Skip to content

Criminal Code—Controlled Drugs and Substances Act

Bill to Amend--Third Reading--Motion in Amendment Negatived

November 17, 2022

Hon. Mobina S. B. Jaffer [ + ]

Honourable senators, I rise today to speak to Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act. I would like, first of all, to thank Prime Minister Trudeau and Minister Lametti, who had the courage to introduce Bill C-5. As Minister Lametti remarked in committee, Bill C-5 is a solid first step. I also want to thank the sponsor of Bill C-5, Senator Gold. Senator Gold, I have seen how hard you worked on this bill; thank you very much. I want to thank the Legal and Constitutional Affairs Committee members, who have spent a considerable amount of time and effort studying this important bill. Senators, we had more than 45 witnesses, and many, many meetings. The clerk of the committee, Mark Palmer, and analysts Julian Walker and Michaela Keenan-Pelletier have also worked very hard. Thank you.

Honourable senators, my speech on Bill C-5 today will focus on the amendment introduced by Senator Clement. Many have spoken articulately about the amendment. I adopt their remarks, and will support the amendment and Bill C-5.

Historically, we know that judges apply sentencing principles from the Criminal Code by following precedents. In the mid-1990s, this changed. The liberal government introduced mandatory minimum sentences and snatched away the discretionary powers of the judges under the pretense that they were tough on crime. Throughout various governments, policy‑makers added more mandatory minimums such that today over 70 mandatory minimum sentences are enshrined into law. In fact, my office has found that in counting subsections, as courts tend to do, the number of mandatory minimums rose to 135.

In 2008, in R. v. Ferguson, the court maintained a strict threshold to strike down mandatory minimums and close the door to constitutional exemptions. From then on, the only way to repeal a mandatory minimum was to strike it down under section 52 of the Constitution Act, 1982, rather than using section 24(1) of the Canadian Charter. A crucial step, Ferguson, which was recently confirmed in Bissonnette, would lead the way to the dysfunctional patchwork of mandatory minimums that we witness today in Canada.

In 2015, in R. v. Nur, the Supreme Court struck down its second and third mandatory minimums in almost 30 years. This decision was critical in initiating the shift that’s been happening across the entire landscape of mandatory minimums in the country. In R. v. Nur, the court reminded us there are two facets to the application of section 12 of the Canadian Charter.

Essentially, the Supreme Court explained that a judge may strike down a mandatory minimum if it’s grossly disproportionate, either when applied to the case at hand or when applied in fictional and hypothetical cases. This was confirmed in R. v. Lloyd in 2016, but not without a warning. In R. v. Lloyd, the Supreme Court explained that if Parliament didn’t act, mandatory minimums would soon disappear. At the decision’s third paragraph, the court wrote:

Another option to preserve the constitutionality of offences that cast a wide net is to provide for residual judicial discretion to impose a fit and constitutional sentence in exceptional cases. This approach, widely adopted in other countries, provides a way of resolving the tension between Parliament’s right to choose the appropriate range of sentences for an offence, and the constitutional right to be free from cruel and unusual punishment.

Senators, that is what Senator Clement’s amendment is asking for — exceptional circumstances.

The court called upon us parliamentarians to act to provide judges with more judicial discretion to ensure the stability of our current criminal justice framework. Honourable senators, we didn’t listen; we did not act.

Since R. v. Lloyd, we know that the courts have been very active in striking down mandatory minimum penalties across all jurisdictions in Canada. We have heard of this national patchwork of mandatory minimum penalties. Beyond the four mandatory minimums struck down by the Supreme Court, different provinces and territories have different mandatory minimum penalties in force, some having struck down more mandatory minimums than others.

Honourable senators, mandatory minimum sentencing is in a mess, and we are expecting many more Charter challenges to come. For instance, as of December 2021, a third of approximately 650 constitutional challenges to the Criminal Code were aimed at mandatory minimum penalties. There’s no reason to think that courts will change course. The courts will continue to strike down mandatory minimums.

The Canadian courts keep urging us politicians to fix the patchwork we have created. Forty-three mandatory minimums, honourable senators — 43 — of the 72 mandatory minimums have been struck down in at least one province. Certainly, of the 20 mandatory minimums that are being repealed in Bill C-5, many of them have never been contested before the court, and the patchwork I mentioned will remain. The mess that we parliamentarians made will remain.

As it stands, Bill C-5 won’t fix these problems. Although Bill C-5 takes a step towards cleaning up the patchwork, Minister Lametti claimed many times that he would have liked to have done more. When I asked him why he could not do more, he explained — and I understand his position — that we can’t shoot for the moon. Bill C-5 is a solid first step, in his words.

Honourable senators, our courts will likely continue to strike down mandatory minimums to avoid applying disproportionate sentences, and the patchwork will only get more confusing. In its recent decision in R. v. Sharma, the Supreme Court reiterated its warning at paragraph 244. The majority wrote:

Parliament’s enactment of harsher sanctions in general is not the problem; the issue lies in its manner of doing so.

Honourable senators, our manner of doing so hasn’t been compliant with the Charter. Rather, we have been deaf to the courts and blind to the protections of the Canadian Constitution. The courts have been sending us a very strong signal to address the patchwork of mandatory minimum penalties across Canada, but we haven’t listened. Let us not allow their request to once again fall on deaf ears. Let’s listen.

