Criminal Code—Controlled Drugs and Substances Act
Bill to Amend--Second Reading--Debate
June 22, 2022
Honourable senators, I rise to speak to Bill C-5 introduced by Senator Gold earlier this week and, if I may say so, spoken to in depth and with elegance.
I support the bill, but am hopeful that at committee we will have the opportunity to explore the bill and potentially go further.
Many colleagues will have a deeper empirical appreciation than I do of the implications of many aspects of this bill. I will not try to replicate those deeper understandings or appropriate them. Today, I would like to speak to the principles associated with two aspects of the bill and that I hope we will have the opportunity to study in depth.
The first relates to the removal of a series of statutorily imposed mandatory minimum sentences for approximately 20 criminal offences. As others have noted, including the sponsor of the bill, these offences represent a minority of the existing mandatory minimums in federal criminal law. I want to explore the principles upon which this initiative is based and will suggest that these principles are equally applicable to the sentences for the remaining 50 or so mandatory minimum sentences.
I want to suggest that there are two governing principles that underlie this aspect of the bill. The first is the principle of constitutionality and the consequences of unconstitutional laws on the books. As we have heard, a significant motivation for this amendment is that over 40 courts have struck down mandatory minimum sentences as unconstitutional violations of the Charter of Rights and Freedoms, either because of the imposition of cruel and unusual punishment or as an unjustified violation of the principles of fundamental justice.
The presence of mandatory minimums has created at least four problematic consequences. First, they have, in many cases, led to incarcerations that can only be viewed as harsh and unfair and, as we have heard, these harsh and unfair consequences have been disproportionately assigned to offenders from racialized and marginalized communities.
Second, consider the circumstances where you are charged with an offence that carries a significant mandatory minimum sentence. Even if you think you are not guilty of the offence, the sword of that mandatory minimum hanging over your head is liable to induce you to admit to a lesser offence just to avoid that sword. The coercive nature of mandatory minimums is unacceptably weighty, and consequently too susceptible to leveraging unfair plea bargains.
Third, for those who wish to challenge the constitutionality of a mandatory minimum sentence, they must launch and fund such a challenge on their own. Given that many who are caught up in the criminal justice system are of modest means, to say the least, absent the willingness of a lawyer or legal organization, the opportunity to launch such a challenge is minimal — unfairly minimal.
Fourth, the cases that challenge mandatory minimum sentences are complex and, in certain respects, unique. They consume an enormous amount of both court time and court cost. They require courts to develop imaginative approaches to analyzing the constitutionality of mandatory minimums. Indeed, one of our leading judges on these issues, Justice David Doherty of the Ontario Court of Appeal, is rapidly becoming the “emperor” of so-called “reasonable hypotheticals,” a necessary, though unusual, technique to analyze mandatory minimums.
These questions of unconstitutionality are important to us as senators in relation to our responsibilities, and the implications of unconstitutional mandatory minimums have great significance for offenders, the system and the big issues of access to justice that deserve our serious consideration.
The second principle involved here with respect to the initiative to eliminate a number of mandatory minimums is an implicit statement of our confidence in our judiciary and their wise exercise of discretion. This is also really important. We are a society governed by law and, as we like to say, the rule of law. We, as senators, are part of that framework, but judges are at the centre.
Given the importance of the rule of law, it is surely an understatement to say that we repose enormous authority in, and responsibility upon, our judges. With rare exceptions, we try our best to pick the best people available to serve as judges. Once there, they have important work to do in ensuring that proceedings are fair; they hear and assess the witnesses; and they reach decisions, some of which are life-determining for the people before them — weighty decisions, to say the least.
That is no less true in cases where mandatory minimum sentences are at play.
But keep this in mind: Long before the sentencing decision and question arise, it is the judge who must oversee the proceedings and, in most cases, weigh the evidence in determining this most important question of whether the person before them should be convicted of the offence in the first place. So is it not passing strange that we parliamentarians have decided that these very judges are not capable of administering the next stage of justice; they cannot be fully trusted to impose a fair and just punishment?
Sentencing is a process itself that is guided by a body of law — the law of sentencing — that has been developed over the decades. At my law school, for example, we offer a popular course exclusively dedicated to sentencing in criminal law. So there is a thoughtful system in place.
