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Criminal Code

Bill to Amend--Second Reading--Debate Continued

February 25, 2020

Hon. Stan Kutcher [ + ]

Honourable senators, I rise today to speak to Bill S-207, an Act to amend the Criminal Code as it relates to disclosure of information by jurors.

In my opinion, this bill addresses an important issue that has not previously received sufficient attention: the mental health of jurors, which can be negatively impacted as an unintended consequence of fulfilling a civic duty. This bill helps address that concern by providing permission for jurors to more freely and confidentially discuss their experience with a health care provider, should they need to do so. I applaud this direction and support the bill.

Yet, I do not think it goes far enough to protect jurors. I will share with you why I think that and ask that you consider my comments as this bill is further debated and studied in this chamber and in committee.

I must admit that prior to my introduction to Bill S-207, I had not paid much attention to the negative impacts that could occur when a juror, in some trials, must engage with evidence that is highly disturbing and outside their usual experience — that negative impact being the development of a mental illness: post-traumatic stress disorder, often referred to as PTSD.

The probability of PTSD occurring, however, can be decreased, or the severity of its impact mitigated, if a number of economical and relatively easily implemented interventions were put into place during the jury duty experience at federal, provincial and territorial levels. However, the current structures and processes of jury management are such that jurors are being unnecessarily put at risk while serving in the pursuit of justice. This is in itself unjust.

In the past, society and legislators may not have considered this issue because we did not know much about it. However, scientific advancements in understanding the causes, prevention, mitigation and treatment of PTSD are now at the point that, as legislators, we can no longer say that we do not know.

We now know, and because of that, we must act.

Science has taught us that PTSD is a mental illness that can be understood as a failure of the alarm/nervous system to extinguish after its activation by a traumatic event.

In other words, something happens to some people that makes it extremely difficult, if not impossible, for them to shut off the emotional, cognitive and behavioural responses to a traumatic event.

This is accentuated by the type of trauma experienced, by the individual’s genetic makeup, the duration of the experience, the inability to avoid or take control of the situation and the unavailability of interventions that could mitigate its intensity or even prevent it from occurring in the first place. Risk for developing PTSD includes both genetic and environmental factors, including exposure to previous trauma and current or previous mental illness or substance abuse.

Science has also discovered that everyone exposed to a traumatic event will not develop PTSD, but everyone will develop what is called an acute stress response. While this acute stress response can create intense and unpleasant emotional, cognitive and physical experiences, these experiences will pass with time. Their passing is accelerated and intensity is mitigated by well-known factors. These factors are: emotional and cognitive preparation for the event; an understanding of what the acute stress response is; ongoing support from trusted persons, often friends and family members; and safety plus security. These factors encourage psychological resilience and promote healing. These are also some of the factors that decrease the risk for PTSD and lessen its intensity if it occurs.

According to the Canadian Juries Commission, an organization established by jurors whose exposure to trauma-inducing materials during high-profile trials that led to the development of PTSD, current jury management systems are not structured in a manner that considers and effectively addresses these mental health concerns. This conclusion was also reached in a 2018 report from the House of Commons Standing Committee on Justice and Human Rights, titled Improving Support for Jurors in Canada. Amongst its 11 recommendations, 5 were directed at improving mental health outcomes for jurors exposed to traumatic trial experiences.

Honourable senators, I am sharing this overview of how science understands PTSD, how jurors may be negatively impacted and how they are not assisted in the current process of trauma-inducing trials to underscore why our chamber should support Bill S-207. It is also to draw our attention to how we can go further.

Bill S-207 opens the door to permit jurors to discuss relevant information in confidence with a duly qualified and ethically bound health care provider if the juror is suffering from a mental disorder or a problem arising from or related to their trial-based traumatic exposure. This is good and this is needed. Yet, most of the processes currently ongoing in provincial, territorial and federal jury management systems that increase the risk of negative mental health outcomes are not addressed in this legislation. There is much that can be done, economically and efficiently, to address this concern.

