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.

Honourable colleagues, I rise today as the critic for Bill S-207, An Act to amend the Criminal Code, regarding disclosure of information by jurors. This bill implements one of the main recommendations of the twentieth report of the House of Commons Standing Committee on Justice and Human Rights regarding a more lenient secrecy rule for jury deliberations. In its report entitled Improving Support for Jurors, the House Justice Committee proposed, in recommendation number 4, “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.”

Right now, the secrecy rule for jury deliberations prohibits jurors from disclosing any information pertaining to their deliberations to anyone. In this speech, I will tell you about the impact this rule has on the lives and well-being of jurors by sharing with you the testimony of former jurors and my own experience when I was selected to be a juror in a first-degree murder trial. I will also talk about what legal experts and mental health professionals have to say about this bill.

I would like start out by emphasizing something Senator Boisvenu said a few minutes ago: legal experts, mental health professionals and members of all parties belonging to the other place’s Justice Committee endorsed the form and content of the bill during the Forty-second Parliament. I would also note that the bill had gone through every stage in the House of Commons successfully. That is how I picture this bill moving through this chamber.

What do legal experts have to say about Bill S-207? In her testimony before the Justice Committee, Professor Vanessa MacDonnell, a member of the Criminal Lawyers’ Association, explained that introducing a very narrow exception to the juror secrecy rule would in no way undermine the finality of deliberated decisions, the integrity of the process and the desire to protect jurors from potentially being harassed. Given that this is a unanimous recommendation from Justice Committee members, there is no reason the rule should not be amended and no risk of violating the underlying legal principles.

Section 649 of the Criminal Code reads as follows:

Every member of a jury . . . who . . . discloses any information relating to the proceedings of the jury . . . is guilty of an offence punishable on summary conviction.

It is immediately obvious that this provision lacks consideration for the well-being and mental health of jurors. The changes to the Criminal Code proposed in Bill S-207 create an exception to allow jurors to disclose information about the deliberations to a mental health professional after the trial.

Jurors agree that this very specific exception does not compromise the substance or functionality of the rule of secrecy of jury deliberations within our judicial system.

With respect to the division of powers issue, the Justice Committee at the other place recognizes that, on the surface, the regulation of juries falls under provincial or territorial jurisdiction. Indeed, the administration of justice is a provincial responsibility under subsection 92(14) of the Constitution Act, 1867. Nonetheless, this provincial jurisdiction is limited when it comes to criminal law, which is a federal jurisdiction under subsection 91(27) of the Constitution Act, 1867. This explains the depth and scope of Bill S-207, which amends a very specific section of the Criminal Code while respecting the division of powers.

Of note, Victoria, in Australia, enshrined a similar exception to resolve this problematic situation. The recommendations in the Justice Committee report are based in part on that example.

To demonstrate just how important Bill S-207 is to former jurors, I will mention a few high-profile trials. These examples will help us better understand how being a juror can affect the lives of ordinary Canadians.

Take the case of Kristen French and Leslie Mahaffy. Imagine you are sitting on a jury bench. You are shown video evidence of the torture, rape and murder of these two teenage girls.

Take the case of little Victoria Stafford, or Tim Bosma. You are shown photos of their mutilated corpses, the autopsy reports and the details of their cause of death.

While conducting your civic duty, you are subjected to graphic images, gruesome details and immense suffering by the victims. You feel the horror of their death and are exposed to great anguish. Unspeakable harm has been done to human beings. As a member of the jury, you cannot discuss the evidence with other jurors or with members of your family for the duration of the trial that precedes the deliberations. Depending on the length of the trial, this period may seem endless. The jury room is the only space where you will be able to speak of these things and being among strangers, very little of your personal feelings and emotions are shared. All of this becomes stuck inside your head. It will stay with you for the rest of your life.

You are confronted by the accused. For the duration of the trial, you share the same courtroom space. You see the person daily. You can feel disgust, anger, anxiety. You can be fearful and develop uneasiness toward your personal safety and that of your family.

You must remain available for the length of the trial and be able to understand and interpret the enormous amount of information that is provided during the proceedings. At the end of the trial, you must keep all of this to yourself.

Right now, our courts are creating victims, the jurors, and denying them access to the means of remedying the harm they have suffered while performing a civic duty. The problems associated with the secrecy rule negatively affect the public’s perception of the Canadian justice system. We are asking ordinary Canadians to take on a task integral to the justice system without preparing them or giving them the tools they need to cope with the horrors they are exposed to.

It is crucial that former jurors be permitted to access the essential health care and services they might need. As a result, introducing this exemption to section 649 of the Criminal Code would increase the public’s confidence in the justice system while ensuring the well-being of our jurors. The report entitled Improving Support for Jurors in Canada, which was unanimously adopted in the other place, contains many recommendations that reflect the testimony of former jurors who experienced mental health problems, anxiety, post-traumatic stress and problems in their interpersonal relationships after serving on a jury.

