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Criminal Code—Controlled Drugs and Substances Act

Bill to Amend--Third Reading--Debate

November 15, 2022

Honourable senators, I rise today to speak to Bill C-5. I thank Senator Gold for his able sponsorship of this bill.

Regrettably, Bill C-5, as written, will not even come close to realizing the objectives outlined by Senator Gold. The good news, though, honourable senators, is that we have the opportunity to fix that. Indeed, as senators, we have the responsibility to amend this bill, return discretion to judges and thus help to guard against unjust and ineffective sentencing.

Bill C-5 rightly acknowledges that mandatory minimum penalties result in unfair sentences, particularly for members of racialized groups. Yet, it only seeks to repeal 20 mandatory minimum penalties. Not only is that less than a third of the mandatory minimum penalties currently on the books, but the bill covers only a fraction — 10 out of 44 — of mandatory minimums that have already been struck down as unconstitutional, and as cruel and unusual punishment by courts in different provinces and territories.

Bill C-5 will not achieve the government’s goal of reducing the number of federally imprisoned Black or Indigenous people, especially not Indigenous women. By repealing only some mandatory minimum penalties, or MMPs, the government falls far short of its commitment to reconciliation and the implementation of the Calls to Action of the Truth and Reconciliation Commission. Having promised the Canadian public that it would go further, the government now claims that Bill C-5 is the best they can do at this time — but is it?

I do not think so. The evidence remains incontrovertible that mandatory minimum penalties create and perpetuate inequality and mass incarceration.

The government says they cannot do more at this time, but they have provided no follow-up plan or clear next step toward fulfilling their promises to the electorate. The government has provided no — as in zero — rationale for its piecemeal approach to eliminating mandatory minimum penalties for some offences but not others, and leaving in place a patchwork of inconsistent sentences throughout this country. Bill C-5 reflects the government’s fear of being labelled — wait for it — “soft on crime.” They fear that some people may mischaracterize the removal of some MMPs as leniency or even full decriminalization rather than seeing the reality that it merely allows judges to do their job to impose fair sentences in some but still not all — let alone most — cases.

In 1952, the Royal Commission on the Revision of Criminal Code concluded that all mandatory minimum sentences should be abolished. For seven decades, umpteen experts have advocated for the repeal of mandatory minimums. The Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls, every law and sentencing reform commission, the Supreme Court of Canada as well as our own Senate Legal Committee and Human Rights Committee have recommended remedying the wrongs of mandatory minimum penalties.

A 2017 Department of Justice survey reported that 9 out of 10 Canadians support the government ensuring judges have the flexibility to not impose mandatory minimum penalties. In the 1999 Gladue decision, the Supreme Court of Canada 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 they are 32%. If it was a crisis in 1999, honourable senators, what on earth is it now? I say it is a shameful catastrophe that we must prevent growing worse.

This is most especially true when we talk about Black and Indigenous women. When I joined this chamber six years ago today, Indigenous women represented some 32% of the federal prison population. This year, Indigenous women make up half of all women in federal prisons, and 1 in 10 of federally sentenced women is Black. As it currently reads, Bill C-5 will most certainly contribute to increased criminalization and imprisonment, most definitely of Indigenous and Black women as well as increased seizure of their children by child welfare authorities.

The National Inquiry into Missing and Murdered Indigenous Women and Girls underscored that the issues that give rise to Indigenous women being more likely to go missing or be disappeared, murdered or rendered homeless and impoverished are the same conditions that caused them to be the fastest‑growing prison population in this country — namely, 50% of women serving sentences of two or more years and more than 75% of women serving sentences of under two years in most of the western provinces. As well, in Saskatchewan, Manitoba and the North, 95% to 100% of the young women and girls in youth jails are Indigenous. Most are first- or second-generation residential school survivors and have experienced the trauma of sexual and physical abuse, child welfare involvement and disabling mental health issues.

We are tasked with representing the interests of the most marginalized. In this case, colleagues, Indigenous and Black people are relying on us to not continue to relegate them to prison and their children to state care. We owe them our best efforts to stem this tide.

Honourable senators, let’s do what is right. The majority of the expert witnesses who appeared before the Standing Senate Committee on Legal and Constitutional Affairs explicitly advocated for the elimination of all mandatory minimum penalties or, at the very least, that we amend Bill C-5 in order to allow judges to not impose the mandatory minimum penalties that the bill does not repeal.