For example, jurisdictional jury selection criteria should include history of previous traumatic exposure, mental disorder or substance abuse as risk factors that could exclude individuals from participating in trials in which traumatizing material will be presented. Jurors who are involved in such trials could have a court-directed and responsible mental health professional available for consultation and ongoing support during the trial and in the period of 6 to 10 weeks immediately following the trial. This is the period where symptoms of an acute stress response may develop into PTSD. Should that happen, jurors can then be immediately referred to PTSD treatment experts, therefore avoiding the delays and long waiting lists that currently characterize access to needed mental health care.

Jurors could also be given information about the acute stress response and symptoms of emerging PTSD and encouraged to discuss any concerns with the court-appointed mental health support person. This mental health literacy will better prepare them for their jury duty and will assist them in identification of need for treatment, should that occur. They can also be encouraged to share that information with their partners or family members, as it is often a partner or a family member that sees signs of distress, potentially minimized by the person experiencing it.

These suggestions are not based on hope and supposition. They are based on what researchers and clinical experts have demonstrated can have a positive impact. They are likely to be helpful and do not require great investment to apply.

We are asking citizens to assist our society in applying justice. We have a duty not to put them at unnecessary risk for a mental disorder when they are so engaged.

I ask that these additional points be considered during committee study of this important piece of legislation. Perhaps the committee may be able to suggest interventions to help federal, provincial and territorial ministers of justice become better aware of these concerns, and even provide suggestions as to how these might be addressed. We in this chamber can urge those who have the power to change the current process of jury management to do so. In doing this, we may be able to decrease the risk of mental disorder and increase the promotion of mental health for citizens whose work as jurors is essential for the provision of justice.

Honourable senators, we can help make that happen. Thank you.

Hon. Patti LaBoucane-Benson

I have a question for the senator.

Senator Kutcher [ + ]


Senator, we know that Indigenous people have been historically excluded from jury duty as a result of colonization and colonial bias. Would you not be worried that minorities like Indigenous people, who have a statistically higher rate of trauma per capita, would be further excluded from participating in jury duty if that is one of the tests of their participation?

Senator Kutcher [ + ]

Thank you for your very excellent question. I was suggesting that it be considered and not prescribed, and that individuals have the option and understanding that when they are asked for jury duty, should they have these challenges and experiences, they can request exemption or prepare themselves better for what they are going to face.

Hon. Marty Deacon [ + ]

I have a question. Thank you for continuing to bring up this very important issue. I will say, as a senator, I have been selected for jury duty for a murder trial. I can only echo the concerns and interests of the importance of this issue today. I’m trying to understand is the estimated cost to have the right things in place before selection, during the trial and post trial. Do we have a sense of what this might cost?

Senator Kutcher [ + ]

Thank you very much for that question. In my profession of medicine, one always balances the cost of doing something against the cost of not doing something. I would submit that the cost of doing some minor thing, such as having a counsellor with mental health expertise available to jurors during this difficult time, would be far less than the cost for the individual, their family and our society if they do develop a disorder because of the intense impact it can have.

Hon. Paula Simons [ + ]

I have another question. As I understand the intention of the bill, it is to allow jurors to seek counselling after a trial. I would be concerned — and I’m wondering if you would be concerned — about a juror who talked to a counsellor in the middle of a trial, and that it might influence their perception of the trial evidence. During the trial, in particular, privacy concerns are utmost. I worry that just talking through things could colour that juror’s interpretation of the facts they are hearing.

Senator Kutcher [ + ]

Thank you for that question — an excellent and a vexatious one.

Senator Simons [ + ]

I aim to vex.

Senator Kutcher [ + ]

You’re doing that very well, senator. I think the issue here is found in the quality and skill set of the counsellor. Those individuals in this chamber who have had the opportunity to fill parts of or understand those roles and who have been able to seek out or reach out to an individual who has skills in that area know that the discussion period and the support, when done properly, should not have an impact on them, in my opinion.

Hon. Josée Forest-Niesing [ + ]

Honourable senators, I rise today to speak in favour of Bill S-208, An Act to amend the Criminal Code with respect to the independence of the judiciary.

I want to congratulate Senator Pate on taking up the torch by introducing this public bill and all her work to ensure that we make an informed decision on the independence of the judiciary.

The Canadian judicial system, with its solid constitutional foundation, the rule of law, freedom under the law, democratic principles and respect of rights, is the envy of many other countries around the world. Despite these positive elements, our system is not without its challenges.