I would like to read some of the testimony heard by the committee. Patrick Fleming, a former juror who appeared before the House committee as an individual, shared other negative impacts of the secrecy rule. He said, and I quote:

I felt isolated from my family and friends. I would distance myself, and I could not share what I was going through . . . I felt guilty for not being present for my family emotionally and physically.

Another former juror, Daniel Cozine, told the committee the following:

The trial was three weeks away from work and things like that. It impacts family life during those three weeks, and not just you but your spouse and your family. It is substantially longer than that when you come out of a trial and you’re trying to get your bearings again.

It is worth noting that most of the witnesses heard by the Justice Committee gave their evidence in a personal capacity since there was no organization or lobby overseeing the interest of the jurors at the time. They had the burden of mobilizing themselves to assert their rights and explain the problems associated with their experience. The Canadian Juries Commission has since then been formed, bringing a collective approach to this issue on a national platform.

I could have been a witness at this committee by telling my own story. In 1989, I was called to do my civic duty at a first-degree murder trial. The trial lasted two months and was an exceptional opportunity for me to learn about the criminal justice system. It was a setting where collaboration between strangers with diverse skills and backgrounds could lead to a unanimous verdict.

During the trial, we heard witnesses, received exhibits, saw photographs of the victim and received various reports, including the autopsy report and reports from the police who worked on the case.

Here again, I invite you to imagine the scene. You are in your jury seat. They show pictures of the victim when he was found lying on his side with grass in his hands as if this was the last hold he had on life. You feel his pain but you also feel helpless. This is not a movie. This is real and this is a human being. They show you gunshot wounds, six, two from a 12-gauge sawed-off shotgun and four from a .22-calibre handgun. Next, they show you pictures of the autopsy of the victim and explain how he died from internal injuries, drowned in his own blood. I could go on and explain where he was shot and the damage the bullets made, but I think you get the picture.

During deliberations, we spent several days sequestered without being able to communicate with our families, a particularly difficult time for the mother of a three-year-old and a five-year-old. Moreover, at the time of leaving, the judge informed us that section 649 of the Criminal Code indefinitely prohibited us from disclosing any information relating to the jury deliberations. In doing so, we would be prosecuted.

The trial ended on a Saturday afternoon. I went back to my regular routine, picking up where I had left off two months earlier. I was no longer the same person. Although it was positive, the experience left a mark and caused deep-seated fears, which led to post-traumatic stress. I didn’t really stop and think about this problem again until 12 years later, when I was doing my training in neuro-linguistic programming. That training helped me find the source of my deep-seated fears, gain a better understanding of their impact and the spontaneity of my reactions, and treat my post-traumatic stress without disclosing the details of the legal proceedings. As you can see, it still affects me today.

But only when the subject comes up.

As part of my study of this bill, I met with a former jury member, Mark Farrant, who shared his story with me and told me about the mental health struggles he has been experiencing for the past five years and the limited resources available. Mark is a fighter, a strong person. He is on a personal crusade to assert the rights of jury members. I decided I wanted to help him reach his goal.

As previously mentioned, the Canadian Juries Commission is a non-profit created by Mark in 2019. The mandate of the commission is drawn directly from some of the recommendations in the twentieth report of the House of Commons Justice and Human Rights Committee on improving jury duty in Canada.

Although the organization remains unfunded to this today, the road to achieving their objectives is well under way as they continue to build their program and to work directly with many stakeholders. For example, the Canadian Juries Commission is currently working with the Canadian Mental Health Association to construct a juror peer-support program which will train former jurors to consult with fellow jurors across the country. Deliberation has already been identified as a key stressor for many former jurors, thus the importance of Bill S-207 in allowing this organization to address an enormous issue effectively and without restrictions.

Mark is part of a group of former jurors who are prepared to testify so they can tell their story. These people want Canada’s justice system to stop creating victims and to give citizens who do their civic duty access to professional health services. What do health professionals think of Bill S-207?

Clearly, people who do jury duty can develop anxiety, post-traumatic stress, depression or problems in their interpersonal relationships. Yet, in most provinces, jurors carry out their duties in the absence of any consideration for their well-being.

Let me give you some examples of what a person may be subjected to as a juror. Jurors may be exposed to disturbing evidence. They may experience stressful situations by rubbing shoulders with the accused at the entrance of the courthouse or in the parking lot. They may develop a sense of guilt, unable to come up with the desired verdict expected by the victim or his family, or they may become victims of the media’s relentless harassment by arriving at a verdict that would presumably not render justice to the injured person. In addition, jurors can be sequestered for a long period of time, sometimes weeks. During this period, they lose access to their support system, being their family and friends, and they may feel guilty that they must leave their spouses or children alone for several weeks.