Senator Clement’s amendment answers the plea of the judges to amend the Criminal Code while addressing the government’s concerns that the remaining mandatory minimums will be struck down. With this amendment, judges will be able to apply proportionate sentences that diverge from mandatory minimum penalties without having to declare mandatory minimum penalties as unconstitutional. This way, offenders also won’t have to pursue costly constitutional challenges to assert their rights.

With this amendment of Senator Clement, judges will be able to give full consideration to the sentencing principles, to the Gladue principles — which consider the special circumstances of Indigenous peoples — and the relevant circumstances when appropriate.

Honourable senators, we shouldn’t be forcing judges to strike down mandatory minimum penalties when they violate section 12 of the Charter. It is up to the judges to assess the circumstances of the accused and determine a suitable sentence for their rehabilitation. This has been our criminal system for hundreds of years. All the while, offenders who commit serious crimes will be given serious sentences.

Honourable senators, when I first came to the Senate, I was taught one of the tasks of the Senate is to protect the rights of the vulnerable people and minorities. In every bill that was presented by the House of Commons to the Senate, we had to study the bill and see if minority rights and rights of vulnerable people are protected. This bill is essential to protecting fundamental rights. It is an opportunity to stand true to our role.

In 2015 many of us moved away from our party affiliations and became senators who are independent. We are now in a position to think independently and to be bold. Let us do just that.

When you vote for the amendment, I respectfully ask that you consider your role as senators. As Mahatma Gandhi once claimed, the true measure of any society can be found in how it treats its most vulnerable members.

Thank you.

Thank you, Your Honour, and thank you, Senator Jaffer. Thank you to all who have contributed to this, and a special thank you to Senator Clement for moving an important and necessary amendment.

Honourable senators, as we know, the government’s goals for Bill C-5 are to deal with issues of systemic racism and discrimination in our criminal legal system and to reduce incarceration rates for Indigenous and Black people in Canada. I support these laudable goals. But without this amendment, Bill C-5, although promisingly aspirational, does not go far enough and does not allow for the government’s own objectives to be met.

When introducing this bill, Minister Lametti was clear that:

. . . too many lower-risk and first-time offenders, including a disproportionate number of Indigenous peoples and Black Canadians, are being sent to prison because of laws that do not deter crime or help keep our communities safe. Along with other efforts across government, these reforms represent an important step forward in the fight to root out systemic racism and ensure a more effective justice system for all.

Unfortunately, this bill, without this amendment, will not actually result in the promised reforms. It will only scratch the surface. We cannot promote a fairer, more just legal system while mandatory minimum penalties, or MMPs, remain. At the very least, we must restore judicial discretion and allow judges to consider circumstances that warrant departure from mandatory minimum penalty frameworks.

The amendment Senator Clement introduced would allow judges to do their job and bring us closer to rooting out systemic racism.

As you have already heard, the majority of witnesses, especially those representing communities most impacted by systemic racism in the legal system, advocated for this amendment to fix Bill C-5.

Since we studied the bill in committee, the Supreme Court of Canada, as Senator Jaffer just raised, sent a clear message to Parliament via its decision in the R. v. Sharma case.

As Jonathan Rudin of Aboriginal Legal Services explained:

The decision makes it all the more important that C-5 gets . . . amended to address as many of the flaws in it as possible. The Court has made it clear that criminal law policy rests almost solely now with Parliament and so it’s up to Parliament to find the courage to do what the TRC asked it to do in respect of criminal justice reform.

Call to Action number 32 of the Truth and Reconciliation Commission, or TRC, urged the repeal of all mandatory minimum penalties, or at least to allow judges to not impose any mandatory minimum penalty not repealed.

As the former chief commissioners of the TRC and the National Inquiry into Missing and Murdered Indigenous Women and Girls also pointed out, without this amendment, Bill C-5 prevents judges from doing their jobs by prohibiting them from applying section 718.2(e) of the Criminal Code, otherwise known as Gladue sentencing principles, when sentencing Indigenous and other racialized people.

Honourable senators, it is imperative that we support Senator Clement’s amendment; it offers an opportunity to counteract the crisis of overrepresentation and over-incarceration of Black and Indigenous people.

The next chance to amend mandatory minimums may not happen for many years and, during that time, too many more of the most marginalized and discriminated against will continue to face disproportionate and unfair sentences.

We must heed the advice of our former colleague the Honourable Murray Sinclair, as well as those of Justice Marion Buller, National Chief Archibald and many other Indigenous and Black experts who have urged us to be courageous and address the fundamental flaws in Bill C-5.

This amendment meets the government’s commitment to the TRC Calls to Action and criminal justice reform. The time to fix this bill with this amendment is now.

Jonathan Rudin clearly and eloquently spelled out why waiting for some future action should not even be considered an option:

“Wait.” What are they supposed to wait for? . . . We already have mass incarceration. We can’t wait. . . . We have to stop waiting and we have to stop pretending that waiting doesn’t carry its toll, because there is a toll. The reason that we, as a broad society, can say we can wait is because we’re not bearing that toll. Indigenous communities bear that toll. Indigenous children bear that toll. It’s time to stop. It’s time to just do what we said we were going to do when the TRC made their recommendations. This government and many people agreed to adopt the recommendations of the TRC. Let’s finally do it. For goodness’ sake, there is no reason to wait any longer.

