Moved second reading of Bill S-207, An Act to amend the Criminal Code (disclosure of information by jurors).

He said: Honourable senators, I rise today at second reading of Bill S-207, which I am sponsoring.

I would like to take this opportunity to extend my heartfelt thanks to Senator Moncion for all her help and particularly for sharing the human side of her experience as a former juror. Thank you very much, senator.

This bill, entitled An Act to amend the Criminal Code, disclosure of information by jurors, seeks to implement an important recommendation made by the House of Commons Standing Committee on Justice and Human Rights.

In its report entitled Improving Support for Jurors in Canada, which was released in May 2018, the committee issued recommendation number 4 regarding a more lenient secrecy rule for jury deliberations, which states:

That the Government of Canada amend section 649 of the Criminal Code so that jurors are permitted to discuss jury deliberations with designated mental health professionals once the trial is over.

It is important to remember that his recommendation was supported by all members of the Standing Committee on Justice and Human Rights during the Forty-second Parliament, regardless of political affiliation. This report was based on an eight-day study of the issue.

I would add that this bill is based on humane considerations. Jurors are the backbone of our justice system. They must be given as much support as offenders receive.

Later, on October 29, 2018, the member for St. Albert—Edmonton, Michael Cooper, tabled Bill C-417 in the House of Commons, which unanimously supported this bill. The bill went on to the Senate at second reading and then died on the Order Paper with the dissolution of Parliament last September. Bill S-207, which I tabled on December 13, incorporates the elements of Michael Cooper’s Bill C-417.

Bill S-207 is about a non-partisan issue that has already been studied at length in the other place. This bill amends the Criminal Code to provide that the prohibition against the disclosure of information relating to jury proceedings does not, in certain circumstances, apply in respect of disclosure by jurors to health care professionals.

We all know that the mental health of jurors is a matter that transcends political allegiances. This bill will help build a more humane justice system and help our jurors, the people who serve Canada’s justice system. It is our duty to work together to assist them.

Mark Farrant, a former juror who now advocates for the rights of jurors Canada-wide, said this:

Jury duty is the cornerstone of our justice system. Jurors are often exposed to disturbing and graphic evidence. It is fair to say that jury duty has not kept pace with the increasing demands of our modern world, and it has been my mission to ask for change. This bill, which is a simple amendment to the Criminal Code, will make an enormous difference to jurors seeking support long after their trials have concluded.

Throughout its study, the Justice Committee heard from former jurors whose lives changed forever after they did their civic duty. Because of the disturbing testimony they heard during terrible trials, former jurors developed mental health problems, including post-traumatic stress disorder.

Several former jurors became what I would call victims of our justice system because the system prevented them from getting effective therapy.

According to the former jurors who testified, the secrecy rule currently enforced on jurors under the Criminal Code prevents them from accessing the mental health services they truly need. Pursuant to section 649 of the Criminal Code, every juror who discloses any information regarding jury deliberations in their lifetime, even to a mental health professional, is guilty of an offence.

Being a juror in a criminal trial such as, for example, the trial of Paul Bernardo, can be one of the most stressful experiences in a juror’s life, if not the most stressful. Post-traumatic stress is a real possibility. This morning I met with Tina Daenzer, a juror who served on Paul Bernardo’s trial. She told me about the post-traumatic stress suffered by those who wanted to serve justice and take on the role of a juror in a criminal trial.

This is precisely the purpose of the bill. It aims to create an exemption to the secrecy rule to allow former and new jurors who experience mental health problems as a result of their duties to talk about all aspects of their role with a health care professional.

The integrity of the secrecy rule will be protected, because the juror will be disclosing information in a confidential setting after the trial with professionals who are bound by their own confidentiality rules.

However, this exemption would allow former jurors to discuss essential topics with their health care professionals to get the help they need and are entitled to. If there ever was an amendment to the Criminal Code that everyone could agree on, it would most certainly be the amendment proposed in this bill.

Consider someone who is part of a 12-member jury who has to watch and hear recordings and look at photos of murders, violent assaults or other heinous crimes. That whole experience can be devastating to one’s mental health. In a way, these individuals protect our society from the criminals who are the subjects of those trials. They are the shields that protect the public from the bloodiest, most disturbing details surrounding crimes like the ones committed by Paul Bernardo.

Let’s think about what might happen to the 12 people called to form a jury. They do their duty without any training, psychological preparation or experience. They are plunged into a macabre world. Then, after they have been sequestered and have deliberated, and after the ruling is handed down, the justice system sends them merrily on their way, at their most vulnerable and without any assistance. Today I cannot help but think about the jury members who served in the trial of my daughter Julie’s murderer. Those individuals were faced with the most horrific, unimaginable details. That is what I call surviving the unspeakable.

