Honourable senators, I rise today to speak to Bill S-208, An Act to amend the Criminal Code (independence of the judiciary).

The independence of the judiciary is one of the foundational principles of the Canadian justice system. In criminal cases, in particular, we rely on judges to hear all the evidence, to weigh all the merits of a case and then pass a fit sentence, one that takes into account the complicated individual circumstances of each defendant and each crime.

I sat through many trials in my 30 years as a journalist, and if I learned anything, it was that no two cases were alike. The charges might be the same, but one murder case was not like another; one child pornography case was not like another. Each trial told its own unique story. Each cast of characters was different from the next. Yet over my 30 years as a reporter and columnist, this country moved more and more toward a model of mandatory minimum sentences in criminal trials, and both Liberal and Conservative governments have added more statutory mandatory minimum sentences to the Criminal Code.

I understand the political reasons for these measures. Many Canadians are uncomfortable with the idea of giving judges that discretion. They do not like that judges can determine the length of an offender’s sentence. It is easier to believe that a murderer is a murderer, full stop, and that universal sentences allow courts to make better use of their time. These types of sentences are also seen as a better deterrent.

I know that some people are worried that judges, or at least some of them, are too lax or too soft. This is why they believe that mandatory minimum sentences protect the legal system and the public from judges that may go too easy on a dangerous criminal.

But mandatory minimums are a blunt and crude tool to deal with such problems. They remind me of the story from Greek myth about Procrustes, the son of Poseidon. Procrustes used to waylay travellers and invite them to spend the night at his place. There he would offer them a bed. But Procrustes’s little Airbnb wasn’t a terribly comfortable one. He insisted that all his guests had to fit his bed exactly. If they were too short? Well, then, Procrustes would stretch them to fit. And if they were too tall? No worries. Procrustes would just chop their legs off until they were the right length.

It’s not a jolly story, but I think it’s one we should keep in mind as we consider the dangers of applying a Procrustean bed model to the criminal justice system.

Mandatory minimum sentences create two real — and opposite — problems.

In the first case, they may require a judge to impose a harsher sentence than is warranted by all the individual, complicated facts surrounding a particular crime. On the other hand, mandatory minimums can actually have a reverse effect; they can contort the justice system. In some cases, juries simply won’t convict someone of the appropriate charge because they don’t believe the matching mandatory minimum sentence is fair or appropriate. In other cases, Crown prosecutors end up striking plea agreements that are legally illogical because they know in their heart of hearts that the mandatory minimum sentence isn’t just.

Since I’m a storyteller by trade and temperament, let me tell you two stories that illustrate my two points.

Let me tell you first about Jayme Pasieka. On February 28, 2014, Jayme Pasieka arrived at the Loblaw warehouse in Edmonton, where he worked, armed with knives he had gone out and purchased at the West Edmonton Mall. When he got to work, he went on what I can only describe as a deadly rampage. He ran through the warehouse, stabbing and slashing his workmates. He badly injured four of his colleagues. They survived, but two others — Thierno Bah and Fitzroy Harris — were not so lucky. The stab wounds they received were fatal.

Pasieka was convicted on two counts of first-degree murder. He was sentenced to life in prison, with no chance of parole for 25 years.

With the facts I have given you, that may sound like a fair and appropriate sentence. However, as I’ve said, each murder trial tells its own story. It turns out that Pasieka was a diagnosed schizophrenic with a well-documented history of mental illness, but he’d found it impossible to get treatment. He told people later that he’d committed his murders in order to get help for his disease.

Some Canadians might well wonder, given Pasieka’s psychiatric history, why his lawyers didn’t try to have him declared “not criminally responsible on account of a mental disorder.” But Canada’s laws are narrow and clear; you can only be found not criminally responsible, or NCR, if you are incapable of appreciating the nature and quality of your actions, or of knowing right from wrong.

Pasieka didn’t meet that test. At the time of his stabbing spree, he was not floridly psychotic. He wasn’t hallucinating or hearing voices. He didn’t think his victims were monsters or devils. His thinking was even what you could call “organized”; he planned out his crime in advance, making a special trip to the mall to purchase his knives.

Was his capacity to commit his crimes diminished by his mental illness? I think it clearly was. This was not the crime of a rational man. But in Canada, we don’t have a diminished capacity defence. Pasieka’s lawyer argued strenuously that his client should not be convicted of first-degree murder. He tried to convince the court that manslaughter was the more appropriate conviction — or at least offered a more appropriate sentence.