Contrary to the rather isolated opinion of the outgoing criminal law section chair of the Canadian Bar Association, based on his years of experience on the ground, Mr. Rudin agrees with Senator Sinclair and so many others about the many advantages of judicial discretion, telling us,”First, it is quicker than having to challenge the constitutionality of a mandatory minimum” for each person on a case-by-case individual basis while leaving the legislation in place for everyone else. And second:

. . . decisions of trial judges are . . . subject to appellate review. Within a few years, we would have a robust set of jurisprudence on what sort of cases merit the use of a safety valve. Introducing an amendment to permit judges to rely on a safety valve for other mandatory minimums —

— not otherwise repealed by Bill C-5 —

— is a necessary and positive step forward.

Thank you to Senators Clement, Jaffer and Simons for such cogent and clear explanations as to how and why mandatory minimum penalties result in discriminatory sentences that disproportionately affect Indigenous and other racialized groups.

For those of you still wondering about this, though, allow me to share the testimony Alain Bartleman from the Indigenous Bar Association shared with us when he advised us that:

Mandatory minimum sentences contribute to this crisis by placing individuals, especially vulnerable individuals, into positions where they either feel obliged to plead down to lesser offences in order to avoid the spectre of mandatory minimums or, alternatively, to stare down the prospect of running a gauntlet of section 12-related challenges.

The Native Women’s Association of Canada spoke about the impact this bill will have on the lives of Indigenous women and their families:

. . . when a sentencing judge gets to look at an Indigenous woman before them as a whole person and consider all of the relevant factors that have shaped this offender’s story right up until the moment they stand before them, that’s the kind of crafting they are legislatively enabled to do when mandatory minimums are repealed. They can take a wholesome and holistic approach to crafting a sentence that meaningfully considers Parliament’s goals under 718.2(e) to reduce overincarceration by considering those factors and seeking alternatives to incarceration.

They went on to say the immediate impact of this amendment “will be fewer Indigenous women incarcerated” if it immediately empowers sentencing judges to avoid incarceration.

NWAC supports providing more mechanisms for judges to be able to consider the holistic background of Indigenous women. Furthermore, NWAC encouraged us to pass the proposed amendment — to advance reconciliation — because it:

. . . allows judges to be judges, to do the job that we trust them to do and advance reconciliation in the courtroom after Parliament and the Senate have advanced reconciliation through amendment here.

In her submission to the Legal and Constitutional Affairs Committee, the Honourable Judge Marion Buller, the first First Nations woman judge in British Columbia and Chief Commissioner of the National Inquiry into Missing and Murdered Indigenous Women and Girls, discussed the effect of Bill C-5 on judges as preventing them from carrying out the sentencing provisions prescribed by the Criminal Code and effectively forcing them to obviate — to not apply — those sentencing provisions according to their legal obligations.

In addition, she described the impact on Indigenous families and:

The incarceration of women resulting in the separation of the mother and child is a violation of the child’s rights under the Convention on the Rights of the Child . . . .

Indigenous women, children, families and communities can no longer wait — and neither can any other marginalized group — nor should they be expected to sacrifice so much because we lack the courage to do what is necessary, and what is right.

Finally, when the Honourable Murray Sinclair spoke in support of this amendment at committee, he further helped us understand how mandatory minimum penalties have particularly negative impacts on Indigenous communities, and why this amendment is necessary to answer the Truth and Reconciliation Commission, or TRC, Call to Action 32. He reminded us the TRC:

. . . called upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences. . . . This recommendation has been widely supported by Indigenous and Black organizations, women’s groups and other expert bodies. Mandatory minimum sentences and the restrictions on conditional sentences are used more frequently and egregiously against Indigenous and racialized peoples, and have a much harsher impact on these groups. . . .

He added:

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.

Also, he specifically explained why, at the minimum, this amendment is necessary by saying:

I think short of repealing every one of the mandatory minimum provisions that are in the Criminal Code right now, another suitable amendment would be to give sentencing judges the jurisdiction and authority to ignore mandatory minimum sentences if they provide written reasons . . . . I would prefer that approach rather than looking for an amendment or looking to reject the bill because I think the bill is amendable and salvageable, based upon that kind of amendment being included.

Colleagues, this is not the perspective of a naïve, or unsavvy, individual. This is sage advice from the author of the very report that the government claims it acknowledges by offering up Bill C-5 as its response. Who am I — indeed, who are we — to challenge Senator Sinclair’s expertise and experience by essentially responding, “You may be right, but we lack the courage to go there”?

This is the root of our insistence: We reject the foil of fear to take bold action at this time. Let’s not make the same mistakes of our forebears when they ignored the realities of residential schools. Let’s, at least, take this step to try to address the mass incarceration legacy of residential schools.