Consequently, we must now ensure that the bill moves through the Senate. I am hopeful that this bill will have the support of all my Senate colleagues, no matter their political affiliation. Once again, I thank Senator Moncion from the bottom of my heart. She unreservedly supports this bill and is especially interested in it because of her past experience.

As Senator Moncion stated:

During the last Parliament, legal experts, mental health professionals and members on both sides of the House of Commons supported this bill because its merits transcend partisanship. In view of the interest generated by the proposed change, I believe it is vital that this legislation move through the Senate in the spirit of cooperation.

Honourable senators, today I urge you to adopt this bill at second reading as quickly as possible so that it may be considered in committee.

Thank you.

Thank you, Senator Moncion, for your speech.

Honourable senators, I am pleased to rise today to speak to Bill S-207, An Act to amend the Criminal Code (disclosure of information by jurors), introduced by Senator Boisvenu and inspired by Bill C-417, which was adopted unanimously in the other place last year.

Bill S-207 seeks to amend section 649 of the Criminal Code, which provides for the secrecy of jury deliberations, also known as the “juror secrecy rule.” This provision specifically prohibits jurors from discussing the content of jury deliberations with anyone, including health care professionals. For clarity, there are limited exceptions related to a disclosure and they pertain to criminal investigations regarding obstruction of justice.

The amendment to the legislation that is proposed by Bill S-207 arose from a study on counselling and other mental health supports for jurors conducted by the House of Commons Standing Committee on Justice and Human Rights in 2017-18, and specifically recommendation 4 of the report:

That the Government of Canada amend section 649 of the Criminal Code so that jurors are permitted to discuss jury deliberations with designated mental health professionals once the trial is over.

This Bill addressed this recommendation of the report by proposing to amend section 649 to provide the following exception to the “juror secrecy rule,” allowing former jurors to discuss jury proceedings with health care professionals if needed after the completion of a trial:

(c) any medical or psychiatric treatment or any therapy or counselling that a person referred to in subsection (1) receives from a health care professional after the completion of the trial in relation to health issues arising out of or related to the person’s service at the trial as a juror or as a person who provided support services to a juror.

In essence, what this amendment will do is make it possible for someone to seek mental health and/or medical assistance if they have served on a jury and are adversely affected or traumatized by that experience. This will bring the protection and support members of a jury often need to deal with the circumstances which they were exposed to during a jury trial.

Every year, thousands of Canadians are called on to serve on a jury. Allow me to walk you through the jury process, if I may.

For criminal cases, section 11(f) of the Canadian Charter of Rights and Freedoms grants any person charged with an offence the right:

. . . to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment . . . .

As provided in section 471 of the Criminal Code, it also identifies the exceptions by which an accused may exempt themselves from a jury trial. In fact, when a person is charged with certain offences and crimes listed in the Criminal Code, the trial will automatically take place before a judge and jury unless the person charged with the offence and the Attorney General agree to a trial without a jury.

There are also a number of ways we can have jury trials through the civil process. I won’t talk much about that other than to say that there are also circumstances whereby people outside of the criminal jurisdiction could find themselves in similar circumstances.

Coroners’ inquests, which aim to inform the police and the public of the circumstances of a death, utilize the jury system as well.

The parameters for jury duty are set out in provincial and territorial legislation. The legislation establishes the criteria to serve as a juror to be exempted, as well as the juror selection process and any compensation that may be provided. The administration of jury duty can vary considerably from one province or territory to another.

Suffice to say serving as a juror involves significant stress, seriously affecting jurors’ lives. The decision-making process during deliberations can be stressful as there is some fear of making the wrong decision and rendering a verdict that will have a life-altering impact on the former victim or the accused. Some proceedings deal with horrible crimes and involve extremely traumatic evidence.

An example I personally saw was when I was with the RCMP in Yellowknife and I was the primary investigator for the Giant Mine explosion. A striking miner had entered the mine where he set up 50 kilograms of explosives and, using a trip wire, he murdered nine people, leaving their remains spread out across a large area of the mine underground.

The men and women of that jury looked at hundreds of photos and videotape evidence, heard the words of the investigators at the scene picking up pieces of everything and then watched the video where the accused described how he set up that explosion. The sheer amount of evidence that was presented spanned months and there was potential for anyone involved to be traumatized by what they saw and what they heard.

