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Criminal Code

Bill to Amend--Second Reading--Debate Adjourned

October 27, 2020

Moved second reading of Bill S-207, An Act to amend the Criminal Code (independence of the judiciary).

She said: Honourable senators, as Canadians demonstrate and march in the streets, we must fulfill our pledge to do all we can to end egregious and ongoing individual and systemic acts of racism. We are witnessing more racist attacks — and deaths — of Black and Indigenous peoples, as well as people with mental health and intellectual disabilities, during police wellness checks and confrontations, in hospitals, in prisons and in long-term care, throughout our communities. Rhetoric rings hollow when coupled with silence or exculpatory excuses and explanations for such failures to act. The result is the implicit sanctioning of violence like that recently visited on Mi’kmaq fishers exercising their inherent rights. Nevertheless, it is rare that Black and Indigenous experiences of racist ideas, attitudes and actions capture public attention.

As Senator Lankin noted when speaking to a previous iteration of this bill — from her experience working in it — one of the starkest effects of colonialism and systemic racism exists within the prison system. In Canada, 44% of women in federal prisons are Indigenous and more than half are racialized.

There is no excuse for a system that so blatantly, and on such a massive scale, imprisons and removes racialized people, as well as those with disabling intellectual and psychological conditions, from their families and communities. For these reasons and more, an Ontario court recently ruled that applying a mandatory minimum jail sentence to six Indigenous women would have violated their constitutional rights. The court called out the mass incarceration of Indigenous peoples as the modern version of residential schools.

Twenty-five years ago, the Ontario report on systemic racism was released; and this year, the Parliamentary Black Caucus added its voice to urgent calls from the Truth and Reconciliation Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls to eliminate mandatory minimum penalties. They all point to the role that these sentencing measures play in perpetuating and entrenching systemic racism and the overrepresentation of marginalized — especially poor, disabled, and racialized — people in prisons.

Bill S-207 aims to respond to these calls by ensuring judges have the authority to not impose mandatory minimum penalties where to do so would be discriminatory or unfair. As Senator Forest-Niesing reminded us last session, Bill S-207 does not create discretion for judges; rather, it permits them to exercise the discretion —

Honourable senators, as I was saying, as Senator Forest-Niesing reminded us last session, Bill S-207 does not create discretion for judges. Rather, it permits them to exercise the discretion they have been extensively trained to exercise, and which was theirs prior to the sudden and exponential proliferation of mandatory minimum penalties in recent decades.

The need for action regarding mandatory minimum penalties is something that the government, to its credit, has long acknowledged. For five years, they have promised change. Bill S-207 can deliver on this unfulfilled commitment.

In 2015, the government’s election platform included the promise to implement the Calls to Action of the Truth and Reconciliation Commission, including call to action number 30, to eliminate the over-representation of Indigenous peoples in prisons by 2025, and call to action number 32, to eliminate mandatory minimum penalties. The Minister of Justice was mandated to review rules on sentencing in order to address this over-representation. Since then, the rates of incarceration have not abated; rather, they have continued to increase at an exponential rate.

This commitment to addressing systemic racism in sentencing was recently affirmed in the Speech from the Throne, after 26 cabinet ministers, including the Minister of Justice, signed the statement of the Parliamentary Black Caucus, which singled out eliminating mandatory minimum penalties as a priority.

In 2017, the government’s public consultations on sentencing revealed that nine out of ten Canadians support judges having discretion to not impose mandatory minimum penalties. Despite this support, subsequent reforms to the Criminal Code, including in Bill C-75, did not address mandatory minimums. Indeed, successive witnesses at the Senate legal committee called attention to this oversight.

The committee, in turn, reiterated these concerns in its report, citing its own previous recommendation for a review of mandatory minimums in its study on court delays.

Government action on these issues is important because Bill S-207 is not a replacement for systemic review and reform of sentencing. It does not delete mandatory minimum penalties from the Criminal Code; it only provides for exceptions to them. Courts and critics have rightly argued that a more fulsome approach is needed, but neither a sentencing nor a law reform commission has been established to undertake such a task.

Such bodies can drive proactive and evidence-based review and reform from a systemic perspective. The government could and should consider reactivating one or both. I want to urge, however, that we not delay for one instant consideration and passage of the small but vital step that Bill S-207 can offer in terms of urgent and meaningful action to redress ongoing harm, injustice and discrimination associated with mandatory minimum penalties.

We cannot afford to wait a moment longer, not when half of the decade set out by the Truth and Reconciliation Commission for eliminating over-representation of Indigenous peoples in prisons has elapsed without progress on mandatory minimum penalties.