These situations can explain why some former jurors develop mental health problems. In fact, when it comes to scientific evidence of the impact of jury duty on people’s mental health, Dr. Patrick Baillie, who testified before the Justice Committee, confirmed that some evidence points to the occurrence of post-traumatic stress, symptoms of anxiety, depression, anorexia, sleeplessness and other forms of nervousness. With respect to the deliberation process specifically, research has shown that it can be the most difficult and stressful part of jury duty.

How can jurors manage their mental distress at the end of a trial when the last instruction they are given by the judge is a reminder that they cannot talk about the deliberations with anyone? A number of health care professionals agree that the existing juror secrecy rule restricts research on the effects of jury duty on an individual’s mental health.

This means that the juror secrecy rule hinders progress, and former jurors carry an even larger burden when they want to advocate for themselves, because they are the only ones who truly understand the jury experience. Again, the juror secrecy rule prevents former jurors from accessing the services of health care professionals.

Mark Farrant, who suffers from post-traumatic stress as a result of his juror experience, told me that he had been refused mental health services many times. Health care professionals are fully aware of this rule and have adapted their practices at the expense of the well-being and mental health of former jurors.

When a legal regime ends up denying a portion of the population access to essential health services, that is a big problem. The law, not the profession, is to be blamed for this bizarre situation. This experience, shared by former jurors, is just one example of the flaws associated with excessive latitude regarding the jury secrecy rule.

In light of the testimony, we can clearly conclude that Bill S-207 is a step in the right direction, at least according to mental health professionals. I want to point out that Bill S-207 is tackling a problem that transcends partisanship, namely the mental health of jurors in Canada.

By allowing the disclosure of information about a trial to a mental health professional, Bill S-207 takes aim at one of the greatest difficulties many jurors face after a trial. Jury duty is the cornerstone of our justice system. Besides being a civic duty that is sometimes crucial to ensuring the accused’s fundamental rights, forming a jury is one way to introduce the public’s perspective into the machinery of justice and ensure that civil society is represented in court to some degree.

However, serving on a jury should not negatively impact the mental health or well-being of jurors. Although it is vital, Bill S-207 is only a first step in the right direction. Under the division of powers, provincial and territorial legislatures are partly responsible for the reform of the justice system regarding the well-being of jurors.

I would like to mention an interim solution that is in place in some provinces and that could help jurors. It involves giving jurors access to debriefing sessions so that they can discuss, express and better understand the emotions they are feeling under the supervision of mental health care professionals. The group process would mitigate negative emotions and could help released jurors transition more easily to normal life.

For those who need one-time assistance, access to mental health care services and professionals would help them heal and find balance in their lives again. Any situation that allows former jurors to express themselves helps with healing. By expressing themselves verbally or in writing, jurors would have an opportunity to describe the psychological damage they sustained after experiencing traumatic events that put them either directly or indirectly in situations where they became victims.

In my case, I was juror number one in a first-degree murder trial, and this put me in a situation that made me a victim of the criminal justice system. I had to carry out my civic duty and I did not have a choice. A debriefing session might have allowed me to lighten the burden and gain a better understanding of the emotions I felt for several years, such as the sense of powerlessness in the face of abhorrent situations, the anger over wrongdoing and the confusion I felt about a society that trivializes these actions.

Bill S-207 does not address this problematic situation. However, the federal government must on its own initiative always seek to encourage the provinces and territories to offer these services, especially by exercising its spending power and by establishing programs to fund organizations working in this area. The government can provide leadership to make things happen.

In addition, in our discussions about the bill, Dr. Baillie raised an interesting point. He suggested an amendment that would ensure that no information disclosure to a mental health professional may be compelled as evidence by a court. This amendment echoes the language of section 10 of the Divorce Act.

The proposed amendment was also brought forward before the Justice Committee during Dr. Baillie’s testimony. I would suggest that the committee assign to this bill’s study the possibility to add an observation or a recommendation to this effect in their report.

To conclude, I would like to ask the following question: We have known for a long time the psychological damage suffered by jurors when they exercise their jury duty, so why did we wait so long before discussing and legislating the well-being of jurors? Is it because the law of silence no longer holds for jurors or because mental health issues are stigmatized and relatively new in the political arena?

Dear colleagues, setting partisanship aside, we can take action to help Canadians who are called to serve on a jury to have a better experience as jurors and to survive the act of doing their civic duty. I urge you to vote for this bill and to ensure that it is sent back to the House of Commons as quickly as possible. Thank you for your attention.

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.

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.