Dear colleagues, the choice today is simple. Do we listen to the majority of witnesses and experts, or do we give in to fear? Do we demonstrate the courage requested of us to take responsibility and try to fix this bill, or will we leave the burden on those who will bear the toll of consequences we could avoid? Today, colleagues, that is our choice.

I hope you will join us as we individually, and collectively, try to remedy this wrong, and make this bill fit for purpose by supporting this small step in the right direction. I hope you will join us and vote in favour of this vital amendment.

Meegwetch. Thank you.

Hon. Dennis Glen Patterson [ + ]

Thank you, Senator Pate and Senator Jaffer, for your compelling speeches.

There is a concern that this amendment will mark the end of mandatory minimums, and, frankly, I’m not sure I’m willing to go that far, although I suspect that may be an outcome you would welcome, Senator Pate.

The amendment has two qualifications: There must be exceptional circumstances, and reasons must be given. My questions are as follows: Is this a vehicle to eliminate mandatory minimums? Or, for anyone who is concerned that there is still some place for appropriate mandatory minimums, will they be comforted that the two conditions will retain some balance?

Thank you for those very important questions. This will not repeal any mandatory minimum penalties that are not already repealed by the bill. They will stay intact. It merely allows for a judge, after weighing all of the circumstances, to apply the sentencing principles and determine if, in exceptional circumstances, it is appropriate to impose something other than the mandatory minimum penalty. So, no, it does not remove any that are not already repealed by the bill. It leaves them in place. As Minister Lametti said, and as Senator Gold said — my view is similar — you will likely still see judges imposing penalties more severe when the circumstances call for it. Thank you.

Senator Patterson [ + ]

Thank you.

Hon. Pierre J. Dalphond [ + ]

Honourable senators, I’d like to begin by thanking Senator Clement for taking over from Senator Jaffer and Senator Pate, who have been advocating for the elimination of mandatory minimum sentences for years now. They are not the only ones campaigning for this.

For example, in 2015, the Truth and Reconciliation Commission, which was chaired by our former colleague, the Honourable Murray Sinclair, recommended an option similar to what Senator Clement proposed because mandatory minimum sentences resulted in the overrepresentation of Indigenous individuals in provincial and federal prisons.

The National Inquiry into Missing and Murdered Indigenous Women and Girls, which our colleague, Senator Audette, was part of, called for it too, asking federal, provincial and territorial governments to, and I quote:

 . . . thoroughly evaluate the impact of mandatory minimum sentences as it relates to the sentencing and over‑incarceration of Indigenous women, girls, and . . . people and to take appropriate action to address their over‑incarceration.

The Parliamentary Black Caucus, which senators Bernard, Clement, Gerba, Mégie and Moodie belong to, also recommends the elimination of mandatory minimum sentences because it finds that they result in the overrepresentation of racialized groups in prisons and penitentiaries. The Canadian Association of Black Lawyers concurs.

These are important messages from credible people. It would be a mistake for any government to ignore them.

The government chose to respond not by repealing all mandatory minimum sentences, but by proposing three targeted measures.

I would point out, incidentally, that nowhere in the Prime Minister’s mandate letter to the Minister of Justice does it say that he must work to repeal all minimum sentences, but rather that he must reduce reliance on mandatory minimum penalties and develop an Indigenous justice strategy as well as a Black Canadians justice strategy.

Here are the targeted measures the government included in Bill C-5. First, the abolition of all mandatory minimum sentences under the Controlled Drugs and Substances Act, which were one year, eighteen months, two years or three years, depending on the nature of the offence, many of which have been declared unconstitutional, either by the Supreme Court of Canada in Nur or by decisions of the Alberta, British Columbia and Quebec courts of appeal.

However, the jurisprudence is rather confusing when it comes to superior courts and provincial courts, which do not have the authority to declare provisions unconstitutional.

Second, the bill proposes to do away with about 15 minimum sentences set out in the Criminal Code for offences that, according to the government’s analyses, are associated with an overrepresentation of Indigenous and Black people in prisons and penitentiaries.

Third, the bill proposes to repeal most of the exclusions in the regime for accessing sentences served in the community, also known as conditional sentences.

Clearly, all of these measures will expand the options available to judges when it comes to sentencing, including the possibility of imposing shorter prison sentences and more conditional sentences. According to the Department of Justice’s analyses, that should significantly reduce the rate of incarceration of Indigenous and Black people who are found guilty of an offence. However, only time will tell whether that is indeed the case.

Instead of proposing to eliminate all mandatory minimum penalties, also called MMPs, the amendment now before us would maintain the majority of MMPs and add a provision authorizing judges not to apply them on a case-by-case basis. Such a provision is called a “safety valve” by some, and an “escape clause” by others.

At the Standing Senate Committee on Legal and Constitutional Affairs, Senator Pate proposed an escape clause that would have allowed judges not to apply any remaining MMPs, including in cases of first- and second-degree murder, if the judge were satisfied that doing so would be in the interests of justice. A debate followed, and this amendment was defeated by a vote of 9 to 4.

The escape clause now before us is different. It will be applicable only in exceptional circumstances — a higher standard to meet. As mentioned by Senator Clement, this is the threshold applied by judges in England and Wales to justify the imposition of an imprisonment term lesser than the applicable MMP.