Indeed, since 2015, when the Calls to Action were issued, the proportion of Indigenous peoples in federal prisons has increased from 24% to 32%. For Indigenous women, the numbers have increased from 36% to 44%. Over the same time frame, at least 130 new decisions have been released by our courts ruling that various mandatory minimum penalties infringe the constitutional rights of Canadians. We need to act colleagues, and we need to act now.

We also need to act effectively. We need to set the expectation that justice must be done in all, not only some cases. Looking over the wide range of mandatory minimum penalties that have been added to our justice system in recent years, it is no secret that politicians may feel more comfortable with the idea of eliminating some types of mandatory minimum penalties, and not others. But discrimination, the undermining of public safety and violations of constitutional rights are problems associated with all mandatory minimum penalties, not only some.

As Black and Indigenous leaders have urged, Bill S-207 therefore deals with all mandatory minimum penalties. Allow me to articulate four reasons why.

First of all, mandatory minimum penalties, no matter the underlying conviction that triggers one, contribute to systemic racism. Wherever a mandatory minimum applies, a court is prohibited from considering any sentence except the minimum. As a result, judges are prevented from doing their duty to take into account the individual and all relevant circumstances of the case in front of them, and consider whether alternatives are appropriate, particularly when it comes to acknowledging and redressing the realities of colonialism and systemic racism in the lives of Indigenous peoples, Black Canadians and people of colour, as well as those with disabilities.

Section 718.1 of the Criminal Code sets out that if a sentence is to do justice, rather than perpetuate injustice, it must be proportionate to the gravity of the offence and the degree of responsibility of the person being sentenced. Section 718.2(e) provides further guidance about what this means. It 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.

When section 718.2(e) was added to the Criminal Code in 1995, the then-Minister of Justice explained its purpose as follows:

The reason we referred there specifically to aboriginal persons is that they are sadly over-represented in the prison population in Canada. . . . What we’re trying to do, particularly having regard to the initiatives in the aboriginal communities to achieve community justice, is to encourage the courts to look at alternatives where it’s consistent with the protection of the public — alternatives to jail — and not simply resort to the easy answer in every case.

Twenty-five years later, we have not merely stalled in terms of progress, we have seriously failed. Interpreting section 718.2(e) in 1999, the Supreme Court of Canada wrote of the crisis of overrepresentation of Indigenous peoples in prison: that they were 12% of those in federal penitentiaries. Two decades on, that number has almost tripled.

What went wrong? Well, for one thing, mandatory minimum penalties. Around the same time Parliament introduced section 718.2(e), it also tripled the number of mandatory minimum sentences on the books from about 10 to 29. In the subsequent decades, the number of mandatory minimums exploded again to around 72.

Professor Larry Chartrand, a former Métis adviser to the Senate Standing Committee on Aboriginal Peoples, queried what parliamentarians were thinking as they increased the number of mandatory minimum penalties despite the recognition that alternatives to prisons are needed to do justice for Indigenous communities. He rightly asked whether we did not know or we did not care.

This month, an Ontario court took a different approach. The court found that the imposing of mandatory jail sentences attached to impaired driving convictions for six Indigenous women from the Pikangikum First Nation in northern Ontario would have violated their constitutional rights. Instead, they served their sentences in the community.

The decision considered the negative effects of colonialism in Pikangikum. For over 3,000 years, the community was a thriving, healthy and self-sufficient society. Within one generation of Canada forcibly removing the children of Pikangikum from parents and sending them to residential schools, people began to be jailed on a massive scale, often as a result of substance abuse — no doubt a method of anaesthetizing themselves to the past trauma. For decades, Canada has failed in its treaty obligations to Pikangikum.

Justice Gibson recognized that imposing the mandatory minimum penalties would result in penalties that were both harmful and unjust. A mandatory jail sentence would have removed the women from their communities, their families and their support networks. They would have been taken to a notoriously overcrowded, often quadruple-bunked provincial jail, where 94% of prisoners were Indigenous.

Noting the evidence of the warden of that jail that he was aware that prisoners were forced to participate in so-called fight clubs, Justice Gibson concluded:

When one considers the impact such brutalizing experiences must have on people and what they must carry home with them to their First Nations it is very hard not to notice the grotesque similarities between these kinds of ‘correctional institutions’ and residential schools that have caused such lasting damage to Indigenous communities.

He observed in particular that every one of the six women on trial was a mother, meaning that their incarceration would perpetuate decades of policies of forced separation of Indigenous parents and children. He called the resulting destabilization for families and communities a “direct extension of the corrosive effects of colonization.”