Watching these jurors as they participated in that trial watching videos that were often horrific in nature, looking at crime scene photos and hearing from victims of abuse and offenders as they describe their crimes is difficult for anyone, but only a few people in that courtroom must hear all the evidence: the judge, courtroom staff, the prosecutor, the defence and the defendant and, of course, the jurors. There is no escape from what they hear and, other than those in the jury room, often no one to speak to.

Not all jurors are affected in the same way by legal proceedings, and stress levels can vary between individuals. Those who witness a traumatizing event or hear details about it can later be diagnosed with PTSD. This can be the case for jurors as well who, without any training, are presented with traumatic and often devastating material.

When the trial ends, the people I mentioned can decide if they need support, often from mental health professionals, as a result of what they saw or heard — except for those who served on the jury. They cannot access the same level of help that I was able to along with many others I worked with. That’s why this bill is so important. It will allow jurors to discuss the events they participated in and access the case for the purpose of their own mental and physical health.

To truly access the help needed, it is important that those requiring that help have the ability to expose their inner thoughts and feelings and, often, the things they saw and heard.

But instead, all of the parties involved have clear and open access to whatever help they need, except for jurors.

Honourable senators, it is extremely important that we all support this legislation. It is my hope this bill will get processed in committee and adopted in this place expeditiously so help can be offered to those in need. Thank you.

Moved second reading of Bill S-208, An Act to amend the Criminal Code (independence of the judiciary).

She said: Honourable senators, the purpose of Bill S-208 is to accord judges the discretion not to impose minimum penalties where they consider it just and reasonable.

Bill S-208 echoes other proposed legislation aimed at ensuring that minimum penalties do not impede judges in their duty to deliver fair and fit sentences. Notable examples include bills introduced by former Minister of Justice Irwin Cotler in 2015, then-Green Party Leader Elizabeth May in 2016 and former NDP MP Sheri Benson in 2018.

Debate on a previous version of this bill last Parliament emphasized the need for legislative action to correct ongoing injustice. This urgent need was also underscored by related discussions during the Legal Committee’s study of court delays and Bill C-75.

We owe the Canadian public the timely referral of this bill to committee for consideration. Each passing day of inaction leaves a system in place that we know interferes with the right of an accused to a proportionate sentence; causes some prisoners to be subjected to cruel and unusual punishment; perpetuates delays and costs within the court and legal systems; discriminates against those who are racialized and who are most marginalized, particularly Indigenous peoples, women and those with disabling mental health issues; contributes to miscarriages of justice and undermines public safety.

At first blush, some might think that the idea of using a one-size-fits-all approach to sentencing sounds fair and equal. In reality, however, mandatory minimum penalties eradicate the ability of judges to craft fair sentences based on individual circumstances. Bill S-208 provides a safety valve to enable judges to exercise their expertise to not apply mandatory minimum penalties when to do so would be unjust or inappropriate.

To be clear, judicial discretion with regard to mandatory minimum penalties does not give judges free rein to act arbitrarily. Judges are obligated to provide reasons for their sentencing decisions in accordance with section 726.2 of the Criminal Code:

When imposing a sentence, a court shall state the terms of the sentence imposed, and the reasons for it, and enter those terms and reasons into the record of the proceeding.

Their decisions must be rooted in legal principles and they are subject to scrutiny from the general public, the legal community and other judges through appeal processes.

Such transparency is in sharp contrast to what occurs in cases where mandatory minimum penalties exist. Mandatory minimums often shift discretion from judges to others with virtually no accountability either to the public or to the appeal process. For example, by determining what charges to lay and whether to pursue a charge with a mandatory minimum penalty, Crown prosecutors in effect make key sentencing decisions. Their reasons may have little to do with legal principles. For instance, such practices are too often used as bargaining chips when authorities are seeking to extract guilty pleas to lesser charges.

Additionally, Bill S-208 would not prevent judges from imposing mandatory minimum sentences — consistent with section 718.2 (e) of the Criminal Code, often referred to as the Gladue factors. It would merely require judges to reflect on and provide reasons justifying the fairness of imposing a mandatory minimum. Mandatory minimum penalties prevent justice from being done.

The 1987 Canadian Sentencing Commission found that nine in 10 judges concluded that mandatory minimum penalties had interfered with their ability to render a just sentence. In the decades since then, the number of mandatory minimum penalties in Canada has grown exponentially. At the time of the sentencing commission, there were about 10 types of convictions that would yield a mandatory minimum. The Department of Justice now lists 72.

Colleagues, here are 10 reasons why we need this bill.

First the proliferation of mandatory minimum penalties is fundamentally at odds with the long-recognized principle that individuals have a right — and judges have a duty — to craft sentences that are proportionate in the circumstances of each case. Section 718.1 of the Criminal Code requires that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In ruling a mandatory minimum penalty unconstitutional in 2015, the Supreme Court reminded us that sentencing must be “a highly individualized exercise.”