Despite some improvements, the system is still burdened by lengthy delays. We must find ways to better respond to the needs of victims of crime. We know all too well that Indigenous people, especially Indigenous women, are heavily overrepresented in our prisons. Police stations, like prisons, are on the front lines and often serve as inappropriate substitutes for the treatment and rehabilitation of people with mental health or addiction problems.

With mandatory minimum sentences, our judges have less discretion than ever to ensure that the punishment imposed upon the individual before them truly fits the crime. Our judges are the pillars of the Canadian judicial system, and the independence of the judiciary is one of its key elements.

I agree with the view shared by many that mandatory minimum sentences cause a great deal of harm to the judicial system and do not meet the objectives they were set out to achieve. Through this bill, we must give back to judges the discretion they need to ensure that the objectives of the sentences they hand down are achieved, while taking into account the circumstances on a case-by-case basis.

Honourable senators are no doubt aware that my husband and I have two children because I constantly talk about them. We are very proud of the kind, generous and engaged adults they have become. I have often said that being a parent is the best and worst job on Earth, but for better or worse, it remains my most meaningful contribution to the world. Neither of my children came with an instruction manual; believe me, I looked. What I discovered as I nurtured, taught, guided and disciplined them was that I had to adapt my approach to conform with their respective personalities.

As every parent here will recall, as soon as babies begin to crawl, they touch everything. This is often the first time parents have to discipline their children. In my home, the mandatory minimum sentence was having to sit in a corner without getting up before receiving the signal. I remember noticing that my son valued his freedom above all else. For him, having to sit quietly in the corner without getting up before receiving the signal was enough to keep him from reoffending. For my daughter, it was a completely different story.

A house plant, or more specifically the potting soil in which it grew, had piqued my daughter’s interest. I cleaned the soil off her hands and, without another word, gave her a time out in the corner. As soon as I gave her the signal, she got back on her hands and knees and, looking me in the eye, crawled purposefully towards the plant and began digging her hands into the soil once again. After repeating the same cycle of time outs a few more times, I had to stop and rethink my strategy. Clearly, my cookie-cutter approach was not working with her.

I brought my daughter back to the plant and explained that besides harming her health, she would stain her lovely dress and she could kill the plant. She listened to me, thought about what I had just told her and, having accepted my reasoning, did not put her hands in the black soil any more.

Clearly, the same punishment yielded a different result with each child. For one, it was fair and effective; for the other, it wasn’t. Why, then, does our criminal justice system apply a one-size-fits-all approach to sentencing?

Canada’s judicial system is built essentially on the notion of rehabilitation and, ultimately, reintegration into the community at large. It is not designed for purely punitive reasons.

Section 718 of the Criminal Code of Canada states the following, and I quote:

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 by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders . . . .

All these elements and principles are rooted in the fundamental concept that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Criminal Code also provides for the consideration of aggravating or mitigating factors, sentencing that reflects sentences imposed on offenders for similar offences committed in similar circumstances and paying particular attention to the situation of Indigenous accused.

The main political reasons behind the introduction of mandatory minimum sentences were equality, transparency and crime prevention. Although these are laudable objectives, none of them hold up under scrutiny. Mandatory minimum sentences do not take into account the type of offence committed. Factors such as circumstances, the offender’s individual situation, the motive for the crime or the offender’s age, sex and race are not taken into account.

Enforcing mandatory minimum sentences is akin to treating the symptoms of an illness without trying to treat the cause. There is no empirical, real-world evidence proving the theory that mandatory minimum sentences make Canadians safer by reducing crime. There is extensive literature indicating that mandatory minimum sentences in no way reduce crime, and papers that claim the opposite show no measurable empirical evidence.

Michael Tonry, a leading American researcher in this field, says that reviews of mandatory minimums show that they fail to meet their stated objectives. Far too often, the sentence in question is deemed much too harsh by the parties involved.

Professor Tonry says:

Experienced practitioners, policy analysts, and researchers have long agreed that mandatory penalties in all their forms . . . are a bad idea.

