have all conducted and concluded that they do not deter crime.

As a Parliament, we studied this issue and reached the same conclusion. In my previous intervention, I mentioned the hours of documented evidence presented at parliamentary hearings that support this conclusion, along with earlier documentation by our Library of Parliament in 2007, all that identified the potential constitutional difficulties, lack of utility and negative impacts of these statements.

Our Department of Justice also has data that tells us that mandatory minimum sentences are ineffective. In 2016, the department commissioned a study on the impacts of minimum sentences. You will recall the review concluded that harsh penalties like mandatory minimum sentences are ineffective in deterring crime and noted that experienced practitioners and social science researchers all agree that mandatory penalties are a bad idea for many practical and policy reasons.

Honourable senators, Bill S-207 addresses a major concern in our judicial system. As currently set up, a judge has no ability to develop a fair sentence based on the individual’s specific circumstances. In our current system, judges are forced to impose minimum sentences. Our current system is blind to the implications of such a decision. Simply put, our judicial system is blind to the human, social and financial costs of imposing mandatory minimum sentences.

Let me once again focus on these costs. I begin by borrowing the words of the researcher Jessica Hardy. She notes:

Families can face numerous challenges that effect the family as a whole and each family member individually. Arguably, one of the most difficult challenges a family may face is when one family member is removed from the family either temporarily or permanently.

For a moment, let’s focus on children. The impact of incarcerated parents on dependent children is both profound and complex.

We already know that it is very difficult to find the exact numbers, as Canada has not been very good at collecting this data in the past, but a 2007 study by the Correctional Service Canada estimates that at least 4.6% of Canadian children, a number that approximates 350,000 children, are impacted by the incarceration of their parents.

What do these children undergo, you may ask?

Well, colleagues, you have heard me say before in this chamber that children of incarcerated parents face significant problems. They face psychological stress, economic hardship, exposure to criminal activity, anti-social behaviour and difficulties at school. Incarceration of a parent poses a threat to a child’s emotional, physical, educational and financial well-being.

Some of the well-recognized potential risks for children, especially those with a mother who has been incarcerated, include child criminal behaviour, cycles of intergenerational criminal behaviour and mental health issues such as depression, anxiety, post-traumatic stress disorder and childhood aggression.

There is a well-established body of evidence demonstrating that children exposed to multiple adverse childhood experiences through their early development have an increased risk of severe depression that leads into adulthood. In fact, the most common side effect seen when a parent is incarcerated is that of anti-social behaviour, including criminal activity and persistent dishonesty.

Some also believe that the exposure to incarceration of a parent can reduce a child’s resiliency and ability to cope with negative experiences later in life. We see increased drug use, low educational achievement, increased risk of school suspension and often expulsion.

Then, of course, there are restricted financial resources. The child is often exposed to precarious housing, including an increased risk of homelessness and food insecurity.

All segments of society do not share the burden of parental incarceration equally. The negative effects of parental incarceration on children are felt almost entirely by children from the most disadvantaged families: communities of colour, racialized communities being at increased risk and Indigenous communities also being at increased risk. These communities are overrepresented in our prison systems because of the impact of mandatory minimum sentences. For them, the risk is always increasing and the odds are always worsening.

If we consider the intersectionality of the effects of parental incarceration on families with other disadvantages, such as living in poverty, being a racial or ethnic minority or experiencing mental illness, we see an even greater impact of the overall risks and negative effects on family members.

There is another significant issue, an issue that has come sharply into focus in the past few months. I am referring to the systemic racism that is pervasive in our institutions. The bill before us, Bill S-207, would help address the systemic racism in our justice system.

Honourable senators may recall that the Parliamentary Black Caucus released a statement in the summer. One of the things the statement called for was the elimination of mandatory minimum sentences. This is because the practice perpetuates systemic racism. We need look no further than the data provided by Justice Canada. To begin with, Black and Indigenous offenders are overrepresented in admissions to federal custody.

According to data provided by Justice Canada, in 2017, 2.9% of the total Canadian population identified as Black, 4.3% as Indigenous and 16.2% as other visible minorities. Over a 10-year study period between the fiscal years 2007-08 to 2016-17, Indigenous offenders comprised 23% of the federal offender population at admission, while Blacks and other visible minorities comprised about 9% each.

Honourable senators, let us dig deeper into the statistics. Over the 10-year study period that Justice Canada considered, the department found that Black and other visible minority offenders are more likely to be admitted to federal custody for an offence punishable by a mandatory minimum penalty. Almost 39% of Black offenders were admitted with a conviction for an offence punishable by a mandatory minimum penalty. For other visible minorities, the rate was almost 48%. Not only are visible minorities overrepresented in federal custody, they are also more likely to be there under a mandatory minimum penalty.

I shudder to think of the effect this has on their families, and particularly on the children of these families. These numbers tell a story; a story that should deeply trouble us as a society. We have known about this for a long time, and should have acted upon it a long time ago.

With the information we have about the effects of mandatory minimum penalties, especially on children and on racial and ethnic minorities, can we conclude that justice is being done? Not at all, colleagues. Our justice system needs reform, and we need to give our judiciary the ability to exercise discretion in mandatory sentencing to address some of the challenges that the system faces.

Judicial discretion would allow for the consideration of the impact of incarceration on dependent children and other sectors of our society. Judicial discretion would allow for consideration to reduce or delay sentencing where appropriate and in situations when significant harm to others, such as dependent children, could result.

In my opinion, senators, this bill addresses a flaw in our current system that unjustly punishes children for their parents’ actions. This is a flaw that disproportionately affects racialized Canadians. This is a flaw, honourable senators, that continues to perpetuate systemic racism.

In conclusion, I would like to thank Senator Pate for her leadership and tireless work in this area. I would also encourage you, senators, to give serious consideration to the disproportionate impact of mandatory minimum sentences on children and youth in your communities as you consider how to vote on Bill S-207.