At committee, a leading expert in sentencing — a Canadian, incidentally — Professor Julian Roberts of the University of Oxford described this threshold as the highest one. With that context in mind, let me add that the Supreme Court of Canada considers that it is not only legal, but legitimate for Parliament, in considering sentencing policy options, to enact MMPs in order to send a powerful message of deterrence and denunciation. Previous governments have all enacted some MMPs going back, incidentally, to Prime Minister Pierre Trudeau. However, the court said that when Parliament decides to enact an MMP, it should act carefully to avoid casting too wide of a net that could result in a breach of section 12 of the Canadian Charter of Rights and Freedoms that protects all Canadians against cruel punishment.

In the recent unanimous decision of the Supreme Court in the Bissonnette case, which was released in May 2022, the Supreme Court stated that an MMP is cruel only if it results, in some cases, in a punishment that is grossly disproportionate in effect to what would have been appropriate otherwise. That said, for the Supreme Court, an MMP of 25 years further to a conviction for a first-degree murder is not a cruel punishment.

Incidentally, in Lloyd, another judgment of the Supreme Court released in 2016, Chief Justice Beverley McLachlin said that to avoid constitutional challenges to MMPs that cast a wide net, Parliament should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences. She added that another option would be for Parliament to establish a safety valve that would allow judges to exempt outliers for whom the MMP will constitute a cruel punishment. She went on to say that this residual discretion is usually confined in other countries to exceptional cases, and may require the judge to give reasons justifying departing from MMPs prescribed by the law. This is what Senator Clement is now proposing.

With all this in mind, let me explain why I cannot support this new attempt to introduce an escape clause into Bill C-5.

First, the proposed escape clause is drafted to apply to all remaining MMPs, including first- and second-degree murders, high treason, crimes against humanity, impaired driving causing death and child sexual offences. To me, MMPs are fully justified in such cases to send a powerful message of deterrence and denunciation.

Incidentally, in the U.K., the escape clause does not apply to all kinds of murders.

Here in Canada, in 2013, the Criminal Section of the Uniform Law Conference of Canada, a working group that includes prosecutors, defence lawyers, academics and others, did not recommend removing MMPs for murders, nor did the Canadian Bar Association, which appeared before our Senate committee. By adopting the proposed amendment — assuming it is within the scope of the bill, which I also doubt for the reasons mentioned by Senator Cotter on Tuesday — we will go further than any country in the world. I am not prepared to do that, and I do not think such a change would reflect Canadian society’s values.

Second, the opportunity of adding such an escape clause at third reading and thus returning Bill C-5 to the House of Commons instead of sending it to Rideau Hall for Royal Assent relies on the assumption that it will significantly reduce the frequency of the imposition of MMPs by Canadian judges. However, the evidence before the Senate committee is to the contrary. In a written answer to my questions at the committee, Professor Roberts wrote that such an escape clause in England, because of its very high threshold, has been narrowly interpreted by the courts in England and Wales and used by sentencing judges in only a very small number of cases. Therefore, this is not a change that would bring a lot of significant changes.

Third, many witnesses have argued against the adoption of an escape provision — whatever its content — because they fear that the systemic discrimination that exists toward racialized, Indigenous and vulnerable people will not result in fewer MMPs being imposed on these groups by the justice system. In fact, they fear that such an escape clause will tend to benefit White offenders and those with privileged access to legal representation, resulting in new inequalities.

This concern makes sense if you assume that the overrepresentation of Indigenous and racialized people in our jails is due to overpolicing, overcharging, poor access to adequate defence counsels and bias in the court system.

Fourth, some witnesses pointed out that, contrary to the U.K. where there is no constitutional authority for judges to declare a cruel sentence to be unconstitutional, in Canada, we have section 12 of the Charter. In cases where an MMP may result in a breach of section 12 or section 15 — the equality right — Canadian judges can declare it unconstitutional and thus invalid. Such invalidity will apply to all persons exposed to that MMP, and will not be on a case-by-case basis.

As indicated previously, to avoid constitutional challenges, Parliament has two options: to draft individual offences and penalties properly or to add an escape clause applicable in exceptional circumstances. In other words, the adoption of the proposed escape clause would provide a shield against attack pursuant to section 12 of the Charter of Rights and may encourage future parliaments to adopt more MMPs, with the possible safety valve, contrary to the very goal that is pursued by the proponents of the amendment.

Finally, I want to mention that the Minister of Justice and the NDP justice critic, MP Randall Garrison, are publicly urging the Senate to adopt Bill C-5 as soon as possible, since it will immediately broaden the ability of judges to render conditional sentences when more appropriate than imprisonment in provincial jail. Most witnesses before our committee support the broadening of that judicial discretion.

Further, as to the recent Sharma decision, the Criminal Lawyers’ Association, the Canadian Bar Association and the Canadian Association of Black Lawyers, many scholars and other stakeholders have written to us, and on social media, urging us to adopt Bill C-5 without any further delay. I don’t see, in the reasons being exposed to justify the amendment, a justification to remain deaf to these calls.

For all these reasons, colleagues, I invite you to vote against this amendment. Thank you, meegwetch.

The Hon. the Speaker pro tempore [ + ]

Senator Pate wishes to ask a question. We only have one minute left. Senator Dalphond, will you take a quick question and answer?