If one thinks that the judge got it wrong in the application of those sentencing principles, the decision is capable of being reviewed.
It is a remarkably good system.
I don’t want to be uncharitable to parliamentarians, and I have not studied the work of Parliament when mandatory minimum sentences were introduced over the years, but my guess is that this body of law — this law of sentencing — was not much studied at the time.
Regarding this bill, to the government’s credit, the bill expresses the support for and endorses those two principles: a commitment to constitutionality and a recognition of the independence of judges and their exercise of judicial discretion in doing the difficult jobs we ask them to do. Each of those principles is applicable to the amendments before us that will remove some mandatory minimums.
But here is the rub for me and, I think, for others: Each of these principles also applies to those mandatory minimums left in place, not even moderated where exceptional circumstances exist and might justify them. Indeed, to the credit of Senator Jaffer and other colleagues in this house, the sponsorship of other bills would take those two principles to their logical conclusion and address the range of mandatory minimums in honourable and principled ways.
On that point, I want to end by observing that some may say that political expediency — half a loaf — is sometimes necessary; that is, half measures are required. I’m new to this kind of work, and I think I understand that principle in a general way, but we’re talking about principles here that are deeply embedded in our law. We are a people who adhere to law, especially our Constitution, and we trust one of the best judiciaries in the world to deliver the law well, honourably and fairly.
My hope is that we will choose such principles over expediency and go further than Bill C-5 on this issue of mandatory minimums.
My second set of comments relating to Bill C-5 is focused on the diversion measures contemplated for inclusion in the Controlled Drugs and Substances Act. I support these measures but want to pose two questions or concerns. The first is contextual. Here I am borrowing and, to some extent, critiquing the observations that Senator Gold made in his speech with respect to the bill.
The bill proposes that prosecutions proceed on charges of simple possession only if the prosecutor is of the opinion that none of the alternatives — a warning, referral or alternative measures — is appropriate. That none of those other measures is appropriate is a requirement for a prosecutor to proceed. But by any other measure — and to some extent, Senator Gold referenced this — this is a description of prosecutorial discretion. All of this authority already exists for prosecutors, so the section seems redundant and unnecessary.
Furthermore — and this is a mystery to me, although perhaps this is already in place — nearly all the charges under the Controlled Drugs and Substances Act are prosecuted by federal prosecutors or their agents rather than prosecutors within provincial governments who prosecute most other criminal matters; that is, those who handle drug cases are agents of the Attorney General of Canada. The Attorney General can give this directive to prosecutors without one word of legislation. Although Senator Gold observed that this is helpful in provincial contexts, the fact of the matter is that provincial prosecutors do not prosecute these cases except in the most extraordinary of circumstances.
It feels like a redundancy. I support the concept, but it seems to me that it’s unnecessary in legislation.
My second and, quite frankly, more serious concern with this part of the bill is the curious disconnect between what prosecutors are to do in the context of alternative measures — the process I have just described — and what is required of police officers.
This is a fairly significant dimension of the bill in real time. This is where the issues of individuals facing potential charges are encountered the most. In most Canadian jurisdictions, when the police officer has a reasonable basis on which to believe that a crime has been committed, they have the authority and discretion to lay a charge — in legal terms, “laying an information.” The same is true particularly for charges of simple possession with respect to the Controlled Drugs and Substances Act.
You will recall that the proposed amendment for prosecutors requires that they proceed with a charge only when alternative measures are inappropriate. The way it works is that they take up the prosecution of the charges laid by the police officers and make a judgment. Hence, you would expect that, for police officers who initiate the process, the standard for laying the charge in the first place — that is, only when other options are inappropriate — would be the same. But it is not. Police officers need only consider whether it would be “preferable” to pursue an alternative measure. That is far less than a mandatory requirement: “prosecution only where no other option is appropriate.”
You might be inclined to think, “This is okay. The prosecutor will clean things up.” True, but that fails to take into account a number of observations, including ones Senator Gold made, about the consequences of being charged: if one thinks about it, the lost opportunity of an alternative measure; the embarrassment to an accused of a charge, though subsequently withdrawn, having been laid in the first place; and it doesn’t take into account the waste of police, court and prosecution resources when matters are resolved later in the process than necessary.
