Honourable senators, I rise today to speak in support of Bill S-207, An Act to amend the Criminal Code (independence of the judiciary).

I would like to thank Senator Pate for bringing this important bill forward. I would also like to extend my gratitude to Mr. MacKenzie Cheater, a criminal law practitioner based in Winnipeg, whose support was instrumental in the crafting of this speech. I wanted to thank MacKenzie, a young man, for taking the time to walk a senior citizen through the sentencing process and mandatory minimums, generally, and the public opinions and statistical analysis of the amendments.

The words I will give on this matter I fully attribute as his own:

The exponential growth of MMS laws has had a profound impact on the promise made by the Supreme Court of Canada in 1999’s R v. Gladue, to address the legacy of colonialism and oppression of indigenous persons through the sentencing process.

It is well established in Canada that indigenous offenders are incarcerated at a much higher per capita rate than non-indigenous offenders. This problem is most pronounced in my home province of Manitoba, which was specifically noted by the in the Gladue decision, at paragraph 47:

“. . . it was the Manitoba justice inquiry that found that although aboriginal persons make up only 12% of the population of Manitoba, they comprise over 50% of the prison inmates. Nationally aboriginal persons represent about 2% of Canada’s population, but they represent 10.6% of persons in prison”

These statistics reflect the situation in Manitoba in 1999. In response to this growing problem across Canada, Parliament passed Bill C-41 in 1996 — An Act to Amend the Criminal Code (Sentencing) and Other Acts in Consequences Thereof. This legislation codified existing common law sentencing principles such as proportionality and restraint, but also created a new sentencing provision, now set out in Section 718.2(e) of the Code. This Section states:

“all available sanctions, other than imprisonment, that are reasonable in the circumstances . . . should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.”

The Supreme Court first had the opportunity to consider this Section in the landmark decision of R v. Gladue. The SCC noted the comments of then Justice Minister Allan Rock during their decision on the correct interpretation of this new sentencing provision, at paragraph 46:

“Through this bill, Parliament provides the courts with clear guidelines . . . .

The bill also defines various sentencing principles, for instance that the sentence must be proportionate to the gravity of the offence and the offender’s degree of responsibility. When appropriate, alternatives must be contemplated, especially in the case of Native offenders.

A general principle that runs throughout Bill C-41 is that jails should be reserved for those who should be there. Alternatives should be put in place for those who commit offences but who do not need or merit incarceration.

Jails and prisons will be there for those who need them, for those who should be punished in that way or separated from society. . . . [T]his bill creates an environment which encourages community sanctions and the rehabilitation of offenders together with reparation to victims and promoting in criminals a sense of accountability for what they have done.

It is not simply by being more harsh that we will achieve more effective criminal justice. We must use our scarce resources wisely.”

The Court in Gladue ultimately found that Section 718.2(e) was a call to action to address systemic discrimination and racism against Indigenous persons in the criminal justice system. As the decision states, at paragraphs 64 and 65:

“These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree. The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process.

It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons. What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.”

The radical promise of the SCC to revolutionize the sentencing process was reviewed again in 2012’s R v. Ipeelee, where the Court made the following remarks, at paragraph 63:

“Over a decade has passed since this Court issued its judgment in Gladue. As the statistics indicate, section 718.2(e) of the Criminal Code has not had a discernible impact on the overrepresentation of Aboriginal people in the criminal justice system. Granted, the Gladue principles were never expected to provide a panacea. There is some indication, however, from both the academic commentary and the jurisprudence, that the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s. 718.2(e) and this Court’s decision in Gladue.”

The issues identified by the SCC in Gladue and confirmed in Ipeelee have only grown worse since 2012. A Statistics Canada report from May 9th, 2019 now finds that Indigenous persons make up 75% of the Manitoba prison population, while only accounting for 15% of the province’s overall population. The only conclusion to draw from this data is that systemic discrimination towards Indigenous persons continues to pervade our criminal justice system.

Section 718.2(e) was designed to help remedy the over-incarceration of Indigenous offenders by re-thinking the sentencing process. It requires a sentencing judge to consider all alternatives before imposing a jail sentence. While this is not always possible, the consideration has to be meaningful and take into account the unique background of the offender before the court.

Mandatory minimum sentencing laws serve to directly undermine the use of alternatives to incarceration. It is impossible for a sentencing judge to exercise discretion and craft a non-custodial sentence where jail is mandated by the Code. …

It is unsurprising that the Truth and Reconciliation Commission of Canada specifically addressed this concern in their call to action [number 32], published in 2015:

“We call upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.”

[A concise] critique was published by the Osgood Hall Law Journal in 2001, in the article Mandatory Minimum Prison Sentencing and Systemic Racism:

“Mandatory minimum prison sentences alter the criminal justice framework. They drain the control of the judiciary over punishing offenders and bestow quasi-judicial powers on police and prosecutors. This shift in powers contradicts the accepted understanding that in the criminal justice system, the police, the Crown, and the judiciary assume distinct, albeit complementary roles. The police are responsible for investigating crimes, arresting, and charging persons suspected of breaching the law. The role of the Crown attorney is to prosecute the offenders. Finally, judges preside over trials and are responsible for imposing sentences.

When mandatory prison terms are integrated into the justice system, the gatekeeping role of the police assumes even greater power. Individuals investigated and charged by the police are confronted by two stark options: proceed to trial and, if found guilty, face mandatory prison time (in which the judge has no discretion to consider the circumstances of the offence and offender) or, upon agreement between defence counsel and the prosecutor, plead guilty to a lesser charge that carries a lighter sentence. Being charged with an offence with a mandatory sentence means that individuals, regardless of their culpability, may be placed into a situation in which pressure to assert their guilt is intensified.” . . .

This is the danger of mandatory minimum sentencing laws — they shift power from the Courts to the Crown and Police. The chance that systemic discrimination will be amplified and further marginalize Indigenous people within the criminal justice system is heightened where power is moved from transparent to non-transparent bodies. . . .

I believe that Bill S-207 is an effective solution to the problems presented by MMS laws. I would ask that you support Bill S-207 and help to create a more just, effective and fair justice system.

Thank you.