Senator Moodie has noted that the lives of approximately 350,000 children in Canada are affected by the incarceration of a parent in ways that range from psychological stress to economic hardship. Nelson Mandela once made a similar observation. After coming to power in South Africa, he liberated from prisons all women with children under the age of 12. Why? Because he recognized that state-sanctioned forcible removal of children from their mothers can condemn them and future generations to inequality and subjugation.

The Ontario court made clear that impaired driving harms the community but it made it equally clear that imprisonment is not working as a solution to this harm. It concluded that it is in the government’s best interests to consult with the community and find a new approach. It is time to support Indigenous peoples in the exercise of their inherent rights to self-governance and to shape the future of their communities. It is time to adopt alternatives to prisons that support instead of tear apart communities and that, according to Department of Justice research, actually make them safer in the long term.

Mandatory minimum penalties prevent this from happening.

Some ask how we can ensure that the discretion given to judges under Bill S-207 not to impose mandatory minimum penalties will not be used in ways that reinforce systemic racism and bias. This is a very important question.

Measures like Rona Ambrose’s Bill C-337, recently reintroduced as government Bill C-5, have drawn attention to racist and sexist court decisions that have inexcusably minimized and dismissed violence against women, particularly Indigenous, Black and other racialized folk and women with disabilities.

Relief from mandatory minimum penalties does not eliminate racism or other biases. Rather, it will shift discretion back to judges who must give public reasons for their decisions, rooted in legal principles, from others whose decisions are exercised with virtually no transparency or accountability to the public.

Currently, Crown prosecutors in effect make key sentencing decisions by determining what charges to lay and whether to pursue a charge with a mandatory minimum penalty. Their reason for choosing a particular charge may have little to do with legal principles. As Senator Jaffer reminded us last session, and as laid bare by Judge Ratushny’s The Self-Defence Review of the cases of women jailed for using lethal force against abusive partners, the spectre of a long sentence or mandatory prison time associated with a mandatory minimum is often used as a bargaining chip to extract a guilty plea to a lesser offence, sometimes even one that did not occur.

Research documenting systemic racism associated with plea bargains abounds. Those who may want to publicly contest or challenge racist policing or prosecutorial decision-making by airing their case in court can be pressured into accepting a guilty plea if they know they could face a long prison sentence because of a mandatory minimum penalty.

Discrimination against Black Canadians also means they are more likely to be denied bail as they await their trials. This then means they can face lengthy incarceration that creates additional incentives to plead guilty, including the risk of losing jobs, homes and families, particularly children.

We also cannot forget that more than 86% of women in federal prisons have histories of physical and/or sexual abuse. As the National Inquiry into Missing and Murdered Indigenous Women and Girls underscored, the factors that too often mean justice is not done for women who are victimized — from sexism, racism, ableism, to economic marginalization, intergenerational trauma and colonialism — too often also contribute to their criminalization. Under mandatory minimum penalties, these same factors also become irrelevant to sentencing, thereby compounding the injustices and subjugation of these women.

The harshest mandatory minimum penalty in the Criminal Code is life in prison. In the past decade, a staggering 45% of women sentenced to life in prison were Indigenous. The Self-Defence Review conducted by Justice Lynn Ratushny for the Department of Justice revealed an appalling connection between mandatory life sentences and criminalization of survivors of abuse and trauma.

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 manslaughter and even to second-degree murder, despite having potentially valid claims of self-defence.

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 to plead guilty was propelled by the spectre of a mandatory life sentence with no parole eligibility for 25 years.

Mandatory minimum penalties are yet another way that the criminal legal system fails to acknowledge and do justice for women with lived experiences of violence. While they are advertised as being “tough on crime,” in reality they are too often toughest on those who are already most marginalized and victimized.

The second reason we need judicial discretion with respect to all mandatory minimum penalties is the wide range of mandatory minimum penalties that courts have found to violate the constitutional guarantee of protecting Canadians from cruel and unusual punishment.

Canadian courts, including the Supreme Court, have struck down about 25 of Canada’s 72 mandatory minimum penalties, meaning that they are no longer in effect in at least one province or territory. What is left is a confusing and inconsistent patchwork of mandatory minimums.

In the absence of legislation such as Bill S-207, mandatory minimum penalties have to be challenged one by one before the courts, tying up significant court time and government resources, and requiring individual Canadians to shoulder the heavy burden of mounting constitutional challenges.

