Honourable senators, I rise today in support of Senator Pate’s very important bill, Bill S-207, An Act to amend the Criminal Code (independence of the judiciary). Specifically, this bill aims to remove all mandatory penalties in our country’s legal system, and in so doing restore the role of sentencing discretion to judicial officers.

The imposition of mandatory minimums precludes considerations of aggravating and mitigating circumstances. In this way, mandatory minimums undermine the founding principles of sentencing outlined in section 7.18 of the Criminal Code:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society. . . .

To quote Senator Pate:

Over fifty years of evidence, including findings of the Supreme Court of Canada, make it clear that mandatory minimum penalties do not deter crime. . .

Further, she goes on to say:

Mandatory sentences fail to respond to the individual and community circumstances in which crime exists and create more harm.

Our country’s 1997 self-defence review was a pivotal moment not just in Canada’s legal history, but in illustrating our nation’s steadfast commitment to true justice for all Canadians. In her ruling, Judge Lynn Ratushny implored the need for changes to police and prosecutorial practices, particularly in circumstances concerning charges of homicide and Criminal Code sentencing for second-degree murder. Ratushny’s review was in response to the Supreme Court’s 1990 Lavallee decision, which laid the foundation for the legal recognition of self-defence law in Canada. In her ruling, Judge Ratushny emphasized the importance of the facts of a case affecting a woman’s sentence rather than her conviction. Further, Judge Ratushny lamented the notion of ministers of the Crown interfering in any way with the decisions of judges and jurors. As she said:

. . . it is a basic principle that the courts, not the Crown, determine the guilt or innocence of the accused and set sentences.

Honourable senators, as you have all heard many times from Senator Pate’s and Senator Simons’s powerful speeches, self-defence review law is perhaps most applicable in case law involving considerations for and illustrating the importance of upholding judicial discretion. Hasty sentencing, which lacks critical and careful circumstantial consideration, profoundly impacts members of the Black community with whom the law far too often comes into conflict.

Across our provinces and territories, far too many women, men and children languish in jails and prison cells. The racial composition of those who occupy these cells paints the picture of the stark reality of racism in Canada. It is nothing short of shameful that still in 2020 racialized people — Indigenous and Black women, men and children — are grossly overrepresented in our legal and carceral systems.

As a member of the Parliamentary Black Caucus, I echo our call, last heard in June, which demanded that mandatory minimum penalties be eliminated. To highlight the words of my fellow member, New Democratic Party Member of Parliament Matthew Green:

The Black community has been on the receiving end of this injustice for generations. We want the ink to become dry on legislation that would provide real and meaningful steps toward dismantling anti-Black and anti-Indigenous racism in the justice system.

Honourable senators, even the current Minister of Justice and Attorney General of Canada, David Lametti, concedes the high volume of mandatory minimum penalties in the Criminal Code is something that has been identified by several experts and community members as a contributor to systemic discrimination in the justice system. Criminality is a reflection of social failure. If a person commits a crime, there is a strong possibility they were failed by social systems which we are falsely told to believe will ensure their safety and stability. In fact, in one of the sections of my booklet on systemic racism, The Invisible Visible Minority, recognizes the role of institutionalization and criminalization as being direct perpetrators of racial injustice.

Honourable senators, systemic racism is a cycle. One of the most common ways a racialized person can become inescapably trapped within its vicious clutches is when they first enter the legal and carceral systems. Mandatory minimums are a critical part of this. A person is charged, and maybe their charges are related to their mental health, maybe they are poor and their charges were related to survival or maybe they were anaesthetizing themselves to their reality and, solely because of circumstances and systemic bias, they end up being charged for doing so.

As our colleagues Senator Lankin and Senator Pate have amplified, most recent figures tell us that 44% of federally sentenced women are Indigenous, and more than half of the women who account for that entire population are racialized.

What is more, in the last 10 years, 45% of women who were given life sentences were Indigenous. Even more troubling is the fact that over 86% of women in federal prisons have histories of either physical or sexual abuse. To that I say shame; shame on our country’s leaders for standing idly by while the most marginalized, victimized and traumatized members of our collective society are criminalized, institutionalized and systematically retraumatized.

Not only are carceral institutions incredibly traumatizing, toxic and punitive environments, they also impose a cruel state of social and familial isolation. Women in particular often describe the most tortuous part of their imprisonment as being forcibly separated from their children and loved ones. This directly impacts women and their children’s well-being, and leads to what can become a permanent familial disconnection.

Honourable senators, I encourage you all to think just for a moment of a child being taken from their mother and how that experience would have a profound and lifelong impact on their psyches. Think of the separation of the child from their mother. What is more, as has been highlighted by our colleague Senator Pate, the Parliamentary Budget Officer has released estimates that record upward of $8.3 million of savings if judicial officers were granted the leeway to determine lesser sentences on charges for murder.

Honourable senators, particularly during the financial crisis that continues to loom over us in the midst of a pandemic, which has no clear end in sight, these national savings cannot be overlooked, nor should their significance be underestimated.

Contrary to some perspectives, these ideas are not new or inherently radical. Indeed, in his assessment, the Parliamentary Budget Officer emphasized international examples of countries which already have similar laws, namely our allies in the Commonwealth.

Current reports suggest that a Canadian convicted of first-degree murder will spend an average time of 26.4 years in jail, as opposed to 11 years in New Zealand, 14.4 years in England, and 14.8 years in Australia.

I ask you all to imagine if, instead of imposing an arbitrary mandatory minimum sentence, a judge could carefully consider the fact that a woman would be leaving her 5-year-old child to be caught in the net of state intervention as a factor for a lesser or even suspended sentence.

Honourable senators, these are the incidences and questions which we have to think of when we consider whether to vote on this crucial bill. What country do we want to live in?

I, for one, am hopeful that we can demonstrate leadership in the promotion of legal sensibility, paired with reasonable compassion, for all Canadians.

To echo the words first spoken by Senator Forest-Niesing and reiterated by Senator Pate, this bill does not create discretion for judicial officers. On the contrary, it will permit them to more freely exercise one of their most significant responsibilities, which comes with the power bestowed upon them.

Under the staunch and unyielding leadership of our colleague Senator Pate, we have the opportunity, and indeed an obligation, to start to rectify the decades of wrongs imposed on the most vulnerable people in Canada, who simply need our support. Especially as all Canadians are continuing to face immense and compounding challenges from the pandemic, to which prisoners are directly exposed and immensely susceptible, we need to continue to fight against injustice and work toward a more truly inclusive and supportive society.

In all of our work, I encourage you to lead with empathy and understanding for others and, in particular, those who have to endure realities which do not mirror our own, and in which the vast majority of us have the immense pleasure of never having to imagine.

Honourable senators, I could continue to talk to you about the realities of women and young people languishing in prisons, of racialized people and Indigenous women and men languishing in prison, but you have heard what I have said and you have heard what Senator Pate has said and many of our other colleagues.

I ask that we send this bill as soon as we can to committee. I ask that when you vote for this bill, think of that young five-year-old, that little girl that has done nothing, that will be separated from her mother.

Honourable senators, that is our duty. I reach out to you and say let us send this bill now to committee. Thank you very much.

Yes, I will.