Mandatory minimum penalties are, by definition, the opposite; a universal standard set in advance with zero flexibility.

There has long been non-partisan consensus regarding the need to repudiate mandatory minimum penalties. To give just one example, in 1976, as they debated the replacement of the death penalty with mandatory life sentences, parliamentarians on both sides of the aisle questioned what Conservative MP David MacDonald called the “trade-off” of “one barbarous, cruel and unacceptable punishment for one that is not equally as bad but is certainly moving in that direction.”

When Senator Wetston spoke to the previous version of this bill, he quoted Professor Kent Roach who described mandatory minimums as flawed because they are:

. . . blind to whether offenders live in abject poverty, have intellectual disabilities or mental-health issues, have experienced racism and abuse in the past or have children who rely on them. The mandatory-minimum sentence does not allow a judge to decide if incarceration is necessary to deter, rehabilitate or punish . . . .

Anatole France once wrote that:

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread.

His words remind us that if sentences are to do justice rather than perpetuate injustice, we need to consider the circumstances and behaviour of individuals in the context of the choices available to them.

Intuitively, this is something that all of us know. Research has demonstrated that members of the public who initially appear to support mandatory minimum penalties will characterize even mandatory life sentences as unjust and unfit once they are provided with factual details about individual cases.

The second reason we need this legislation is that courts are increasingly ruling mandatory minimum penalties unconstitutional. As Senator Plett noted when he spoke to the previous version of this bill, in some cases, such as the recent R. v. Nur and R. v. Lloyd decisions of the Supreme Court, mandatory minimum penalties have been found so grossly disproportionate that they violate constitutional guarantees against cruel and unusual punishment.

I agree with Senator Plett’s assessment that:

This is not acceptable and should be addressed, as recommended by the Supreme Court of Canada.

It is for Parliament to act, not to wait for the courts to strike down these sentences one by one. That would be an abdication of our responsibility.

The Supreme Court in R. v. Lloyd observed that:

. . . the reality is that mandatory minimum sentences for offences that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence.

Canadian courts have found a significant number of mandatory minimum penalties invalid on such grounds. Nearly half, some 31 of the 72 minimum penalties currently in force, have been found unconstitutional by at least one court. Of these, about 25 mandatory minimums have been struck down as invalid in various provinces. In 11 cases, the court that struck down the mandatory minimum was a Court of Appeal or the Supreme Court of Canada. The consequence of these frequent constitutional challenges is the confusing and inconsistent patchwork referred to by Senator Wetston in his speech last Parliament.

This hodgepodge exists because, in the absence of legislation such as Bill S-208, mandatory penalties have to be challenged one by one before the courts, tying up significant court and government resources and requiring individual Canadians to shoulder the heavy burden of mounting constitutional challenges. In too many cases, those facing a potential unconstitutional mandatory minimum simply do not have the means to defend their rights.

At the same time, for those with sufficient means, mandatory minimum penalties incentivize drawn-out litigation, including constitutional challenges. Individuals have nothing to lose and everything to gain by going to trial and trying every avenue to avoid a harsh sentence, rather than seeking early resolution.

The report of the Standing Senate Committee on Legal and Constitutional Affairs on court delays identifies the strain that mandatory minimums place on scarce judicial resources and the pressing issue of trial delay. During the study, at least 11 different criminal justice experts singled out mandatory minimum penalties as a factor contributing to overall delays and inefficiencies in the court system.

The third reason we need this legislation is that Canada’s rigid and harsh approach to mandatory minimums has made us an outlier internationally. The current situation in Canada can be contrasted with the experiences of other democracies whose laws include mandatory minimum penalties. Most, including England and Wales, New Zealand, South Africa, Australian jurisdictions and even a number of U.S. states, have taken steps to ensure the integrity and constitutionality of their laws and the rights of their citizens by allowing some form of judicial discretion. In most cases, this judicial discretion extends to even the most serious life sentences.

In its 2016 decision in R. v. Lloyd, the Supreme Court drew attention to Canada’s precarious position with respect to mandatory minimums and called on Parliament to:

 . . . build a safety valve that would allow judges to exempt [from the application of mandatory minimum penalties] outliers for whom the mandatory minimum will constitute cruel and unusual punishment.

Bill S-208 will implement this recommendation by offering such an outlet. It allows judges the discretion to not impose a mandatory minimum.

