Honourable senators, I rise today to speak to Bill S-208, An Act to amend the Criminal Code (independence of the judiciary). I would like to thank Senator Pate for her initiative.

Bill S-208 will return sentencing discretion to judges for 73 offences that currently carry with them a mandatory minimum sentence. This is not a radical or brand new approach to trying to deliver justice in Canada’s justice system, which, in truth, often fails to deliver fair, just results, and more accurately should be described as a legal system. With Senator Pate’s bill, judges would regain the authority to impose just sentences with attention to the context and specifics of each case. The word “case” is general and abstract, so please bear in mind that we are talking about human beings here, and that, indisputably, many of these human beings enter the criminal legal system as members of peoples who have been living under deeply entrenched systemic racism. Bill S-208 offers us, as lawmakers, the chance to make a law that is in accordance with long-established principles of sentencing and, even more important, with our constitutionally entrenched Canadian Charter of Rights and Freedoms.

Honourable colleagues, we owe it to survivors of crime, and to Canadians collectively, to pursue changes to the Criminal Code that will lead to a more equitable application of the law, because more equitable application of the law benefits us all. Mandatory minimum sentences fail to deliver equitable outcomes. Equitable outcomes are the buttress for the credibility and viability of our legal system.

The literature on sentencing and corrections has a high degree of consensus that mandatory minimum sentences fail to produce any tangible deterrent effect. The Supreme Court of Canada explicitly acknowledged this fact in the Nur decision, stating:

Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes. . .

Mandatory minimum sentences are essentially a security theatre being played out at the price of an accused individual’s Charter rights. Moreover, research shows that mandatory minimum sentencing may very well contribute to increased recidivism; lengthier sentences in prison are correlated with reoffending.

Mandatory minimum sentences cannot be justified in the name of community safety and deterrence. The facts don’t support it.

Beyond the self-defeating nature of mandatory minimum sentencing, there is also research that shows that many of these sentences lead to the application of overly harsh penalties. This leads to constitutional issues, as well as issues of compassion and fairness, but also of efficacy. In the Supreme Court of Canada’s reasoning in R. v. Lloyd, the majority opinion notes:

. . . 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. This is because such provisions will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. . . .

The Supreme Court is telling us here that in case where mandatory minimum sentencing applies to a range of impugned conduct, it is almost always possible to think of a real-life situation in which the application of that sentence becomes grossly disproportionate; it is, therefore, a violation of an accused’s section 12 Charter rights.

Bill S-208 effectively captures the spirit of the solutions proposed by the Supreme Court of Canada in R. v. Lloyd. The Supreme Court provided two solutions through which Parliament could reform mandatory minimum sentencing to ensure their constitutionality, without excising them from the Criminal Code entirely. Both recommendations by the court revolve around nuancing the application of mandatory minimums. Bill S-208 provides for nuance in sentencing where a mandatory minimum may be in play by allowing judges to use their familiarity with the facts of the case to ensure that sentencing does not result in unjust, grossly disproportionate and therefore unconstitutional outcomes.

We are discussing Bill S-208 at an opportune time. Why have thousands and thousands of people taken to the streets across North America and across the globe? Because thousands and thousands of reasonable people are protesting against systemic inequalities and police militarism that has spawned disproportionate violence and killings. They have been marching in solidarity to reinforce the truth that black lives matter, that the lives of Indigenous people matter and that the lives of people of colour matter. People matter. And injustice matters.

While the spark for this latest chapter in the ongoing struggle for civil rights flared in the United States, Canadians have mobilized in response to police killings and violence, as well as numerous demonstrations of systemic racism and intentional individualized racist conduct.

As we witnessed last Thursday during the Senate’s emergency debate, requested by Senator Rosemary Moodie, Canada is owning up to more of its own history and the inequalities still blocking Indigenous peoples, other minorities and marginalized groups within our own borders. The Canadian government has taken some significant and substantial steps and said many of the right words with respect to reconciliation with Indigenous peoples. However, as a country, we have many major steps toward the practical realization of the commitments that follow from those words.

One such issue, mentioned both by the National Inquiry into Missing and Murdered Indigenous Women and Girls, and the Truth and Reconciliation Commission, is with mandatory minimum sentencing. One of the findings of the national inquiry was that mandatory minimum sentences are especially harsh for Indigenous women and girls, and 2SLGBTQQIA people, as Gladue principles for sentencing cannot be applied. This leads to higher incarceration rates.