Senator Dalphond [ + ]


I’ll make a number of statements, and you can indicate whether you agree.

In the case of Luxton, the Supreme Court of Canada ruled the life sentence was constitutional because there was a safety valve of a 15-year review available. In the Bissonnette case, the Supreme Court of Canada said:

In any event . . . the existence of a discretion cannot save a provision that authorizes the imposition of punishment that is cruel and unusual by nature.

It also talked about the need to inject humanity into sentencing and left the suggestion that even a life sentence may be problematic. We know that the overwhelming majority of Indigenous women, who now form one out of two federally sentenced women, are in for violent offences, many of them for murder, as a result of responding to violence first perpetrated against them.

Would you agree those are the facts as well?

The Hon. the Speaker pro tempore [ + ]

Senator Dalphond, you have only 15 seconds left.

Senator Dalphond [ + ]

It is impossible for me to comment on the Supreme Court jurisprudence and correct any false perceptions of the rulings in 10 seconds.

The Hon. the Speaker pro tempore [ + ]

Are you asking for more time?

Senator Dalphond [ + ]

I would ask if the house is ready to allow me five more minutes.

The Hon. the Speaker pro tempore [ + ]

Honourable senators, do we have agreement on five minutes?

The Hon. the Speaker pro tempore [ + ]

I heard a no.

Hon. Donald Neil Plett (Leader of the Opposition) [ + ]

Honourable senators, I also rise today to speak to Senator Clement’s amendment. I find myself in the strange position where I might vote with the government leader on an amendment, but tonight I will ask for forgiveness for that.

Colleagues, the original version of this amendment was first presented at committee by Senator Pate, and it did not include the expression “exceptional circumstances.” Senator Pate’s amendment would have, in effect, nullified all mandatory minimum penalties present in the Criminal Code.

This amendment does indeed include the phrase “exceptional circumstances,” as is the case in section 311 of the Sentencing Act in Britain. However, I do worry about the application of this clause and fear it risks having the same effect as the original version in practice.

If we are going to use Britain as a model for this clause, we need to consider the context of their legal system. Senator Dalphond already alluded to it, at least in part. England and Wales also have “whole life orders” in the most serious cases of murder. This means, colleagues, that the British Parliament allows for circumstances where both judges or even a cabinet minister — a politician — can direct that any individual never be eligible for release from prison.

That is quite the responsibility for a politician.

This is quite a severe system and a stark deviation from what is considered acceptable practice or even constitutional in Canada. The key point is this: If we are going to reference practices in other democratic legal systems, we need to reference the totality of those practices.

Canada’s mandatory minimum penalties were individually studied and considered. The minimum sentence was always put in place with the notion that it would be an appropriate sentence for the least culpable offender or the most exceptional of circumstances.

As the Macdonald-Laurier Institute published in their evaluation of mandatory minimum penalties:

Mandatory minimums reflect the lowest possible sentence for the least culpable offender. The policy underlying any given sentencing floor is a function of Parliament’s answer to an important question: “What sentence would be appropriate for the least morally culpable person whose behaviour still constitutes the elements of the offence?” Answering this question requires Parliament to perform a nuanced, multi-faceted policy analysis of the moral status of the behaviour in question.

Parliament has done precisely that, yet this proposal undoes all of it without the same nuanced, multi-faceted analysis. My concern is that this approach risks having the effect of abolishing mandatory minimums entirely, which is the declared objective of proponents of this amendment.

The inherent supposition is that judicial discretion has been unduly taken away from the courts and that the minimum parameters that have been set by Parliament for certain criminal offences are inappropriate.

Some have cited the number of constitutional challenges to mandatory minimum sentences as if that, in and of itself, constitutes an indictment of these sentences. I think it is useful for us to examine that assumption.

Colleagues, the simple presence of a legal challenge does not mean that a law is illegitimate. Legal challenges are to be anticipated whenever lawyers think that such a challenge might work for their client. However, the mere existence of a challenge does not mean that the courts will support the argument.

Obviously, in the case of mandatory minimum sentences, if lawyers believe that many judges will be sympathetic to such arguments, then such sentences will be challenged. However, it is clear that, while the Supreme Court of Canada has indeed struck down particular provisions relating to mandatory minimum sentences, it has not challenged Parliament’s right to impose such penalties. Senator Dalphond already mentioned that in his speech.

In R. v. Lloyd, the Supreme Court stated that:

. . . Parliament is not obliged to create exemptions to mandatory minimums as a matter of constitutional law. Parliament may legislate to limit judges’ sentencing discretion. Limiting judicial discretion is one of the key purposes of mandatory minimum sentences, and this purpose may be inconsistent with providing judges a safety valve to avoid the application of the mandatory minimum in some cases. Whether Parliament should enact judicial safety valves to mandatory minimum sentences and if so, what form they should take, are questions of policy that are within the exclusive domain of Parliament. The only limits on Parliament’s discretion are provided by the Constitution and in particular, the Charter right not to be subjected to cruel and unusual punishment. . . .