However, that attempt didn’t work. So Jayme Pasieka, who suffered from a serious mental illness, went to jail for first-degree murder. Instead of hospitalizing him or giving him outpatient care for his schizophrenia before he acted, we waited until he killed two innocent people. Then we imposed the mandatory minimum sentence and locked him up for life. That’s not fair. That’s not justice. But the court had no discretion to craft a more rational sentence.

Let me tell you the story of Anne Semenovich. On April 15, 2008, Anne Semenovich shot her husband, Alex, through the head. That fact was never in dispute. Mrs. Semenovich, who was then in her 70s, was originally charged with first-degree murder.

Certainly, there was damning evidence of premeditation. She purchased a large incinerator not long beforehand. The man who sold it to her testified at trial that Mrs. Semenovich told him she needed it for her husband’s body. On the night of the killing, she went outside and shot her sleeping husband through the window of their farmhouse.

A victim of years of domestic abuse, Mrs. Semenovich had lived with a violent and mentally ill husband who, according to trial testimony, chased her with a knife, attacked her with a baseball bat and threatened to kill her on a regular basis.

Her grandson testified that he had reported the abuse and his grandfather’s deteriorating mental health to the local RCMP on a number of occasions. On the witness stand, he said the police told him they couldn’t help unless Mrs. Semenovich filed a formal complaint, something that he said his grandmother was too afraid to do. So he gave her a gun to defend herself and taught her how to use it. Eventually, she did.

With the help of family members, she put her husband’s body in the incinerator and turned it on. However, this was not a cold-blooded murder planned by criminal masterminds, because the family called a repairman to make a service call when the incinerator malfunctioned.

Picture if you will — and I often have — the sight that greeted the poor incinerator repairman who drove out to the Semenovich property west of Edmonton, opened the incinerator door, only to find Alex Semenovich’s not-quite-incinerated body. It sounds like a scene to rival Edgar Allan Poe.

As I mentioned earlier, the widow was originally charged with first-degree murder because, after all, this was clearly a premeditated act, even if it wasn’t a very well-premeditated act.

Then the Crown faced a dilemma. If they convicted Anne Semenovich of first-degree murder — as seemed inevitable — the mandatory minimum sentence, life in prison with no chance of parole for 25 years, would be a death sentence for the elderly defendant. If the case went to its conclusion, the judge would have no discretion to take into consideration Anne’s age or health or the lifetime of abuse she had suffered in his sentence.

The Crown, the judge and the defence came up with a pretty creative plea bargain. They allowed Anne Semenovich to plead guilty to manslaughter and accept a custodial sentence of four years. Even that was the mandatory minimum for manslaughter involving a firearm.

Did Anne Semenovich commit manslaughter? She didn’t shoot her husband in self-defence or in a moment of sudden high emotion; she carefully planned out his killing, right down to the purchase of the telltale incinerator. However, everyone involved realized that the mandatory minimum sentence for murder was inappropriate in this case. The only reasonable and just solution was a plea agreement predicated on a rather creative distortion of the facts.

Those are just two of the cases that I covered in my three decades as a journalist that demonstrated to me the problems with mandatory minimum sentences. One-size-fits-all justice doesn’t just undermine the essential independence of our courts and our judges, it often leads to manifestly unjust outcomes.

What we should hope for in our Canadian democracy is that we appoint qualified, well-trained and thoughtful judges whom we can trust to apply their legal skills, their personal morality and their common sense, whom we can trust to analyze both the facts of a specific case and the text of the Criminal Code and pass a sentence that is just.

If we don’t trust our judges to understand the law or to interpret the facts, we have a far deeper and more profound problem that can’t be solved with more and more mandatory rubrics. We can’t deal with that mistrust by undermining public confidence in the Canadian judiciary and by hobbling our judges before a trial even begins.

Bill S-208 doesn’t eliminate mandatory minimum sentences, but it does return to judges the right to exercise judgment in very specific circumstances.

This is an extraordinarily serious issue. Yet, as we confront it, I confess that I cannot stop thinking about Gilbert and Sullivan’s comic opera, The Mikado. You may remember The Mikado’s big number where he sings — and I shan’t sing for you:

My object all sublime

I shall achieve in time —

To let the punishment fit the crime —

The punishment fit the crime;

As the audience for the operetta, we are supposed to laugh at The Mikado’s song. In truth, if we can’t trust our judges to let the punishment fit the crime, it is we who make a laughingstock of the entire concept of an independent judiciary. It should not be the job of government to predetermine and pronounce a sentence before the facts are even admitted into evidence.

Instead, let’s restore public faith in our judges and let our jurists get on with the job that we’ve entrusted them to do. Thank you very much.