Colleagues, let us be clear: the case of the six women from Pikangikum First Nation is noteworthy, not at all because the injustice they faced is uncommon. These injustices happen all the time. I have personally been asked to weigh in on a number of similar cases. Unfortunately, the financial, personal and psychological burden of taking on such challenges is insurmountable for far too many. Too rarely is it recognized in Canadian law that those most impacted by unfair and unjust laws often do not have the means or the access to legal resources needed to ensure their rights are upheld, much less to contest unconstitutional laws.

This is a key reason why mandatory life sentences have not recently been subjected to the scrutiny of the courts. When mandatory life sentences were enacted in 1976 as a replacement for the death penalty, 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.

To attenuate the harshness of a mandatory life sentence, coupled with lengthy periods of mandatory parole ineligibility, the law provided for the “faint hope” clause. This rule allowed people deemed deserving the opportunity to apply to have their parole ineligibility revisited after serving 15 years of their sentence.

When mandatory life sentences were last challenged before the Supreme Court of Canada in the Luxton case in 1990, the court referred to the faint hope clause as one of the reasons for ruling that mandatory life sentences were not grossly disproportionate and passed constitutional muster.

That was 30 years ago, and since then, in 2011, the faint hope clause was repealed. Eventually, hopefully, some generous, committed lawyers, probably on a self-funded or pro bono basis, may see fit to assist women like the too many I have talked about here and whose stories were examined by Justice Ratushny in the Self-Defence Review and maybe they will bring forward a challenge.

Why on earth should we continue to abdicate our responsibility by waiting for this, and consequently permitting so much suffering in the interim? We have before us a well-understood systemic wrong that we as legislators can and must address. In 2016, the Supreme Court of Canada struck down a mandatory minimum penalty, but also called on Parliament to do better than sit back and simply wait for courts to provide piecemeal responses to a systemic violation of the rights of Canadians.

In the Lloyd case, the court recommended enacting “a safety valve that would allow judges to exempt” from the application of minimum penalties “outliers for whom the mandatory minimum will constitute cruel and unusual punishment.” This type of measure is seen in most other democracies whose laws include mandatory minimum penalties, such as England, Wales, New Zealand, South Africa, Australian jurisdictions and even a number of the American states.

Bill S-207 would take similar steps to ensure the integrity and constitutionality of Canada’s laws and the rights of Canadians by giving judges authority to not impose mandatory minimums where they would amount to an injustice.

The third reason we need Bill S-207 is that despite hopes and dreams to the contrary, there is absolutely no compelling evidence to suggest that any 1 of the current 72 mandatory minimum penalties has deterred crime, has made Canadians safer or has responded adequately to the needs of those who have been victimized.

In the Nur decision the Supreme Court of Canada summarized at least 50 years of research on mandatory minimum penalties and crime prevention in just 13 words: “Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes. . .”

Research suggests that in general if our goal is to prevent crime, then criminal law policy should focus instead on measures such as appropriate modelling of desired behaviour, non-criminal justice interventions and increasing the certainty of people taking responsibility and being held accountable for their actions.

In his remarks last session, Senator Dean emphasized that a public health rather than punitive approach is particularly important for the many people living with addictions and disabling mental health issues who are currently serving sentences shaped by mandatory minimum penalties.

For good measure, what does the Department of Justice research reveal? Allow me to quote a few highlights:

. . . on balance, the evidence suggests that severity may be less critical to deterrence than initiatives boosting the certainty of punishment.

Here is another:

Severe [mandatory minimums] seem to be least effective in relation to drug offences. . . . drug consumption and drug-related crime seem to be unaffected, in any measurable way, by severe mandatory minimums.

And another:

Enhanced sentences for firearm infractions show some promise, although findings here, too, are inconsistent or unclear. . . . A number of serious methodological flaws preclude more definitive assertions about the law’s impact.

And yet another:

While the evidence overall underscores the critical role played by vigorous law enforcement and the certainty of punishment in this area, studies provide little reason for optimism with regard to the efficacy of tough sanctions. . . . studies indicate that [mandatory minimums] and sanctions of increasing severity do not appear to reduce recidivism rates or alcohol-related road accidents.

At legal committee last Parliament, a representative of Mothers against Drunk Driving Canada testified that:

As a mom, as a stepmom, as a victim, I can’t support [mandatory minimum sentencing]. 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 is too late. We need to focus on deterring it before it actually happens.

In my years working with those convicted in relation to homicides, I can tell you, as I have told you before, that it is the rare person who would not give up their life if it could bring back the person who died. No sentence can do this. So we try to do our best to otherwise remedy those wrongs by providing other ways for people to pay their debts and provide future positive contributions to society.