Why? Because mandatory minimum sentences are a primary contributor to overrepresentation of Black and Indigenous people in prison. They preclude judges from weighing all the evidence and then exercising their discretion to impose the fit and proper sentence. They prevent judges applying what are often referred to as Gladue factors. These section 718.2(e) sentencing provisions of the Criminal Code of Canada direct judges to limit the use of incarceration and to consider factors crucial to ensuring sentencing fairness. MMPs go against the very heart of sentencing principles.

Without amendment, Bill C-5 will not even put a dent in the overincarceration of Indigenous and Black people, both because it applies to so few offences and because, as witnesses before the committee underscored, the government’s own data shows this bill will add jet fuel to discriminatory charging and prosecutorial practices. It will magnify, replicate and reinforce discrimination.

The existence of mandatory minimum penalties drives up the average length of sentences for all criminal convictions. They also induce Crown prosecutors and defence counsel alike to plea bargain. Too many people charged with an offence that carries a mandatory minimum penalty are encouraged to plead guilty to lesser offences rather than face the uncertainty of a trial with the risk of a mandatory minimum sentence — regardless of whether they are guilty or, more importantly, they are not. Similarly, too often abused women who, after long and horrific histories of abuse, act to defend themselves or those in their care may use a weapon. If their reactions to serious threats of violence result in serious harm to their abuser, they will usually be charged with the commission of a violent offence: precluded from Bill C-5.

If the person dies, they will most often be charged with murder, which carries a mandatory minimum sentence of life imprisonment. Even when they may have acted in self-defence or defence of their children or others, the incentive to plead guilty to manslaughter to avoid the risk of a mandatory life sentence is overwhelming for most women in this tenuous situation. Many such women are Indigenous, yet this bill would not allow judges to appropriately examine the circumstances of each of such cases and tailor a sentence accordingly. In their recent decisions in Bissonnette, Ndhlovu and Sharma, the Supreme Court of Canada reinforced that Parliament has an obligation to address the appropriateness of penalties and should not be leaving the current piecemeal approach to sentencing reform to the courts.

In 2015, Prime Minister Trudeau promised the world:

. . . in partnership with Indigenous communities, the provinces, territories, and other vital partners, fully implement the Calls to Action of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

He tasked the Minister of Justice with decreasing the number of Indigenous people in prison, and every minister’s mandate letter includes a commitment to reconciliation and implementation of the UN declaration.

More recently, including at the UN and at the second National Day for Truth and Reconciliation, the Prime Minister reiterated his commitment and said he was “. . . hugely impatient to do even more.” Me too. Bill C-5 ignores the Truth and Reconciliation Commission’s Calls to Action 30 and 32 and the Calls for Justice 5.14 and 5.21 in the Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, which focus on repealing all mandatory minimum penalties and redressing the current overrepresentation in prison of Indigenous people, most particularly Indigenous women.

Many Indigenous and Black leaders — including Assembly of First Nations National Chief Archibald just today — called on us to heed the advice of our former colleague the Honourable Murray Sinclair and deal with this crisis now. We have already sentenced those waiting for this change to further catastrophe. We need to act to allow judges to do their jobs and free them from the limitations MMPs currently place on their ability to weigh all the circumstances and determine appropriate sentences.

The government claims that any amendment would effectively kill the bill. We have heard this before. They said this when the Senate insisted on maintaining women’s reproductive rights and also when the Senate added section 718.2(e) to the sentencing principles of the Youth Criminal Justice Act. They said the same thing when we insisted on the removal of gender inequality in Bill S-3 amendments to the Indian Act.

The list goes on, colleagues. In these cases, not only was the threat untrue, but the Senate amendments vastly improved the flawed legislation. The Senate must learn from the lessons of the past and not repeat mistakes. Let’s learn from our history of institutionalizing the most marginalized. Let’s rely on the evidence and not allow mandatory minimum penalties, or MMPs, and the resulting mass incarceration and consequent state removal of children to be our institutional legacy.

Colleagues, we have a catastrophe on our hands. We have allowed this to happen. Like residential schools, unmarked graves and the crisis of missing and murdered Indigenous women and girls, we know that our laws and policies are perpetuating and perpetrating injustices. Knowing this, we have a choice. We can continue to hide our heads in the sand or we can act. We can decide to fix Bill C-5 to try to remedy the wrongs, achieve the purposes that the government set for it and stem the tide of the most egregious harms.