The fourth reason we need this legislation is that it represents one of the commitments the government made to reconciliation with Indigenous peoples. Bill S-208 is responsive to the Calls to Action of the Truth and Reconciliation Commission and the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

The work of these commissions established clear links between the trauma and marginalization that are the legacy of residential schools and other colonial policies, and the current overrepresentation of Indigenous peoples as victims, accused and prisoners. As Niigaan Sinclair pointed out yesterday — the same day a court denounced the arrest of an Inuk woman who was seeking protection from an abuser — Indigenous peoples too often get jails instead of justice, jails instead of addressing trauma, jails instead of reducing the number of Indigenous children in the care of the state, jails instead of dealing with poverty and the lack of food, shelter and other basic necessities.

In 2015, the government’s election platform included a promise to implement the Calls to Action of the TRC. In 2019, the Minister of Justice’s mandate letter reiterated the need for progress toward this goal and toward the implementation of the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Both demand that minimum sentences be remedied.

Instead of redress and reconciliation, the situation has worsened. New statistics released by the Office of the Correctional Investigator indicate that 30 per cent of all federally sentenced prisoners and 42 per cent of all federally sentenced women are Indigenous. This rate has increased by 43 per cent since 2010. During the same period, rates of non-Indigenous incarceration decreased by 14 per cent.

The Correctional Investigator pointed to the ongoing failure of the criminal legal system to respond to needs, histories and social realities of Indigenous peoples as the root of these high rates of criminalization. Mandatory minimum penalties make it impossible for the court to follow section 718.2(e) of the Criminal Code to ensure what we know as Gladue factors are taken into account.

This brings us to the fifth reason why we need this legislation: Mandatory minimum penalties discriminate against those who are marginalized and result in a less fair and a less just society for all.

In 1995, concerns about discrimination against Indigenous peoples led Parliament to enact section 718.2(e) of the Criminal Code, otherwise known as the Gladue factors. This provision requires “. . . judges to consider all available sanctions other than imprisonment” at sentencing and to direct particular attention to the circumstances of Indigenous peoples “. . . which may specifically make imprisonment a less appropriate or less useful sanction.” Mandatory minimum penalties make it impossible to ensure this provision has its intended effect.

The sixth reason is closely related. Mandatory minimum penalties undermine the rule of law by encouraging wrongful guilty pleas. The harshest mandatory minimum penalty in the Criminal Code is life in prison. In the past decade, 45 per cent of women sentenced to life imprisonment were Indigenous. That is a staggering number.

The 1995 conviction review by the Department of Justice overseen by Justice Lynn Ratushny revealed an apparent and appalling connection between mandatory life sentences and criminalization of survivors of abuse. After reviewing the cases of 98 women convicted of using lethal force to protect themselves or their children from abusers, Justice Ratushny determined that far too many women had pleaded guilty to lesser charges, such as manslaughter, despite having a potentially valid claim of self-defence or defence of other.

Faced with circumstances ranging from limited financial resources, to navigating a legal system that had failed to protect them from violence, to fears of having to put their children through the harrowing process of testifying in criminal court, the “choice” of abused women not to risk going to trial was propelled by the spectre of mandatory life sentences.

While mandatory minimums are often advertised as being “tough on crime,” in reality, they are too often the toughest on those who are already most marginalized and victimized. The Persad decision rendered last month in Ontario reminds us that one function of sentencing is to communicate “. . . values which ought to be important to the community.”

In this case, the court reduced the length of a sentence due to abhorrent conditions in pretrial custody, including frequent lockdowns; cell-confinement for up to seven days at a time without access to fresh air, showers or telephone calls; clothing, bedding and towels that were stained with urine, feces or blood; and prisoners sometimes having to go for months without a change of clothes. Citing Professor Allan Manson, the court reflected that the consideration of an individual’s circumstances for the purpose of sentencing also required “consideration of society’s collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society.”

Where a minimum penalty applies, judges are constrained in how much they can reduce a sentence to take into account inhumane conditions in pretrial detention as well as police misconduct. Bill S-208 would ensure that judges could craft a just and appropriate sentence, which, according to Justice LeBel in the Nasogaluak decision, “. . . includes consideration of society’s collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society.”

Time and again, mandatory minimums have led to the increased criminalization and imprisonment of individuals who are impoverished, women who have experienced lifetimes of violence, those who live with disabling mental health issues and those who are racialized, especially Indigenous peoples. When we think of the purpose of a sentence, from people taking responsibility and being held accountable for their actions, to working through the factors that led to their criminalization, to integrating into and contributing to the community, inhumane prison conditions and repeated human rights violations are not supposed to be part of the penalty. In his speech on the previous version of this bill, Senator Dean noted:

We know that criminalization causes significant social harms to individuals and their families, and as the Law Reform Commission of Canada has pointed out, longer sentences with harsher penalties are not an effective means of preventing crimes.