The court noted that Parliament could respond to court rulings related to mandatory minimums by potentially narrowing their reach so that they only catch offenders who merit such mandatory minimum sentences. This would be entirely appropriate in that the drafting of legislation to respond to judicial rulings would reflect envisaged dialogue between Parliament and the judiciary on measures that are necessary for the protection of society and obligations that may exist in relation to the Charter.

In the Macdonald-Laurier Institute’s publication, the authors point out:

Opponents of mandatory minimum sentences tend to focus on the restrictions that these laws impose on a sentencing judge’s ability to tailor the sentence to an offender’s unique circumstances. . . .

Canadians must know what the law is in advance so that they can govern their conduct accordingly.

However, scrutinized in light of the rule of law, it is clear that, at least in the abstract, mandatory minimum sentences should be capable of functioning as effective tools to ensure the even, equal, and proportionate application of sentences to offenders guilty of the same offence. Rather than eliminating a judge’s ability to assess a proportionate sentence, mandatory minimums set a stable sentencing range for an offence, permitting citizens to understand in advance the severity of the consequences that attend the commission of that offence, regardless of the individual offender’s particular degree of responsibility.

Many have cited the issue of Black and Indigenous overrepresentation as a rationale for abolishing these penalties. We know, however, that overrepresentation is a much more complex societal issue that extends well beyond the matter of sentencing parameters.

Chief Inspector David Bertrand, Inspector Michael Rowe and Rachel Huggins, who testified at the Legal Committee, addressed the issue of overrepresentation in the correctional system. They cited homelessness, substance abuse, addiction and mental health issues among other factors that ultimately lead to a higher rate of contact with the police and the criminal justice system.

Inspector Rowe stated unequivocally that prevention needs to be top of mind, and that:

The mandatory minimum penalties assigned to these sections of the Criminal Code create a meaningful legal condemnation of the decision to unlawfully pick up a firearm and reflect the important distinction between offences involving firearms and those that do not.

While some witnesses who testified on Bill C-5 at committee were certainly of the view that the government should abolish all mandatory minimum penalties, it must be said that the committee only studied and considered the value of specific offences referenced in this bill. For example, Mothers Against Drunk Driving and law enforcement officials were called upon to speak about very specific concerns associated with impaired driving and firearms offences, respectively.

Likewise, we would need to hear evidence for and against the merits of every other mandatory minimum penalty in the Criminal Code before considering this sweeping proposal.

Colleagues, let’s remember what mandatory minimums are at stake with this amendment: first-degree murder; high treason; the crime of living off the avails of child prostitution, which has carried a mere five-year minimum sentence; the crime of hostage taking with a firearm, which has carried a four-year mandatory minimum sentence; and the crime of manslaughter when committed with a firearm, which has also carried a four-year minimum sentence. These are serious crimes, colleagues.

We must also remind ourselves that the minimum sentences in Canada do not mean that the entire period of that sentence will be spent behind bars. Our law provides for a graduated release based on the offender’s performance in programs in the institution and their risk to society, among other considerations.

For instance, every offender serving a fixed sentence in Canada will be released on mandatory supervision at the two-thirds mark of their sentence. Offenders serving a fixed sentence are also usually eligible for parole at the one-third mark of their sentence and for day parole six months before that. This means that even those rare offenders who might receive a five-year minimum sentence for living off the avails of child prostitution, for example, will be released on statutory release in 40 months, will be eligible for parole in 20 months and will be eligible for day parole in only 14 months.

Many Canadians would regard this as actually supremely lenient. Many, in fact, would see it as excessively lenient. I would submit that the appropriateness of automatic release at the two-thirds mark of a sentence, regardless of the offender’s performance in an institution, is more in need of a review by Parliament than are our relatively modest minimum sentences.

Proponents of this approach have cited that 90% of Canadians want the government to consider giving judges the flexibility to not impose mandatory minimum sentences. I believe that if we’re honest, the reality is much more nuanced in that. In polling, much depends on how a question is asked and what specific information is presented when the question is asked. I dare say that few Canadians would object to stringent mandatory minimum penalties for offences such as sexual assault committed against young children, for example.

In 2012, the Toronto Star reported a survey by the Angus Reid Institute that found that 63% of Canadians believed that the death penalty was an appropriate sentence for murder. That was in 2012, colleagues. In 2016, a report done by Kari Glynes Elliott and Kyle Coady of the Research and Statistics Division of the Department of Justice found that:

. . . if certain types of offences are considered, there is general public support in Canada, Britain, and the USA for harsh penalties/mandatory minimums for homicide . . . .

The same publication also found historic support in Canada for the notion that sentencing is too lenient.

So I think, colleagues, if we were honest, we would admit that the evidence is mixed, but the notion that the public does not support harsh penalties for the most serious of crimes is generally misleading.

While this amendment is an improvement from the version presented at committee, I fear that in practice, it will risk having the exact same effect.

Again, a minimum sentence is just that — a minimum — meaning that it was evaluated and considered with the least culpable offender in mind. While it has been said that the escape clause in Britain is used sparingly, we are operating under an entirely different legal system and have no guarantee that it would be used the same way or in the same types of circumstances.