Further, sentences fail to meet the rehabilitative needs of Indigenous women, girls and rainbow people. As part of its calls for justice, the report asks all levels of Canadian government to evaluate the impact of mandatory minimum sentencing as related to the sentencing and over-incarceration of Indigenous women, girls and rainbow people, and to take action based on their findings.

For its part, the final report of the Truth and Reconciliation Commission, chaired by our esteemed colleague Senator Murray Sinclair, states that the implementation of mandatory minimum sentencing undermines the criminal justice reforms of the mid-1960s that required judges to consider all reasonable alternatives to incarceration for punishment, especially with regard to Aboriginal offenders. Restrictions on sentencing discretion in this way exacerbate Aboriginal overrepresentation in the correctional system.

The Truth and Reconciliation Commission went on to issue a Call to Action regarding getting rid of mandatory minimum sentencing, asking 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.

Just as Bill S-208 is a fair, principled response to the Supreme Court of Canada’s findings in R. v. Lloyd, its provisions dovetail well with the calls by the Truth and Reconciliation Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls. In fact, Bill S-208 would implement the same fix the commission recommends.

The Canadian government has made a commitment to fully implement the commission’s Calls to Action. Given that sentencing reform failed to make an appearance in Minister of Justice David Lametti’s mandate letter from the Prime Minister, the Senate is in a position to pick up this dropped ball and pursue informed, evidence-based sentencing reform in satisfaction of that commitment on behalf of Parliament.

I highly recommend that this bill be sent to committee for further study. Through this bill, the Senate has the opportunity to roll back regressive criminal law that amounts to a vicious indulgence in systemic racism. This bill provides us with an opportunity to hear the voices of correctional experts, and the voices and stories of survivors of crimes that have mandatory minimum sentences. We can hear the truth behind the supposed benefits of mandatory minimum sentences, such as deterrence and denunciation, and grow to understand the effects of forcing a retributive, punitive, inflexible approach to justice.

One thing we might find — and this is supported in the research — is that satisfaction with the justice system on the part of people affected by crime is not generally tied to the length or severity of the sentence imposed. Instead, it is much more impactful to ensure that survivors are kept informed throughout the proceedings and allowed to participate meaningfully in those proceedings. In situations where judges have discretion over the sentencing of an offence, they are able to use victim impact statements to ensure the survivor is heard, the punishment fits the crime and that justice is meted out in a manner that is not grossly disproportionate and unconstitutional.

Honourable colleagues, let us take this opportunity to commit to an evidence-based approach to criminal and correctional law. Let us commit to an approach that focuses on ensuring just outcomes for offenders, survivors and Canadian society by moving past the perception that justice is a hammer that must be applied with decisive force, regardless of the details of the case and in the name of being “tough on crime.”

With the information available to us on how damaging mandatory minimum sentences can be — which Senator Pate and other speakers in this debate have done an excellent job of demonstrating to us — it is no longer tenable to rely on the so‑called common sense notion that more punishment equals more justice when, instead, more punishment is often just a vicious indulgence of de facto prejudice against less advantaged Canadians by more privileged Canadians.

Let me close by citing the blunt compelling facts that compare mass incarceration of Indigenous people in Canada over the past two decades. In 2000, 34,283 prisoners identified as Aboriginal in provincial and territorial prisons, and 1,252 prisoners identified as Aboriginal in federal prisons, making up almost 18% of the total prison population 18 years ago. The most recent Indigenous mass incarceration numbers are for 2018, and look what the facts tell us about systemic racism: 72,392 prisoners in provincial and territorial prisons are of Indigenous origin, and 2,019 are in federal prisons, bringing the overall percentage up from 17% to almost 30%. What is the percentage of Indigenous peoples in this country? It’s 5%.

Bill S-208 gives us, as lawmakers, an excellent opportunity to seek an effective remedy for the constitutional vulnerability of mandatory minimum sentences in the Criminal Code of Canada, and to address the systemic racism that is embedded in mandatory minimum sentences. Let’s do everything we can to move this bill into law. Thank you. Meegwetch.