This is reason number 7 why this legislation is urgently needed. In addition to all the harm they cause, minimum penalties do not deter crime. In the Nur decision, the Supreme Court of Canada summarized a significant body of literature on mandatory minimum penalties and crime prevention in just 13 words:

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

At least 50 years of research and evidence indicate that, in fact, we should focus instead on other factors such as appropriate non-criminal-justice interventions and the certainty of being held accountable.

Reason number 8 is that mandatory minimum penalties also fail to serve the interests of victims. A representative of the victims advocate group Mothers Against Drunk Driving Canada testified to the House of Commons Standing Committee on Justice and Human Rights that:

As a mom, as a stepmom, as a victim, I can’t support it. There’s no evidence to support that this will actually make a difference. We know once we bury our children or bury a loved one, it’s too late. We need to focus on deterring it before it actually happens.

In my years of working with those convicted in relation to homicides, I can tell you that it is the rare person who would not give up his or her life if it would bring back the person who died. No sentence can do this, so we try to do our best to otherwise remedy such wrongs by providing other ways for people to pay their debts and provide future positive contributions to society. Longer prison sentences too often represent the least effective and most costly way of achieving these goals.

Reason number 9 for why we need this legislation now is the enormous and needless financial cost of minimum penalties. For those convicted and sentenced to a mandatory minimum penalty, the cost to taxpayers of administering a harsher-than-necessary sentence is significant. For a woman in federal prison, for example, each additional year of her prison sentence was estimated by the Parliamentary Budget Officer to needlessly cost taxpayers between $343,000 and $600,000 per annum. By contrast, the cost of supporting a woman for a year while she serves a sentence in the community is $18,000, which also increases her chances of reintegrating successfully into that community, thereby decreasing her likelihood of being criminalized again in the future.

Twenty-five per cent of those in federal prisons are seniors, oftentimes as a result of life sentences. Many live with disability and illness, including dementia. Caring for individuals in provincial health care systems is not cheap, but it is significantly less costly than keeping them in prison. We must ask ourselves if paying hundreds of thousands of dollars per person per year for the label of being “tough on crime” is worth it when we know that mandatory minimums do not achieve the safer society they promise.

This brings us to the tenth and final reason why, in my humble opinion, we so urgently need legislation to address mandatory minimum penalties: The majority of Canadians know that it is the just thing to do. Last Parliament, the Minister of Justice and his predecessor were mandated to:

. . . review . . . the changes in our criminal justice system and sentencing reforms . . . [with the o]utcomes of this process [to] include increased use of restorative justice processes and other initiatives to reduce the rate of incarceration amongst Indigenous Canadians . . . .

The work of the Department of Justice included public consultations in which 9 in 10 Canadians supported judges having the discretion to not impose mandatory minimums. Unfortunately, no legislation resulted from this process. Minister Lametti, to his credit, has recently reiterated that there is “a great deal of scholarly literature on the benefits of judicial discretion” and that sentencing reform is a “critical part” of his responsibility as a minister.

Since the precursor to Bill S-208 was first introduced in 2018, the overrepresentation of Indigenous peoples in prisons has continued to increase steadily by several percentage points, representing too many people every year. At least 50 new cases have been released by courts, finding various mandatory minimum penalties to be unconstitutional. Witnesses testifying to the Senate committee on Bill C-75, including Aboriginal Legal Services, the Canadian Bar Association, the Barreau du Québec and the Canadian Association of Chiefs of Police, have taken pains to reiterate the need for urgent action to fix the harmful consequences of mandatory minimum penalties.

Bill S-208 responds to the recommendations, concerns and priorities set out by such authorities as the Supreme Court of Canada; the Senate Legal Committee; and many other committees, commissions and inquiries, including the Truth and Reconciliation Commission, and the National Inquiry into Missing and Murdered Indigenous Women and Girls.

Colleagues, this bill is not a replacement for systemic review and reform of sentencing. We still need a sentencing and/or law reform commission to review the overall system. Three out of four Canadians said this to the Department of Justice during 2018 consultations.

Urgent action is needed to prevent injustices associated with mandatory minimum penalties in the meantime. This legislation is admittedly a small but important step. I look forward to us working together to send this bill to committee and to deliver long-overdue legislative action on mandatory minimum penalties. Meegwetch. Thank you.

Honourable senators, I’m pleased to have this opportunity to speak to Bill S-208, a bill that was introduced by our colleague Senator Pate, as we know. It amends the Criminal Code to give judges more discretion in their sentencing and allows them not to impose mandatory minimum sentences.