Who determines what is exceptional? It is entirely subjective. Therefore, in effect, it abolishes the sentencing floor for all sentencing ranges carefully established by Parliament. For that reason, this exact amendment was rejected by the House of Commons Justice Committee, and as Senator Cotter stated, would almost certainly face the same fate if we passed this amendment.

If senators want to bring forward new legislation to study the value of minimum penalties on specific offences, I think it would be a reasonable approach. We could call in witnesses to discuss the benefits and the drawbacks of those specific penalties. However, we have not done that, colleagues. We heard from witnesses who discussed the offences affected by Bill C-5. For that reason, I do not believe we are at a place where we can have an informed debate on this proposal, let alone support it.

Colleagues, I will be voting against this amendment and strongly encourage all of you to do the same. Thank you.

Would you take a question, Senator Plett?

Senator Plett [ + ]

Do I have time?

The Hon. the Speaker pro tempore [ + ]

The million-dollar question.

I listened carefully to your comments, and I have a couple comments and then a question.

You actually quoted from the minority decision in Lloyd when you talked about them suggesting that we’re not obliged to create exemptions. In fact, the majority did support the creation of exemptions.

You also mentioned mandatory supervision which hasn’t existed for more than a decade, and has been replaced by a statutory provision that allows for application but doesn’t guarantee any release.

I think you’re probably familiar with the many reports of the Office of the Correctional Investigator showing that, in fact, most people — particularly Indigenous and Black prisoners — don’t get out at their dates. In fact, those serving the longest sentences, particularly life sentences, sometimes serve 10 or 20 times what their eligibility periods are.

But my question is this: In the situation of an abused woman — which is the majority of the Indigenous women who are serving life sentences and who are essentially deputized to protect themselves because of the abuse they experienced — because of the many issues you and Senator Dalphond ably raised about the discrimination throughout the system, when they are in the midst of being attacked, they may need to grab a weapon. That will ensure they receive a mandatory minimum penalty, and in most cases, it will ensure the charge laid against them will be a charge of first-degree murder.

The Hon. the Speaker pro tempore [ + ]

Do you have a question?

I do. When the Crown discovers there’s a history of abuse, they most often will then suggest a guilty plea. In those situations where it’s a woman responding to violence, would you have the same view that she should not have the benefit of that exceptional circumstance being considered by a judge?

Senator Plett [ + ]

Senator Pate, the only way I can properly answer that question is whether the person is Indigenous, Black, White or a different ethnicity, they have the same laws. If they conduct themselves properly in prison, they will get out on their statutory release.

You cannot tell me, Senator Pate, that an Indigenous, incarcerated individual who follows all the rules will be treated differently in staying in prison than somebody else. If you’re suggesting, Senator Pate, that we have a law for Indigenous people and for Black people, and a different law for others, then that’s what we should be working with. But you cannot say that because this person may fall through the cracks, let’s let everybody off in an easy manner. That is not the way to run our justice system.

I’m sorry if that’s not answering your question directly. I believe strongly in mandatory minimums. I believe strongly in mandatory minimums for all Canadians, not just certain groups.

You’re right, you didn’t answer the question. It’s not me saying this, it’s the Office of the Correctional Investigator documenting that 64% of those in maximum security are Indigenous women in the women’s prison. It’s higher also for men and Black folks as well. They have less access to programs and services.

I ask you again, in exceptional circumstances, would you not support that individuals who, but for the day, would have been the victim had they engaged in hand-to-hand combat without a weapon, and they would often end up dead? Do you not believe they deserve the benefit of the exceptional circumstance? And I agree, regardless of the colour, but it’s a particular issue where we see the systemic discrimination impacting Indigenous women and Black women — those who have the least advantage and supports in society.

Senator Plett [ + ]

I guess my answer to your question is I have sympathy for anybody who is in the situation that you’re describing. But do I believe that they should be treated differently in law? No, I’m sorry, I do not.

Hon. Denise Batters [ + ]

Senator Plett, thank you for outlining in your speech a number of different examples of mandatory minimum penalties for certain crimes and the relatively low numbers that those are. Some of the examples you gave are very serious crimes where the mandatory minimum sentences were only about four years.

Another one that I wanted to draw the attention of this chamber to, and ask if you agree with is this: What has scarcely been mentioned in this entire debate on this amendment is the fact that the mandatory minimum in Canada for first-degree murder is only 25 years — that there’s a chance for parole after that point — and for second-degree murder, only 10 years.

Given that the mandatory minimums are really quite low when you look at the types of offences that we would look at in the U.S. and other places that many Canadians would perhaps be more familiar with, wouldn’t you agree that those mandatory minimums, being at those low levels, are something that really needs to be considered when we’re talking about upholding those?

Senator Plett [ + ]

Yes, I fully agree with that. Thank you.

The Hon. the Speaker pro tempore [ + ]

Are senators ready for the question?

The Hon. the Speaker pro tempore [ + ]

All those in favour of the motion will please say, “yea.”

The Hon. the Speaker pro tempore [ + ]

All those opposed to the motion will please say, “nay.”

The Hon. the Speaker pro tempore [ + ]

I believe the nays have it.

The Hon. the Speaker pro tempore [ + ]

I see two senators rising. Do we have an agreement on a 15-minute bell? Call in the senators for 5:12 p.m.

Back to top