He adds:

Mandatory penalties often result in injustice to individual offenders. They undermine the legitimacy of the courts and the prosecution process by fostering circumventions that are wilful and subterranean. They undermine . . . equality before the law when they cause comparably culpable offenders to be treated radically differently.

Research over the past 40 years has demonstrated the complete failure of mandatory minimum sentences as a deterrent of crime.

In 1992, when she was Minister of Justice in the Mulroney government, the Honourable Kim Campbell said the following with regard to sentencing:

Restraint and balance are vital:

Restraint should be used in employing the criminal law because the basic nature of criminal law sanctions is punitive and coercive, and, since freedom and humanity are valued so highly, the use of other, non-coercive, less formal, and more positive approaches is to be preferred whenever possible and appropriate. It is also necessary because, if the criminal law is used indiscriminately to deal with a vast range of social problems of widely varying seriousness in the eyes of the public, then the authority, credibility and legitimacy of the criminal law is eroded and depreciated.

A study published in 2013 by Darcie Bennett and Scott Bernstein entitled Throwing Away the Keys: The human and social cost of mandatory minimum sentences confirms that:

Young people, mothers separated from their children, Aboriginal offenders, and people with disabilities (including mental health issues and drug dependency) are disproportionately negatively affected by prison.

The disproportionate impact of mandatory minimum sentences on vulnerable groups also has negative long-term effects. The negative effects of imprisonment transcend generations and have a high social cost for communities and society as a whole. Simply put, they perpetuate systemic criminalization.

Implemented in 1988, the judicial appointment process in Canada is quite extensive and it takes several factors into account. There are no less than 14 required professional competencies to which is added a long list of 19 personal qualities. Without listing them all, I do wish to highlight the following relevant few: analytical skills, listening skills, ability to exercise sound judgment, interpersonal skills with peers and the public, sensitivity to gender and racial equality issues, assessment of social issues, awareness of the evolution of social values, responsiveness to new ideas, a sense of ethics, patience, courtesy, common sense, impartiality, empathy, tolerance, a sense of responsibility.

We are fortunate to have among our colleagues in the Senate several judges who possess these and many other qualities.

Thanks to the judicial appointment process, judges are more likely to impose just and proportionate sentences based on the merits of each case. Judges must be able to exercise their judicial discretion unencumbered so they can impose fair and equitable sentences that take into account the accused’s personal circumstances and the context of and motives for the offence. The solution proposed in Bill S-208 would have no negative consequences and would enable competent judges to depart from a minimum punishment and craft a proportionate sentence that takes into account all the relevant facts.

Let’s remember that, unlike prosecutors, judges are accountable. Judges are required to explain their grounds and reasoning for imposing an appropriate punishment. If they fail to do so, their decision can be overturned on appeal. The checks and balances are in place.

Fairness is not sameness for everyone because circumstances are not the same for everyone. If I hadn’t considered my children’s different personalities, and if I had used the same disciplinary approach for each one, my home would have been plagued with injustice, frustration and conflict, and I would not have achieved the desired outcomes. If we ensure that our criminal justice system can tailor a sentence by taking mitigating factors, unique situations and the context of the offence into account, there will be fewer injustices and better outcomes.

Thank you for your attention. Meegwetch.

The Hon. the Speaker [ + ]

I should caution you, Senator Moodie, that we are approaching 6:00 p.m. at which time I will have to seek the views of the house on whether or not we decide to see the clock, but if you wish to begin, please do so.

Hon. Rosemary Moodie [ + ]

Honourable senators, I rise today fully understanding that this may not last very long, but it is my intention to speak to Bill S-208, 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.

For me, this bill addresses the need to restore judicial discretion to our legal system after years of regressive reform, and it is about addressing the human and social cost of imposing mandatory minimum sentences. 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 community any safer.

We also know that the Supreme Court of Canada, along with numerous judicial bodies, commissions, parliamentary committees and organizations, have concluded that they do not deter crime.

As a Parliament, we have also heard this. There are hours of documented evidence presented at parliamentary hearings that support this evidence, along with earlier documentation by the Library of Parliament in 2007 of the potential constitutional difficulties, lack of utility and negative impacts of these sentences. Additionally, Senator Lankin earlier made reference to the 2017 report of the Standing Senate Committee on Legal and Constitutional Affairs entitled Delaying Justice is Denying Justice.