I want to take a moment to thank Senator Pate for her vigilance, her persistence, her passion and her expertise. We are fortunate to count her as a colleague among us and for the insight she brings to our deliberations.

I want to touch on a couple of reasons why we should allow judges not to impose mandatory minimum sentences. It’s a little hard to do that after Senator Pate just went through 10 reasons, but I’ll touch on a couple of them; I won’t go through the whole list.

First of all, as we know, in all aspects of life, every situation is unique. In this case, it deserves not just a legal remedy but also to have a human perspective and a human screen through which we look when we look at the circumstances and facts in front of us.

Allowing every situation to be judged individually ensures the opportunity for justice to be preserved through the law. Justice for the victims, of course, but also for perpetrators where circumstances warrant. I want to stress that. We are always talking about where the circumstances warrant.

Another reason, and Senator Pate touched on this, is court delays. In this chamber we’re all very familiar with the R. v. Jordan case and that coming out of that the Supreme Court set deadlines for provincial and superior courts in order to prevent unreasonable delays. I remember from my time back in the Ontario legislature when the Askov decision came down and there were many cases that ended up being thrown out because of unreasonable delay, many of them very serious cases. Justice was certainly not done in those circumstances.

It is often thought that mandatory minimums are tough on crime, but if we end up in a situation where justice is completely denied because court cases are thrown out, we’re not being tough on crime at all. In fact, this Senate’s own Legal Committee, in its 2017 report entitled Delaying Justice is Denying Justice recommended:

. . . that the Minister of Justice undertake a thorough review of existing mandatory minimum sentences in order to ensure a reasonable, evidence-based approach to when they are appropriate . . .

A shorter sentence, where appropriate, would reduce the cost of incarceration. Senator Pate just took us through that. I won’t reiterate all of that. But these things are all factors to be considered when we look at the broad evidence about the effectiveness of mandatory minimums.

One of the most important motivators for me in supporting this particular bill is that mandatory minimum sentences lead to an over-representation of people from marginalized communities. I saw this first-hand. Many of you know that very early in my career — so that was a lot of years ago — I worked in the corrections system.

We’ve often talked about the injustice for Indigenous peoples in this chamber in our deliberations. We know that mandatory minimums are one of the reasons for over-representation of Indigenous peoples in prisons. Denying judges the ability to fully consider an individual’s Indigenous history in their sentencing is a contributing factor to that over-representation. As we heard — and this shocks and sickens me — Indigenous women, in particular, are being overrepresented in our prisons. In fact, they represent 42 per cent of the Canada-wide female prison population. Compared to their share of the population, these numbers reflect an injustice that stares at us in the face.

The Prime Minister, in his mandate letter to his cabinet members, promised to continue:

. . . moving forward on reconciliation with Indigenous peoples.

Reconciliation includes allowing judges to waive mandatory minimum sentences for Indigenous offenders where appropriate.

This is also true for racialized communities and for people who live in poverty. Again, I saw first-hand the carnage in people’s lives with over-representation and overcriminalization within our criminal justice system.

Now, there are counter-arguments that support mandatory minimum sentencing. I want to touch on some of those because it’s important to understand why we came to implementing these. It wasn’t a malicious effort. There were reasons that people looked at that they thought were evidentiary. I know, over time, that most of this has been debunked, but let’s take a look at it.

Some argue that surely there are categories of crime that are so heinous that judges should automatically assign a minimum sentence. It’s true, there are a lot of very serious crimes, and a lot of harm done to victims and to communities. I’m going to give an example. A crime such as kidnapping is extremely serious, but every case needs to be assessed individually. I put to you the case of a parent who is escaping from an abusive partner and who may “kidnap” the child from the parent who has custody at that time as a matter of safety for themselves and for the child. Each case has a specific context. Surely we want our justice system to look at the situational context that is in place in each case before coming to a conclusion. We often say in politics that one size does not fit all. In terms of regional considerations, we often talk about Ottawa or our provincial capitals coming down with policy directions that don’t relate to local communities and local complexities. One size does not fit all in many situations. This is so true in sentencing.

We hear about a counter-argument that these sentences will be an aid in deterrence, and we’ve heard that many times over the years. When the introduction of mandatory minimum sentences was brought forward in Canada, that was one of the very important reasons that was considered and that Parliament determined to move forward with. As we’ve heard — and I won’t go into all the detail and cite studies today — there is a significant body of evidence that mandatory minimums do not act as an effective deterrent.