If “only where appropriate” is the requirement for proceeding with a charge in court, surely it should be the requirement for laying the charge in the first place. That has to be addressed.
While I support the bill, in my view, it can be improved and expanded. I hope that those and other aspects of Bill C-5 will be carefully considered at committee and that a good initiative can be made even better.
Thank you, hiy hiy.
Senator Cotter, I may well have misunderstood you, so I wanted to ask you about something. At one point in your speech, you seemed to indicate that when these particular bills — the bills that bring forward these mandatory minimums that were in place and which this particular bill seeks to remove — first came into place, parliamentarians may not have taken enough time to study them. In the sentencing aspect — I can’t speak for the House of Commons, and I’ve only been here nine and a half years — I can tell you that during the time the Harper government was in place and during my time at the Senate Legal Committee, we brought forward many of those mandatory minimums and we absolutely, every single time, devoted diligent study to those particular mandatory minimums.
Is that what you were referring to? When you say “parliamentarians,” of course that refers not only to the House of Commons but also to the Senate, and our Senate Legal Committee always does diligent study.
I didn’t go back and study the record, Senator Batters, and I wasn’t referring to the quality of examination of mandatory minimums. I was referring to the vast body of law in the law of sentencing, and my guess is that it was not extensively studied and adequately enough respected in this exercise. In my judgment, the introduction of mandatory minimum sentences imposes constraints on judges implicitly because of lack of confidence in them and the system they administer.
Honourable senators, the government’s goals for Bill C-5 are laudable. I repeat, they’re laudable goals, and I support them. Regrettably, Bill C-5 will not significantly reduce the number of federally imprisoned Black or Indigenous people, most especially not Indigenous women.
In the 1999 Gladue decision, the Supreme Court declared the overrepresentation of Indigenous peoples in prisons a national crisis. At the time, Indigenous people represented 10.6% of the country’s federal prison population. Today, that percentage has risen to 32%. Even worse, Indigenous women now make up half of all women in federal prisons, and 1 in 10 federally sentenced women are Black.
In 2015, Prime Minister Trudeau tasked the Minister of Justice with decreasing the number of Indigenous people in prison and repealing mandatory minimum penalties in accordance with the Calls to Action of the Truth and Reconciliation Commission, or TRC, which directed:
. . . the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences. . . .
This and reconciliation remain within the mandate of the Minister of Justice. Bill C-5 will not meet these goals and falls far short of the TRC Call to Action 32 and the subsequent Calls for Justice 5.14 and 5.21 of the National Inquiry into Missing and Murdered Indigenous Women and Girls.
Mandatory minimum sentences are a primary contributor to Indigenous and Black overrepresentation in prisons. As the Missing and Murdered Indigenous Women and Girls inquiry brought into stark relief, Indigenous women do not receive just, fair or equitable treatment under the law. This is Canada’s legacy. The TRC and Missing and Murdered Indigenous Women and Girls inquiry traced Canada’s history of abuse and mistreatment of Indigenous peoples from the ongoing effects of colonialism, including the legacy of residential schools, which reveals itself in the current realities of mass incarceration.
Clearly, urgent action is needed to address this crisis. Bill C-5 will remove mandatory minimum penalties for some drug offences, some firearm offences and one tobacco-related offence. But most mandatory minimums will remain on the books, including the mandatory life sentence for murder. By removing only some mandatory minimum penalties, we are effectively sanctioning continued injustice in Canada.
Retaining the vast majority of mandatory minimum penalties is said to be justified on deterrence grounds. This logic often resonates with people because of a view that long, mandatory sentences will prevent people from committing crimes. If this were true, punishment would not have been abandoned in virtually every other sphere, from parenting to educating. More to the point, if it were true, then we should expect that the United States — the leader in the proliferation of mandatory minimum penalties — would be the safest, most crime-free country in the world.
Yet the deterrent effect of mandatory minimum penalties has been debunked as a myth. The government’s own research reveals that mandatory minimum sentences do not deter and are less effective than proportionate sentences reached through the exercise of broad judicial discretion. I want to thank Senator Cotter for outlining what exactly that means.