A meta-analysis of the evidence on the impacts of minimum sentences was commissioned by the Department of Justice in 2016. The government’s review concluded that harsh penalties like mandatory minimum sentences are ineffective at deterring crime, and noted that experienced practitioners and social science researchers agree that mandatory penalties are a bad idea for many practical and policy reasons.

The eradication of a judge’s ability to develop a fair sentence based on the individual’s circumstances is a major concern. A judicial system that is forced to impose mandatory minimum sentences and one that is blinded to the human perspective and social implications of its decision is another concern. Bill S-208 addresses this issue and helps bring back the person, their circumstances and their perspective sharply into focus.

The Hon. the Speaker [ + ]

Excuse me, Senator Moodie.

Honourable senators, it now being 6 p.m., pursuant to rule 3-3(1), I’m required to leave the chair unless it’s agreed that we not see the clock.

Is it agreed, honourable senators?

The Hon. the Speaker [ + ]

I thought I heard a “no.” Is it agreed, honourable senators, that we not see the clock?

Senator Martin [ + ]


The Hon. the Speaker [ + ]

I hear a “no.” The sitting is suspended until 8 p.m.

Hon. Rosemary Moodie [ + ]

Honourable senators, in view of the vast array of information that we have learned in the research of mandatory minimum sentencing, it is not surprising that there are many who recognize the need for reform and the need to remove the constraints currently placed on judicial discretion. Ministers and parliamentarians, both past and present, have recognized this, along with the current government, which maintains support for needed reform.

We have learned that excessive use of incarceration has an enormous cost implication, both financial and social. Honourable senators, I’d like to focus a bit on the second of these implications, the human and social cost of imposing mandatory minimum sentences.

I quote researcher Jessica Hardy in saying that there are “numerous challenges that effect the family as a whole and each family member individually” but that “one of the most difficult challenges a family may face” is the removal of one of its members, either temporarily or permanently.

We know that the impact of incarcerated parents on dependent children is both profound and complex. It’s hard to define the exact numbers, as Canada has not been very good at collecting this date, but a 2007 study by Correctional Service Canada estimates that at least 4.6% of Canadian children, a number that approximates 350,000, are impacted by the incarceration of their parents.

Children of incarcerated parents face psychological stress, economic hardship, exposure to criminal activity, anti-social behaviour and difficulties at school, to name a few problems. 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; mental health issues, such as the risk for 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 development have an increased risk of severe depression that leads into adulthood.

Anti-social behaviour is another problem, including criminal activity and persistent dishonesty. In fact, it is the most common side effect seen when a parent is incarcerated. 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. And some researchers indicate an association with a low educational achievement, including an increased risk of school suspension and expulsion as increased risks.

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

Moreover, we know 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 and racialized communities are at increased risk. Indigenous communities are at increased risk. These communities are overrepresented in our prisons, as we’ve heard, because of the impact of mandatory minimum sentencing; for them, the risk is always increasing and the odds 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 increase in the overall risks of negative effects on family members.

The human and social cost of imposing mandatory minimum sentences on children is far too great and should be intolerable for us as a society. Research has shown that the child’s ability to rise above these challenges and to succeed in life is dependent on factors such as the strength of the child-parent bond and the quality of the social support system available for this child and this family.

The pressure to address the social impact of a judicial system that continues to impose mandatory sentences is mounting. Judicial discretion would allow for the consideration of the impact of incarceration on dependent children, especially in situations where the sentence is disproportionate to achieving the aim of the sentencing. It 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.

The welfare and best interests of the dependent child should be in the forefront of judges’ minds as they weigh the factors that drive their sentencing decision. I would also propose that the rights of the child, set out by the UN Convention on the Rights of the Child and signed in 1989, should also be considered. These include Article 2, the right not to be discriminated against or punished because of anything their parents have done; Article 12, the right of their views to be considered; and Article 20, the right to be provided with special protections and assistance by the state if temporarily deprived of his or her family environment.

In my opinion, senators, this bill addresses a flaw in our current system that unjustly punishes children for their parents’ actions.

In conclusion, I’d like to thank Senator Pate for the reintroduction of this bill and for her meaningful 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-208.

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