Furthermore, and I want to stress this, to me this is really important and it’s important for those who are hesitant and who believe that there are good reasons for mandatory minimum sentences. This bill only allows judges to have the discretion not to apply a mandatory minimum sentence. In certain serious cases, a judge will use their discretion to apply mandatory minimum sentences or sentencing guidelines, or, as we know in some cases, longer than mandatory minimum sentences. It’s about the discretion and it’s about looking at the fact case, the evidence and the situational context in every case that comes forward.

I believe we should not limit a judge’s discretion for reducing prison terms on a number of criminal offences if they believe the facts of the case do not warrant such a sentence.

I also want to acknowledge some of the reasons that contribute to our country developing public policy and the move to adopt mandatory minimum sentences. Every one of us knows of a case or cases where justice was not done for victims or for communities because of sentences that were shockingly too short, that in our moral and values consciousness, did not accord to the damage and the harm of the crime that was perpetrated. All of us know of those cases. I have seen way too many cases that involved violence against women and where the sentencing failed to provide justice for those victims.

Many of us participated in the debate during the last Parliament, and this bill is coming back to us. It is important that the government should reinforce its judges’ training as it relates to their awareness of Indigenous issues, sexual assault cases and other sensitive systemic issues that courts have failed to address in the past. I don’t want to simply blame the courts — courts, policing, all aspects of the criminal justice system are striving to come to a higher level of understanding of the sensitive issues that can affect the situational context that is before them.

On Tuesday, Justice Minister David Lametti reintroduced a bill that was originally brought forward by the Honourable Rona Ambrose. I supported that bill as it came from the other place to our Senate Chamber. That bill did not make it through the process in the Senate the last time around, and for lots of reasons. We don’t need to place blame. We need to review that bill urgently and bring it forward. I want to be clear that I support that bill and will support it as it comes through.

Senator Pate’s bill, Bill S-208, is a step in the right direction. It will offer a way for judges to use the training that we just talked about to assess each situation individually, to apply the appropriate cultural and historical context, and to bring, as I said earlier, a human perspective, a human lens to the sentencing of individuals.

This bill was before us in the last Parliament as Bill S-251. It was considered by this chamber and it was referred to the Legal Committee. Once again, I ask you to join those of us who have spoken and will speak, who support this bill, to refer this to the Legal Committee to be studied.

We heard from Senator Pate, and I want to repeat: Our Standing Senate Committee on Legal and Constitutional Affairs collectively, in their 2017 report, Delaying Justice is Denying Justice, and the more recent National Inquiry into Missing and Murdered Indigenous Women and Girls, and many other voices, reports, academics and advocacy voices — voices of victims as well as the criminal defence bar, et cetera — have recommended reviewing mandatory minimums. With this in mind, it is important that the Senate study this issue and bring it forward.

It is my belief that we need to allow our judges to make decisions on criminal matters to protect our society and to focus on justice. When I say that, I am talking about justice writ large. Thank you, meegwetch.

Congratulations and thank you for your speeches, Senator Lankin and Senator Pate.

You referred to the study done by the Standing Senate Committee on Legal and Constitutional Affairs, of which I was a member, on delays in the justice system. It is known as the Runciman Report, and I applaud it. The committee recommended that the government review minimum sentences. However, Senator Pate’s bill talks about eliminating them. Do you think the terms “eliminate” and “review” have the same meaning?

In neither my dictionary nor in my language does that have the same meaning. But let me comment on the fact that, as a member of the Legal and Constitutional Affairs Committee over the last couple of years, there have been numerous bills before us that would amend the Criminal Code — the hybridization bill, a number of others. This issue of mandatory minimum sentences came up over and over again. The government of the day has made a commitment to eliminate mandatory minimum sentences.

Every time we asked what are you doing, when are you doing it, the hybridization of many of the indictable offences did not eliminate mandatory minimum sentences for some of those that carry that qualification, that requirement. And the answer was: We are going to review it; we are going to do it all together.

It hasn’t been done. Now, governments always have a lot of priorities, but this is a commitment, as Senator Pate has repeatedly stated, that there has not been adequate, sufficient or timely movement on. So that is why I support this measure coming forward. Whatever review is going on within the Department of Justice, I hope that they will come forward in a timely manner to intervene in the study of this proposed legislation at our Legal Committee at second reading. Thank you very much.

If I understand your position correctly — and it seems entirely logical to me — you would be more in favour of reviewing the scope of mandatory minimums, rather than eliminating them.

Are you asking for five minutes to answer the question?

No, I’m asking for 30 seconds.

Is it agreed, honourable senators?

Thank you, colleagues. That review within the Justice Department I hope will be coming forward. I hope that the commitment of the government both to review and I think the sentiment to move towards abolishing will come forward in that review. I await the hopeful collision of their review with second reading of this bill.