Colleagues, those we serve need our courage now more than ever. It is our responsibility not to fail them. Meegwetch, thank you.

Hon. Bernadette Clement [ + ]

Senators, today I will be introducing an amendment to Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, which aims to repeal certain minimum sentences. We have discussed and debated this bill at length. Specifically, the other place heard from 52 witnesses. The Standing Senate Committee on Legal and Constitutional Affairs heard from 45 witnesses. This has not been an easy bill to get through. Now it is November 2022. It is time to pass this bill, but more importantly, it is time to do it right.

I’ve heard it time and time again: Perfect is the enemy of good. Bill C-5 is not good enough, and amendments will not make it perfect.

In 2021-22, Black persons represented 9.2% of the overall incarcerated population despite representing about 3.5% of the Canadian population. As approximately 5% of the adult population, Indigenous peoples continue to be vastly overrepresented in the federal correctional system, accounting for 28% of all federally sentenced individuals and nearly one third of all individuals in custody. Fifty per cent of the female population in Canada’s federal prisons are Indigenous women.

Looking at these numbers shows us how far we are from “good.” Perfect? No. That won’t be possible, but an amendment would make it better. The amendment that I will be putting forward moves Bill C-5 closer toward good — not perfect — with the goal of decreasing the over-incarceration of Black, Indigenous and marginalized Canadians.

A lot of discussion and action around Bill C-5 has become tangled up in politics, but let’s be clear. This isn’t about being soft or tough on crime. This is about laws that are effective and that accomplish our goals. Mandatory minimums are sold to the public as being consistent — a predictable punishment for crime. But the Department of Justice website lists March 2018 research that states:

The overwhelming majority of Canadians (95%) felt that the best approach for determining fair and appropriate sentences for offenders involves giving judges at least some degree of discretion.

I want to be clear. This is not about politics. It is more about what and how we communicate to the public.

In my reflections on Bill C-5 and considerations of an amendment, I went back to Senator Gold’s speech of two weeks ago in the chamber and I reread the witness testimony. Senator Gold quoted several of the committee witnesses, but I’d like to offer other quotes from these same witnesses because they believe in judicial discretion, which is why I am bringing forward an amendment today.

Catherine Latimer, Executive Director of The John Howard Society of Canada, stated:

We strongly support judicial discretion to impose less than the mandatory minimum penalties when needed to achieve a fair and proportionate sentence. With that view, we join many of the other witnesses and experts . . . recommending an amendment to this bill that would provide judicial discretion, where some have described it as a safety valve against the injustices that inevitably flow from mandatory minimum penalties. This is a huge opportunity to promote justice, and the John Howard Society urges you to act.

Michael Rowe from the Canadian Association of Chiefs of Police explained:

. . . Parliament could provide the judiciary with additional powers via a clause or safety valve, something other countries with mandatory minimum penalties have but that is currently absent in Canada.

Brian Sauvé, the president and founder of the National Police Federation, said:

I think that discretion in our judicial system is an excellent decision. I trust the judicial system. Honestly, judges get to be judges for a reason and we need to have more faith in those judges.

Janani Shanmuganathan, a lawyer who appeared at committee, told us:

The bottom line is that mandatory minimum sentences strip trial judges of the discretion to consider important things like the circumstances of the offence and the moral blameworthiness of the offender. It doesn’t allow a trial judge to stop and think, “Okay, what sentence does this person actually deserve?” Mandatory minimum sentences are a one-size-fits-all approach, except offenders come in different shapes and sizes.

She went on to say:

Really, it’s up to Parliament. It’s up to all of you and the way this government works to do that job of eliminating mandatory minimum sentences and putting the discretion back in the hands of trial judges, where it belongs.

In addition to experts, the Supreme Court of Canada and law and sentencing commissions, a clear majority of the 45 witnesses whom we heard in committee support judicial discretion.

I’m not a criminal lawyer. I’m a legal-aid clinic lawyer, a proud one. One of the most impactful lessons I have taken away from my three decades — yes, three decades — of practice concerns my multi-generational clients. Around the age of 40 — I will put you out of your misery; I’m 57 — after 15 years of practising law, I started providing legal services to the kids of the clients whom I had already represented.

This is the cycle of poverty and the lack of support for those who face barriers in our society. Individual casework motivates me; it continues to do so, but it sometimes feels hopeless. But do you know what else I did around the time I turned 40? I went into politics. I needed to come at this more systemically. I had to get involved with breaking the cycle. So here I am, at the decision table, with all of you.