In 1952, the Royal Commission on the Revision of the Criminal Code concluded that all mandatory minimum sentences should be abolished. For at least seven decades, experts, commissions of inquiry, judges, community-based advocacy groups and reconciliation commissions have advocated for the repeal of mandatory minimums.
Instead, in this bill, we see the repeal of a select few mandatory minimum penalties. It will barely put a dent in the overincarceration of Indigenous and Black people, not only because it will apply to so few offences but also because mandatory minimum sentences add jet fuel to discrimination and discriminatory law enforcement and prosecutorial practices, magnifying the impact by preventing sentencing judges from addressing the context of offences and the ways in which the criminal legal system replicates and deepens discrimination.
Mandatory minimum sentences coupled with biased police response, investigation and charging practices create miscarriages of justice. For vulnerable populations, interactions with the police are often intimidating and traumatizing. Experiences of force and abuse from authorities begin at a young age for many Indigenous women, often in times when they need support and protection, and that abuse can continue into adulthood.
When police are called but disbelieve Indigenous women, not only are Indigenous women further traumatized, but too many are left to protect themselves. If they have used any force reactively — even defensively — they are likely to find themselves criminalized and imprisoned.
Too often, colonial attitudes held by members of the legal system regard Indigenous women as more blameworthy than others and deserving of harsh punishment by the justice system. This has been labelled as hyper-responsibilization and is a phenomenon experienced by many, particularly the 12 women recently profiled in our report.
As was also noted in The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, the Canadian legal system:
. . . criminalizes acts that are a direct result of survival for many Indigenous women. This repeats patterns of colonialism because it places the blame and responsibility on Indigenous women and their choices, and ignores the systemic injustices that they experience. . . .
— and which directly contribute to the behaviour for which they are criminalized.
Mandatory minimum penalties shackle judges, forcing them to impose sentences of incarceration that do not appropriately reflect the context, circumstances or legal blameworthiness of the accused or the abuse they may have experienced within the law enforcement process.
Mandatory minimums break with Canada’s historical trust of our judiciary that granted them discretion in sentencing. Before the fervour for mandatory minimum sentencing started sweeping across our criminal laws in 1995, judges were entrusted to develop individualized sentences that balanced the gravity of the offence against the culpability and circumstances of the accused. When the Criminal Code was first enacted in 1892, it contained six mandatory minimum penalties. Until 1995, the number of mandatory minimums remained constant at around 10.
Now there are more than 70 offences carrying mandatory minimum penalties — this in spite of the fact that judicial discretion in sentencing is overwhelmingly supported by Canadians. In 2017, in a report commissioned by the Department of Justice, 9 out of 10 Canadians wanted the government to consider giving judges the flexibility to not impose mandatory minimum sentences.
The bill does not respond adequately to the judicial decisions that have found mandatory minimum penalties in violation of the Canadian Charter of Rights and Freedoms.
One glaring omission is the failure to deal with the mandatory minimums regarding parole ineligibility for murder, which is particularly important for reducing the overincarceration of Indigenous women. The sentence of mandatory life, in combination with parole ineligibility for at least 10 years for second-degree murder, and 25 for first-degree murder, was the trade-off for the abolition of the death penalty.
Even then, a key component of the parole ineligibility period was a provision allowing for a special judicial review and a five‑step process to which a person may seek access after they have served 15 years of a life sentence. The provision was colloquially referred to as a “faint hope clause” of the Criminal Code.
The significance of the faint hope clause was considered by the Supreme Court of Canada in 1990 when the constitutionality of the mandatory life sentence was challenged. The Supreme Court at that time rejected the challenge and upheld the mandatory sentence on the basis that the faint hope clause preserved the constitutionality of the life sentence for murder.
In 2011, the Conservative government repealed the faint hope clause, thereby further limiting opportunities for parole and rendering the mandatory minimum unconstitutional.
Moving forward, we must consider that last year, on the first National Day for Truth and Reconciliation, Prime Minister Justin Trudeau gave a speech saying that:
Today, we . . . recognize the harms, injustices and intergenerational trauma that Indigenous peoples have faced — and continue to face — because of the residential school system, systemic racism, and the discrimination that persists in our society.
Colleagues, it’s time for us to do our job. Let’s help the government along this path by making Bill C-5 fit for purpose.
Meegwetch, thank you.