Our system too often utterly fails to respond to the needs of those who have been victimized. In most cases the default is to encourage a person to participate in the criminal law process by advocating for a longer or more punitive jail sentence. Too often, little is available to them in terms of personal, social and economic supports. Parenthetically, colleagues, this is where a guaranteed livable income might also assist.

For too many, such vital needs as time away from work or access to counselling are unaffordable. For those in need of resources to try to live through the unthinkable, or those wanting to ensure that other people and other families never have to experience what they did, harsh sentences and mandatory minimum penalties are cold comfort.

People who support mandatory minimum penalties usually do so because they want to reduce crime and make everyone safer. I know of no one, of any political stripe, who does not share that same goal. We have known for a long time, however, that mandatory minimums and longer, more punitive prison sentences are the least effective and most costly way of achieving this outcome.

Every extra year a woman spends in federal prison can cost taxpayers between $343,000 and $600,000. By contrast, the cost of supporting a woman for a year while she serves a sentence in the community is estimated at approximately $18,000, which also increases her chances of successfully integrating into that community and thereby decreases her likelihood of being criminalized again in the future.

As Senator McPhedran reminded us last session:

Mandatory minimum sentences are essentially a security theatre being played out at the price of an accused individual’s Charter rights.

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 that their proponents promise.

This brings us to the fourth and final reason why, in my humble opinion, we so urgently need legislation, not only to address mandatory minimum penalties, but to address all mandatory minimum penalties. Canadians know it is just the right thing to do.

Nine in ten Canadians are open to giving judges the discretion to avoid mandatory minimum penalties, and research demonstrates that the more people know about mandatory minimums, the less they support them. In studies in Britain, people who initially said they supported mandatory minimum penalties ended up characterizing even mandatory life sentences as unjust and unfit once they were provided with factual details about individual cases.

Many of us do not stop to question the idea of a mandatory life sentence for murder. Early on in my life, I probably would not have questioned it myself. What I have seen again and again since then, however, is misogyny, racism, ableism, colonialism, class bias and other forms of systemic discrimination combining to deny people opportunities, resources and protection when they need it, and leaving them in desperate situations, facing choices that are unimaginable to most of us.

Last session, Senator Simons shared two such stories of two individuals who are now serving mandatory life sentences: a man with schizophrenia who was unable to access treatment and a woman whose grandson had taught her to use a gun because police were not responding to protect her from her abusive partner.

To this, I add the story of a teenager, a 19-year-old girl, whose abusive common-law partner moved her to a different province, taking her away from her family and friends. Her single father was so concerned for her that he left his home and moved with her younger siblings to a house down the street from her so that he could be there to try to protect her.

One night, the woman’s partner broke into her father’s house and raped her younger sister. After he returned and beat her, the woman stabbed him fatally as he was trying to return to again assault her younger sister.

The legal system did not protect this teenager when she was being battered by her partner, nor was she allowed the chance to argue in court that she was acting in defence of herself or her sister. Her story is preserved, for the purposes of Canadian law, as that of a jealous wife who stabbed her common-law partner because she thought he was having an affair. Her case is the Gladue case, which stands for the principle that it is the duty of courts to consider Indigenous history and alternatives to prison during sentencing.

Jamie Gladue benefited from neither. Like so many others with a defence, but facing an automatic life sentence if that defence fails — in a court system that has too long reinforced stereotypes about Indigenous peoples, especially Indigenous women, and perpetuated systemic racism — she pled guilty to a lesser charge, without a trial, and went to prison.

Bill S-207 would not take away mandatory life sentences or any other mandatory minimum penalties, but it would give a window of hope to women and girls like Jamie Gladue. It would provide the space to avoid unjust outcomes. It would allow courts to do the work of acknowledging and addressing, instead of expanding and perpetuating, the effects of systemic racism. But first it is time to demand from our leaders the political courage to say that the emperor has no clothes. Canadians deserve better than an empty promise. All evidence suggests that mandatory minimum penalties will not achieve safer communities. Worse still? They prevent us from making use of the tools that will.

Now is not the time for public pandering for fear of political fallout. To fail to take decisive action is to explicitly allow and reinforce discriminatory and stigmatizing myths and stereotypes. To fail to act in ways that will address systemic racism is to actively decide to reinforce and further such discrimination.

Now is not the time to hesitate or urge caution or require further study, not when mandatory minimum penalties have been multiplied without regard for empirical evidence or all too predictable consequences.

Now is the time to trust the evidence that a better way is possible and that Canadians understand the challenges before us, aspire to a country of fairness and equality, and will stand in support of policy that promotes the hope of justice for all of us, not merely some of us.

Let us work together, let us pass this bill. Meegwetch, thank you.

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