At committee, our talented and dedicated colleague Senator Pate presented some key arguments to support judicial discretion, and I would like to reiterate those issues here.

One, judicial discretion is accepted in other jurisdictions. Dr. Julian Roberts, a Canadian professor of criminal justice at the University of Oxford, outlined the different ways to draft a judicial discretion amendment. He highlighted that using “exceptional circumstances” is the highest bar for judges, and that is what is used in the U.K. Senator Dalphond connected this to Chief Justice McLachlin when she wrote for the majority in Lloyd. As Senator Dalphond stated, she opted for the use of “exceptional circumstances.”

I listened intently to his argument, and I would like to thank Senator Dalphond for emphasizing this important point: The version brought forward in committee did not use “exceptional circumstances” as the language, and it was defeated. So please note that the amendment that I will put forward has been updated to use “exceptional circumstances.”

Number two, mandatory minimum penalties do not deter or denounce criminality. They do, however, harm the most vulnerable, marginalized and criminalized people, notably Indigenous and Black people. The Justice Canada website states the following:

Some of the evidence found suggests that harsh penalties – like MMPs – are ineffective at deterring crime . . . .

Even when there is a drop in crime in jurisdictions with MMPs, careful analysis often shows that reduction in crime started before the implementation of MMPs and that most crime trends are indicative of large nation-wide shifts in offending . . . .

In the next section, it states:

[Mandatory minimum penalties] disproportionally affect disadvantaged persons and members of minority groups, such as Indigenous Canadians. Mandatory minimums do not allow judges to consider the role of social context in criminal sentencing and, as a result, vulnerable people may be adversely and disproportionately impacted . . . .

Three, provincial patchwork of mandatory minimum laws create constitutional challenges. As the Department of Justice website states:

As of December 3, 2021, the Department of Justice Canada was tracking 217 Charter challenges to [mandatory minimum penalties]. . . . [which] represents a little over a third (34%) of all Charter challenges to the Criminal Code . . . .

University of British Columbia law professor Debra Parkes told the committee:

We have had an unacceptable and unprincipled patchwork of laws in Canada where mandatory minimum sentences have been declared unconstitutional in some provinces and not in others, and that persists even with Bill C-5. Many of those are not changed by Bill C-5, so we will continue to have that patchwork.

Four, Indigenous and Black people are less likely to have the resources required to effectively appeal unfair sentencing by mandatory minimums. Janani Shanmuganathan explained this well at committee. She stated:

. . . what I would say in terms of the guilty plea is that the existence of mandatory minimum sentences may only encourage people to plead guilty when they don’t need to or shouldn’t because if they were to go to trial on a particular charge and lose, then they would face the certainty of getting at least that mandatory minimum sentence, if not something higher. If something is waved in front of them, saying, “If you plead guilty to this lower offence, you can get a sentence that is not going to be the mandatory minimum sentence,” it becomes all the more appealing for that client to plead guilty.

Five, the federal government has committed to reconciliation. It has committed to reconciliation. Calls for Justice 5.14 and 5.21 of the National Inquiry into Missing and Murdered Indigenous Women and Girls point to the impact of mandatory minimums and to the gross overrepresentation of Indigenous women and girls in the criminal justice system.

The Truth and Reconcilation Commission Calls to Action 30 and 32 address Indigenous overrepresentation in custody and ask for a departure from mandatory minimum sentences. They ask for that.

As one witness, Pam Hrick, executive director of Legal Education and Action Fund, stated:

It’s within this committee’s power to force the issue — to insist that Parliament not defer and delay the implementation of yet another of the Calls to Action. Implementing Call to Action 32 is low-hanging fruit, and I urge you to grasp it.

This point was reiterated by the Honourable Murray Sinclair when he said:

The government has provided no data to justify its piecemeal approach to the repeal of mandatory minimum sentences, nor have they explained why they have rejected TRC Call to Action 32 with respect to the mandatory minimum sentences Bill C-5 leaves in place. I urge the government to reconsider and fully implement Call to Action 32. We need to move away from a simplistic, punitive, one-size-fits-all response, and we need to trust and allow our judges to do the job they have been appointed to do.

This amendment reflects these arguments and the recommendations of the majority of witnesses at committee. It allows judges, in exceptional circumstances, to depart from the remaining mandatory minimums when a more fit, appropriate sentence should be applied.

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